Opinion
8 Div. 905.
May 10, 1928. Rehearing Denied June 7, 1928.
Appeal from Circuit Court, Morgan County; O. Kyle, Judge.
Eyster Eyster, of Decatur, for appellants.
There was no personal judgment rendered by the city against the railway company. Ala. City v. Ala. Power Co., 213 Ala. 644, 106 So. 39; N.C. St. L. v. Boaz, 213 Ala. 667, 106 So. 193; Code 1923, § 2189. Notice of assessment proceedings must be given. Birmingham v. Wills, 178 Ala. 208, 59 So. 173, Ann. Cas. 1915B, 746; Worchester v. Worchester Con. S. R. Co., 196 U.S. 539, 25 S.Ct. 327, 49 L.Ed. 591; Huntsville v. Gudenrath, 194 Ala. 571, 69 So. 629; Edmondson v. Jones, 204 Ala. 141, 85 So. 799. Assessment is against a segment of tract and not the railway company or property connected therewith. Ala. City v. Ala. Power Co., supra; N.C. St. L. v. Boaz, supra; Decatur v. So. Ry. Co., 183 Ala. 531, 62 So. 855, 48 L.R.A. (N.S.) 231. A judicial sale is not complete until confirmed. Sayre v. Elyton Land Co., 73 Ala. 96; McGaugh v. Deposit Bank, 141 Ala. 434, 38 So. 181; Harduval v. M. M. Bank, 204 Ala. 188, 86 So. 52. The bidder may substitute an assignee. 16 R. C. L. 75, 114; Archer v. Archer, 155 N.Y. 415, 50 N.E. 55, 63 Am. St. Rep. 688. The Alabama Traction Company was the purchaser at receiver's sale, although the property was brought by Weakley. Tallassee O. F. Co. v. Royal, 209 Ala. 439, 96 So. 620.
A. J. Harris, of Decatur, for appellee.
The traction company requested the work, and made payments on the assessment, and was bound by the assessment. Day v. Montgomery, 207 Ala. 644, 93 So. 609; Grant v. Birmingham, 210 Ala. 239, 97 So. 731; Ala. Tr. Co. v. Selma Bank, 213 Ala. 269, 104 So. 521. The personal judgment against the traction company was valid. Betancourt v. Eberlin, 71 Ala. 461; Code 1907, § 1374. Purchasers at judicial sales make themselves parties to the proceedings, and are bound by the decree of confirmation. Weakley purchased under the terms of the decree and advertisements, and assumed the payment of the assessments. Union Trust Co. v. G. E. Lumber Co. (C.C.A.) 248 F. 46; Harduval v. Merchants', etc. Bank, 204 Ala. 187, 86 So. 52; Cable v. Byrne, 38 Minn. 534, 38 N.W. 620, 8 Am. St. Rep. 697; Ala. Tr. Co. v. Selma Bank, 213 Ala. 269, 104 So. 521; Coleman v. Hatcher, 77 Ala. 217. By assigning his bid, the purchaser does not escape liability. 35 C. J. 95; Reynolds v. Timmons, 7 S.C. 486; Proctor v. Farnam, 5 Paige (N.Y.) 614; Cont. Tr. Co. v. Baltimore Ref. H. Co., 120 Md. 450, 87 A. 947, 46 L.R.A. (N.S.) 887.
Many of the questions here presented for review were disposed of adversely to the appellants on a former appeal of this case, when the merits of the bill were considered on respondents' demurrers thereto, and the demurrers held properly overruled. Alabama Traction Co. v. Selma Tr. Savs. Bank, 213 Ala. 269, 104 So. 517. However, on the final hearing on pleadings and proof, several questions were decided against respondents which merit review on this appeal.
It is insisted that there was no notice, or no adequate notice, to the respondent North Alabama Traction Company of the completion of the work on and adjoining its track, for which it was to be charged with the cost; and hence that it was not given the opportunity to appear and contest the making of the final assessment, and that that assessment was therefore void.
An inspection of the notice in question shows that it was not in very good form, in that it does not specify the "concrete car track pavement" as part of the finished work, while it does specify the curbs and gutters. Nevertheless, the notice given was to "interested property holders," and announced that "all work provided for under Improvement Ordinance No. 34, Series C, of the city of Decatur," was completed; and we think, in view of the clear specifications of the improvement ordinance, this notice was sufficient to advise every one that the entire work was completed, including the concrete paving on and about the car track.
It is insisted, also, that no proper and legal judgment of assessment was ever rendered, either against the North Alabama Traction Company personally, or against any of its property so as to specifically subject it to the lien imposed by the statute (Code, § 2189) as security for the payment of the cost of the improvement. The contention in fact is that the city proceeded throughout as though the Traction Company were an abutting property owner, and subjected it to the same sort of assessment, and to the same judgment, based on the same theory of liability — which, it is insisted, the city had no authority to do, and which resulted in a mere abortion and nullity.
Here, again, it must be conceded that the ordinance of assessment, which stands for the final judgment in the case, is not appropriately framed, that is, so far as the superficial arrangement and adaptation of its items and parts are concerned. Yet, when construed in connection with the initial ordinance and other proceedings, and with section 2189 of the Code, which must govern the Traction Company's assessment, we think that the ordinance fairly intends and comprehends an individual judgment against the company; and that the item, "car track pavement on Lee street, in Decatur," though placed in the column devoted to descriptions of the abutting properties improved, may fairly be treated as being what it plainly is — a description of the work done about the track, and not a description of the track as an item or parcel of property which has been improved.
We cannot hold that the final assessment was a nullity, nor that it can be avoided in this collateral proceeding, because of the defects above reviewed. If objection had been seasonably made before the council, a different conclusion might have been reached, had it been directly attacked on appeal.
As to the failure to specify the property of the company to be subjected to the lien, the same conclusion must be reached, and we are content to repeat what was said on the former appeal:
"We are not prepared to hold the failure to enter the detailed description of the property of the street railway upon the assessment roll defeated the lien, it not appearing that written objection to the assessment was made, or appeal taken to review the proceedings, but rather that the street railway company recognized the assessment and made payments thereon." 213 Ala. 269, 274, 104 So. 517, 521.
It results that on the merits of the decree no error can be pronounced.
We are clear, however, to the conclusion that the respondent Weakley purchased the street railway properties as the mere agent of the Alabama Traction Company, their present owner, and that this fact was known to the receiver when the sale was made. Indeed, the district court fully recognized that state of affairs, and confirmed the sale to Mr. Weakley's assignee as the real purchaser. An agent whose status is understood by the other contracting party, and who has authority to bind his principal, does not bind himself as obligor. Gillis v. White, 214 Ala. 22, 106 So. 166. As to the respondent Weakley, the decree will be reversed, and one will be here rendered denying relief to complainants.
In all other respects the decree will be affirmed.
Affirmed in part, and reversed and rendered in part.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.