The prevailing opinion prepared by my brother, Mr. Justice FOSTER, and adopted by the court, holds in effect that, if the facts alleged in the cross-bill are true, the complaining property owner may appear before the present city council of Florala and have the spurious entries made by the clerk expunged from the minute book, and, if the city council refuses to make the necessary order to that end, it may be compelled to do so by mandamus.
This, to my mind, would leave the bondholder in a situation in which he could have no relief. He is not a necessary party to the proceedings outlined by the majority, and would have no voice therein, although the existence of the resolution of the city council confirming the assessment is essential to the lien sought to be enforced. Certainly, in the absence of such order or resolution of the council, no lien exists. Code 1923, § 2199; Bailey v. Levy, 213 Ala. 80, 104 So. 415; Stovall v. City of Jasper, 218 Ala. 282, 118 So. 467; City of Birmingham v. B. B. Hudson, post, p. 332, 132 So. 1.
The reason stated that makes the procedure outlined necessary is that a bill in equity to cancel and remove a cloud from title is a collateral attack on the thing constituting the cloud, that such a proceeding is not a proceeding "provided by law for the purpose of avoiding" such order or resolution.
This conclusion, in my judgment, is unsound.
The purpose of the statute that authorizes the filing of a bill to quiet title is to clear the title of all clouds, and to that end the court is authorized to cancel and annul everything that clouds the title. Grayson v. Muckleroy, 220 Ala. 182,124 So. 217.
And, even before the statute was passed authorizing such proceeding, such great jurist as Chief Justice McClellan thought that a bill to remove a cloud from title was a direct attack. I quote from Monroe v. Arthur, 126 Ala. 364,28 So. 476, 85 Am. St. Rep. 36: "That the conveyance is invalid, and to be so declared upon proper attack, has been determined by this court in the case of Hayes v. Building Loan Association,124 Ala. 663, 26 So. 527, 82 Am. St. Rep. 216, and the only question now presented is whether it should have been held void upon the collateral attack made on it in this action. We do not think it should have been so held. The deed was not void on its face, but only because of extrinsic facts resting in parol. These extrinsic facts did not involve any matter for which the execution of the paper could be assailed collaterally, as a mere incident to a proceeding prosecuted for a purpose other than the cancellation of the instrument. In such case the infirmities inhering in the execution of the mortgage can be shown only upon a direct attack on its validity, by which is intended some proceeding begun and prosecuted for the express purpose of having the conveyance adjudged void and canceled, — as, for instance, a bill in chancery setting up the facts as to the notary's incapacity, and praying that the alleged deed be decreed to be surrendered up and canceled, etc.; and, until cancellation is decreed in such or other direct proceeding, the conveyance will be treated by all courts as valid and efficacious."
The act assailed in Monroe v. Arthur, supra, the, taking of the acknowledgments, was, as is well settled in Alabama, a judicial act, and there would be as much reason in saying that the party affected must first apply to the notary to annul the acknowledgment, as here to say that the cross-complainant must first apply to the city council to strike from its minutes a spurious and unauthorized entry.
The authorities are agreed that any proceeding provided by law for avoiding a judgment or order of a judicial officer or body is a direct attack. Miller v. Thompson, 209 Ala. 469,96 So. 481, cited by the majority; Fowler v. Fowler, 219 Ala. 453,122 So. 440; Van Fleet on Collateral Attack, § 2.
"Equity will ordinarily grant relief against an assessment by vacating it or setting it aside or enjoining its enforcement where the assessment or steps taken in conformity therewith constitute a cloud on the title of the property assessed." 44 C. J. 750, § 3296.
In such proceeding in equity all parties interested may be brought before the court, and the equities of the bondholder protected. Hayes v. Building Loan Association, 124 Ala. 663,26 So. 527, 82 Am. St. Rep. 216.
Another thought stressed in the prevailing opinion is that the entry was made by the clerk of the city council in the regular minute book, though the entry was not authorized by the city council, the clerk had authority to enter the minutes generally, and therefore the entry in question is not subject to collateral attack.
It is well settled that an entry so made by the clerk of a court, not under the supervision of the court legally organized, is absolutely void. Wynn et al. v. McCraney et al.,156 Ala. 630, 46 So. 854; Hodo v. State, 156 Ala. 43,47 So. 134; Adams v. Wright, 129 Ala. 305, 30 So. 574.
The prevailing opinion assumes that the thing attacked by the cross-bill is a record, *Page 164 and applies to it the principles applicable to judgments and decrees.
For the foregoing reasons and those stated in the opinions heretofore promulgated, I respectfully dissent.