Bailey v. Folsom , 207 Ala. 329 ( 1922 )

This bill, to which demurrer was sustained in a single aspect, was filed by the appellant, a taxpayer, against the tax officials of Coffee county, seeking to restrain such officials from making any levy or seizure of appellant's property in the threatened effort to collect taxes demandable for the tax year 1919-20 — this upon the theory that there had been no legally efficient substitution of lost or destroyed papers and books evidencing the validly effected assessment, including valuation, of appellant's real and personal property for taxation for the tax year 1919-20. In substance, the allegation of the bill is that the substitution of these lost or destroyed papers and books was undertaken, without any authority, by these tax officials, and that, though apparently valid, these substituted records effected to afford the means for his property's subjection or appropriation to the satisfaction of the tax demands recited in the face of such substituted records. The bill avows the willingness and readiness of appellant to pay his taxes for the tax year 1919-20 whenever the true amount is competently ascertained; he as well as the officials being wholly ignorant of the amount justly demandable. Through amendment of the bill filed August 17, 1921, these defining averments were interposed:

"Complainant avers that he recognizes in this cause the lien of the state of Alabama and county of Coffee, on the property described herein and on property belonging to the complainant for the unpaid tax for the tax year 1919-20, which lien was evidenced by a correct assessment and entries thereof upon the records, which have been lost or destroyed; and it is not the purpose of this complainant to remove such lien as a cloud upon his title, or to ask for its removal; but that of which the complainant complains is the act of the said respondents in concert as herein alleged and without legal authority in substituting in the manner stated to be entered upon the books and records relating to tax matters in Coffee county, as and for the original and without notice to this complainant and proceeding thereunder, that is, under said alleged substituted assessment to demand and collect the tax represented by such assessment. Complainant avers that in the matter of substituting such assessment said respondents were acting without authority."

It is also averred that prior to the loss or destruction of the records mentioned, the assessment for the tax year 1919-20 had been "completed in every respect" and the perfected books delivered to the tax collector as his lawful warrant for collecting the same; and that the assessments thus completed "created a lien," necessarily in favor of the state and county, upon the real and personal property of the complainant.

Both from the averments of the amended bill and from the express avowals of the complainant therethrough it appears that the object of the bill is not an effort to invoke equity's jurisdiction to remove a cloud upon title. The bill admits the perfection of a lien upon complainant's properties in consequence of valid assessment for taxation. The subsequent loss or destruction of the evidence of such lien did not annul the lien, though according to the bill's allegations, the exact amount (taxes) of the lien was thereby rendered unobtainable from competent record evidence. A cloud on title is not cast by a valid claim which may be enforced in law or equity; invalidity in fact — alone susceptible of establishment by extrinsic evidence — is essential to the existence or threatened casting of a cloud which equity will exercise its jurisdiction to remove. Rigdon v. Shirk, 127 Ill. 411, 412,19 N.E. 698; Shults v. Shults, 159 Ill. 654, 43 N.E. 800, 50 Am. St. Rep. 188, 191; 6 Pom. Eq. § 724, and note; Ensley v. McWilliams, 145 Ala. 159, 167, 41 So. 296, 117 Am. St. Rep. 26, approving the pertinent doctrine of Shults v. Shults, supra.

Since "the density of the cloud can make no difference in the right to have it removed" (Whitney v. Port Huron, 88 Mich. 268,272, 50 N.W. 316, 317, 26 Am. St. Rep. 291, 293), it is, on the other hand, to be concluded that a lien securing the payment of money is not a cloud if it is valid as a security for the payment of any sum, however small. Excluding, as must be done, the bill's reference to the category of bills to remove or to prevent a cloud upon title, it is without equity. In the aspect of the bill which seeks to protect or to quiet the complainant's right or title to personal property, it must fail, for that equity has no such jurisdiction. Mobile, etc., Co. v. Hartwell, 206 Ala. 7, 89 So. 446. With respect to complainant's real estate, the substance of the bill's design is to have adjudged illegal and invalid, because unauthorized by law, the substituted tax papers and books which the named tax officers of Coffee county have assumed to create in lieu of admittedly valid documents and books of assessment, importing a lien for taxes, that have been lost or destroyed; waived said plea in abatement, and the court such substituted records or papers being, apparently, originals. When it is considered that complainant's real estate cannot be subjected to sale for unpaid taxes without hearing, after notice, and decree of the probate court (Rev. Laws 1919, § 240 et seq., Gen. Acts 1919, p. 352 et seq.), the effect of the amended bill's effort is to have the substituted documents and books pronounced invalid, with the result to attend of depriving the probate court of the evidential bases upon which to found a decree condemning the real estate to sale for unpaid taxes, a protective object that, so far as complainant's real estate is concerned, could be as well and as effectively accomplished by complainant in the probate court, by there objecting to their validity on the hearing of the proceeding to condemn to sale the real estate for the payment of unpaid taxes. On that hearing complainant may present and have judicially determined the essence of the contention set up in the amended bill. He has therefore an adequate remedy otherwise provided, and, in consequence, his bill presents no ground for equitable relief.

The demurrer objecting to the equity of the bill was well founded, and should have been sustained. The decree sustaining the demurrer, though on another ground, is affirmed.

Affirmed.

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