Grant v. City of Birmingham , 210 Ala. 239 ( 1923 )

In this case Wheadon M. Grant, complainant, sued the city of Birmingham, a municipal corporation, respondent, in a statutory bill to quiet the title to a certain lot in Birmingham, requiring the respondent to set forth and specify its title, claim, interest, or incumbrance upon the land, and by what instrument the same is derived and created. The bill was defective for its failure to aver that no suit was pending to test the right, title, claim, or interest of the respondent. The point was taken by demurrer against the bill, and the demurrer was sustained. The bill in due course was amended by the addition thereto of sections 6, 7, 8, 9, and 10, together with an addition to the prayer. Demurrer to the bill as thus amended was sustained, and complainant appeals.

The gist of Grant's complaint is that the street assessment made by the city of Birmingham and against his lot is illegal, because his lot does not abut on Sixteenth street, which was improved. While the proceedings relating to the improvement and the assessment against the lot are not set out in full in the bill, it is averred that the improvement was made under ordinance adopted in June, 1921, and that the city undertook to establish a lien against the lot for the improvement. On hearing on demurrer it is assumed, in the absence of express averments to the contrary, that the city's proceedings were under existing statutes relating to municipal improvements and improvement assessments (Code, §§ 1359-1420), and that the proceedings were regular.

Taking the bill on the face of it, with the constructions and presumptions necessarily indulged against the pleader, there has been a regular proceeding under the statutes by the city of Birmingham, as a result of which Sixteenth street has been improved, and Grant's lot has been assessed for a portion of the cost of the improvement, and Grant has either (1) failed to comply with section 1381 of the Code by appearing and filing a written objection to the assessment, or (2) if he did file proper objection in writing, (and this is not alleged in the bill) he has failed to appeal from that action of the city in fixing the assessment against his written objection, or (3) if he did so appeal, the decision has gone against him on appeal. In other words, section 6 of the bill avers that no suit is pending to test the validity of the city's lien, and it necessarily follows that the assessment has gone by default without Grant's objection made in the manner and form required by law, or else that he has not litigated, or that the litigation has been decided against him. In either event complainant is precluded from setting up his complaint in this action. He is bound by the statutory estoppel covered in section 1381 and the succeeding sections of the Code. He cannot bring this collateral attack against the adjudication already made by municipal authority. Brock v. Decatur, 185 Ala. 146,64 So. 73; City of Birmingham v. Wills, 178 Ala. 198, 59 So. 173, Ann. Cas. 1915B, 746; City of Woodlawn v. Durham, 162 Ala. 565,50 So. 356; Day v. Montgomery, 207 Ala. 644, 93 So. 609; Huntsville v. Goodenrath, 13 Ala. App. 579, 68 So. 676; Ex parte Gudenrath, 194 Ala. 568, 69 So. 629.

As stated in Brock v. Decatur, supra:

"A court of chancery can review such a judgment only upon the exhibition of some distinct and recognized ground for equitable interference with judgments at law, and no such ground is specified by the bill."

While Grant avers that his lot does not abut on Sixteenth street, and is 50 feet distant therefrom, for aught that appears by the bill at the time of the making of the improvement and the fixing of the assessment, his lot was in no sense a separate parcel from that property which does abut on Sixteenth street, and the presumption is indulged against the pleader. The municipality is protected by section 1376 of the Code, in making its assessment lists, by the provision that the list shall be sufficient if the name of the last owner is shown according to the records in the office of the judge of probate of the county. For aught that appears by the bill, the assessment book on this improvement is made according to the status of the lots of land as shown by the courthouse records as of the date of the assessment. It is immaterial that now, at the time of the filing of the bill, complainant owns a lot 50 feet removed from the street which carries on it an assessment lien; it may well be in perfect consonance with the allegations of the bill that the segregation of this lot from the other parcel was made by unrecorded deed or by deed executed subsequent to the making of the improvement and the fixing of the lien. In the Wills Case, supra, it is well said:

"Complainant's call upon the defendant to set forth and specify its lien or incumbrance, under the circumstances shown by the bill, is a perversion of the statute for quieting title, and merely evinces a desire to shift the burden of averment and proof in respect to the validity of the assessment proceeding contrary to the spirit and letter of section 1381 of the Code and the decisions on that point."

The decree of the circuit court in equity is affirmed.

Affirmed.

ANDERSON, C. J., and SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.

NOTE. — The foregoing opinion was prepared by Justice McCLELLAN before his resignation, and is adopted by the court.