City of Birmingham v. Emond , 229 Ala. 346 ( 1934 )

On Rehearing. At the time the public improvement in this case was initiated and begun, the entire parcel of land involved in this litigation was owned by the Mutual Real Estate Company. At the time of the assessment, this parcel, in its original status of ownership, was of an irregular shape, abutting on the 40-foot street (as laid out and opened by the city, the street improved) for a distance of about or over 460 feet. This parcel of land was subject to two mortgages. One covering a strip extending the entire length (over 460 feet) and abutting the street improved, and extending back therefrom about 36 feet at its eastern side and boundary, and about 11 feet at its western boundary. The other mortgage covered the remaining portion of the lot, a regular parallelogram — 350 feet by 150 feet — no part of which abutted said street. Hamrick v. Town of Albertville, 228 Ala. 666, 155 So. 87, 92.

We have indicated in the original opinion that the improvement was made pursuant to statute, and the assessment was levied against the abutting property or parcel of landpursuant to its then status, and the tract or parcel here involved being assessed as a unit as provided by the statute here indicated. The fact that the owner, Mutual Real Estate Company, had incumbered that tract by two separate mortgages, or moieties thereof, did not change its status as one lot or parcel of land to be affected by the improvement to be made under one ownership.

We now think and hold that section 2190 of the Code, as amended by Gen. Acts 1927, p. 764, § 19 (Hamrick v. Town of Albertville, 228 Ala. 666, 155 So. 87; City of Selma v. Hobbs,207 Ala. 420, 92 So. 900; Decatur Land Co. v. City of New Decatur, 198 Ala. 293, 73 So. 509), which contemplates and provides that an assessment be made in the name of the owner of each lot or parcel of land to be affected by the improvement, means the general owner (Ex parte State [State v. White Furniture Co.] 206 Ala. 575, 90 So. 896; Lowery v. Louisville N. R. Co., 228 Ala. 137, 153 So. 467), and not, as contended here, a mortgagee.

When an assessment is finally made and fixed, as provided by statute, against each lot or parcel of land described in the assessment roll, it constitutes a lien against each such lot or parcel. Code, § 2199, as amended by Gen. Acts 1927, p. 766, § 28; Hamrick v. Town of Albertville, 228 Ala. 666, 155 So. 87; City of Jasper v. Sanders, 226 Ala. 84, 145 So. 827. And such is the case and legal effect in the instant assessment.

The assessment made under the statute is, or becomes, a lien or charge against the land; and such lien or charge may be made the basis of a judgment in rem against that specific parcel of land, and not a judgment in personam against the owner or one having an interest in the land. Hamrick v. Town of Albertville,228 Ala. 666, 155 So. 87, 91, and authorities; Bellenger v. Moragne, 225 Ala. 227, 142 So. 657.

It is true that section 2196, Code, as amended by Gen. Acts 1927, p. 765, § 25, gives the right of protest for the protection of owners of an interest in lands so to be improved under the applicable statutes, yet it does not affect the jurisdiction to proceed and assess as granted and fixed by sections 2190 and 2199 of the Code, as amended by Gen. Acts 1927, pp. 764, 766, §§ 19, 28.

The fact that one of the original mortgagees, Emond, appeared under the provisions of the statute and protested the assessment made, and on adverse decision appealed to the circuit court and to this court, did not cause or authorize the splitting of the original amount of the assessment made and sanctioned by the verdict rendered; nor did this action by such party in interest warrant the rendition of judgment entered. Except for its inclusion as a part of the entire tract, that portion of the land under mortgage to the Atlantic Land Company would not be subject (under the statute) to the assessment as made, being separate from the tract subject to the Emond mortgage, which is adjacent to the street improved. Such assessments for street improvements are limited to property abutting the street improved. Hamrick v. Town of Albertville,219 Ala. 465, 471, 122 So. 448, and authorities; Goodman v. City of Birmingham, 223 Ala. 199, 135 So. 336.

This is not a proper case for the application of section 2210 of the Code, as amended by Gen. Acts 1927, p. 768, § 39, as was declared on the original hearing. In this respect that judgment is modified or reversed. That is to say, the verdict of the jury (the result of Emond's effort as an interested party or mortgagee) was not an erroneous reduction of the assessment made, yet it was a single verdict, assessing the whole amount ascertained and declared by the jury to the whole of the original lot. All parties in interest had the right of such ascertainment and declaration by the jury and judgment entered pursuant thereto and in like amount — to the amount and extent to which that entire lot or parcel of land was specially benefited as provided for by statute and our decisions — against the whole parcel and not separate parcels evidenced by the two mortgages respectively placed thereon by the owner.

The judgment of the circuit court, in failing to follow and adjudge as authorized by the verdict, was in error, in undertaking to apportion the amount of the assessment as fixed by the jury, to the separate tracts as mortgaged by the owners.

The matter of apportionment between the two mortgagees is aside from the interest of appellant city. This apportionment is one for adjustment between the parties in interest in a separate and appropriate proceeding to that end.

It results that the application for rehearing is granted, the judgment of affirmance is set aside, and the judgment of the circuit court is reversed and one here rendered fixing the amount of the assessment in agreement with the verdict of the jury against the property as a whole.

We adhere to the ruling on the original hearing, that no error intervened by the rulings in appellee's cross-assignments of error.

Rehearing granted; reversed and rendered on direct appeal of the city.

ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.