Grayson v. Schwab , 235 Ala. 398 ( 1938 )

Complaint is made of the opinion that we did not treat the contention that the deed is not evidence that the sale occurred as it is not of anything else recited in it. We did refer to the fact that the deed is not evidence of the historical facts recited in it, but did not think it necessary to assume that this did not refer to the sale itself without which there could be no deed. Every deed must inherently be evidence of a sale or it is nothing. We are in this connection cited to a sheriff's deed as controlled by the law prior to the enactment of what is section 7706, Code, which makes a sheriff's deed prima facie evidence of a judgment, execution, levy, and sale.

In Carter v. Smith, 142 Ala. 414, 38 So. 184, 185, 110 Am. St. Rep. 36, the court quoted from Carrington v. Richardson,79 Ala. 101, to the effect that, "To authorize a recovery on a sheriff's deed in an action of ejectment, there must be a valid judgment, execution, levy, sale, and the deed." And in that case it is further stated that: "The proof of these several facts may not rest on the plaintiff in the first instance. The recitals in the deed make a prima facie case of some of these essential facts." And we have a long line of cases holding that all that is necessary to sustain a sheriff's deed is proof of a judgment, execution, and levy, Ware v. Bradford, 2 Ala. 676, 36 Am.Dec. 427; Love v. Powell, 5 Ala. 58; Gordon v. Bell,50 Ala. 213, 218; Ayers v. Roper, 111 Ala. 651, 20 So. 460; Warren v. Jones, 219 Ala. 213, 121 So. 519; the fact of a sale being presumed from the execution and existence of the deed.

In Reddick v. Long, 124 Ala. 260, 27 So. 402, relied on by appellant, there is a statement that there was no evidence of a tax sale, but there was no deed executed and no showing that the purchaser was entitled to a deed. There is some confusion in stating the facts, but notwithstanding the confusion there is a statement that no deed was made.

We are not persuaded that there must be independent proof that the sale was in fact made, when it is evidenced by the execution of a deed so reciting. Such proof may, in course of time, not be available; and it would be wholly unsatisfactory if there were parol evidence that it did not occur, when it is brought into collateral attack.

Complaint is also made of the opinion that it states that the final assessment ordinance contained a copy of the assessment roll, whereas such ordinance merely sets out the names of the property owners, a description of each lot, and the amount of each assessment, as finally made. The contention is that there might have been changes made from the original roll.

True, there might have been changes, but the final ordinance recites that no objections to the proposed assessment were made, and it then proceeded to fix the assessment as made in the roll, and then sets out the assessment roll as made final; so we are persuaded that they show that it is the same roll.

Moreover, the important feature as to its requirement prior to the final assessment as constituting a jurisdictional fact is its existence and accessibility when and after the notice was given, not so much its details at that time. The ordinance recited that the roll had been prepared and was accessible when the notice was given. That was the finding of the existence of a jurisdictional fact, conclusive on collateral attack. Driggers v. Cassidy, supra.

There is another matter urged, as before, which we did not discuss for obvious reasons. It is a claim that evidence of the publication of the notices was not sufficient, because the witness did not independently remember the name of the newspaper nor date of publication. He testified that he saw the notices in the paper, cut them out and pasted them in his book. There seems to have been memoranda on the notices, showing the name and date of the paper. This evidence is sufficient, though the witness does not remember the details, Williams v. Riddlesperger, 227 Ala. 113, 148 So. 803 (7), assuming that it was necessary. We think it was not necessary to make such proof, as we have said, on account of the findings recited as to them in the final ordinance; but no harm was done by doing so.

In brief filed by the city attorney of Birmingham supporting the conclusion reached, it is urged that we recede from the ruling in Drennen v. White, supra, to the extent that it was held that sales to satisfy street improvement assessments should be governed by the rule applicable to ordinary tax sales, unaided by statutory presumptions, requiring the purchaser to show affirmatively that the requirements of law with respect to such assessments and proceedings were observed in their essential processes.

We have expressed our views as to the effect of recitals of certain facts contained in the ordinances, and the weight which should be accorded them. But that situation should not in the least, we think, reflect upon Drennen v. White, supra. Certainly, such proceedings should have no more standing than those of any other sort of tribunal with limited and special jurisdiction. In all such, it is necessary for the record to show a finding of the jurisdictional facts, and when this is done, as we said in the former opinion, they are at least prima facie true as thus recited to have occurred, and as to some of them conclusive on such attack. But that does not infringe upon the rule that those jurisdictional facts, as thus found, must have occurred strictly as required by law. Lodge v. Wilkerson,174 Ala. 133, 56 So. 994. The case of Drennen v. White, supra, applies it to proceedings such as we have here, for it is well settled as respects all tribunals with limited or special jurisdiction.

We have many cases which have pointed out the jurisdictional facts in such a proceeding as this. Jasper Land Co. v. Jasper, supra; Walton v. Mobile, supra; Streater v. Town of Town Creek, supra. Those cases also sustain our views relating to the evidential value on collateral attack of the finding as recited in the ordinances of certain jurisdictional facts.

We cannot see wherein Drennen v. White, supra, is not well founded, and we think its effect should not be limited, understanding it as we have explained.

We are impressed that there is nothing in our former opinion in this case which is erroneous or needs modification.

The application is accordingly overruled.

Application overruled.

ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.