
    MICHAEL McCORMICK vs. THE DISTRICT OF COLUMBIA, THEODORE SHECKELS and JOHN F. COOK, Collector of Taxes.
    Where a certificate of indebtedness, which is afterwards judicially declared void, is issued against a lot for benefits accrued to it by reason of opening an alley, and this certificate is delivered by the municipality to another lot holder in satisfaction of damages awarded him in the condemnation proceedings, an assignment of it by the latter to a third party as security for an indebtedness amounts to an equitable assignment of the claim for damages, ■ and entitles the assignee to enforce this claim against the city to the extent of the debt secured when default is made in the payment thereof..
    In Equity.
    No. 9497.
    Decided February 4, 1890.
    Justices Hagner, Cox and James sitting.
    Bill to annul a tax certificate. Th'e case was heard on an appeal from the decree below.
    The Facts are sufficiently stated in the opinion.
    Mr. H. H. Wells for plaintiff:
    The complainant’s case rests primarily on the doctrine that the removal of a cloud upon the title to real property is a well recognized and established ground for equitable relief, even where the cloud is caused by an illegal tax. Holland vs. Challon, 110 U. S., 15; Union Pacific Railway Co. vs. Cheyenne, 113 Id., 516; Chapman vs. Brewer, 114 Id., 158.
    The rigid doctrine which has sometimes been applied, that the collection of taxes will not be restrained, does not apply to special assessments made by municipal authority, and it was so decided by this court in Railroad and Bridge Co. vs. District of Columbia, 1 Mackey, 217.
    “We are of opinion,” this court say, “that the general language used in the classes of cases referred to applies to taxes levied by the sovereign alone,” and cites and quotes with approval: High on Injunctions, 369; State Railway Cases, 2 Otto, 613; Webster vs. Connors, 51 Md., 395.
    It is respectfully submitted that this lien certificate is a cloud upon the complainant’s title.
    It is not a valid lien, but it is a cloud. It ought not to be enforced. It has no validity as against the rights of the plaintiff, but it throws a cloud on his title.
    The defendants may never undertake to sell, or if a sale is made, the purchaser may never bring ejectment, but in either event, the cloud remains the same. The complainant cannot sell his property without first paying, or in some way discharging, the illegal claim thus made thereon.
    If it be urged that the absence from the record of the necessary facts required to show a compliance with the statute proves the proceedings to be void, we reply that the loss of the records and papers from the office only shows that they are not now there, but mislaid ; and the presumption which the law indulges, that public officers properly discharge their public duties, tends still further to show that the record was once regular on its face.
    Indeed, none of the illegalities complained of appear on the record, but the record, as far as shown, if free from objection.
    The following are illustrations of some of the presumptions allowed in favor of the acts done by public officers:
    
      “ A public officer, a collector of taxes, is presumed to have duly assessed and collected the taxes.” Hand vs. Columbia County Supervisors, 31 Hun., 531.
    “The presumption that a public officer has done his duty applies to the assessor of taxes.” Perkins vs. Nugent, 45 Mich., 156.
    “The presumption is in favor of the authority of a city officer to do a particular act which he has done, when it appears within the general scope of the duties peculiar to his office.” Kobs vs. Minneapolis, 22 Minn., 159.
    To the same point: O’Hare vs. Blood, 27 La. Ann., 57.
    
      The general rule on the subject is stated in Best on Evidence, Vol. 2, 630, Sec. 354. And see Cooley on Taxation, 543 and cases.
    ' There are many cases, however, which ignore the distinction between proceedings void on their face for illegality, and proceedings which, though illegal in fact, are on their face presumptively valid. Such cases, if they do not give relief on the ground of illegalty alone, will give it on the ground that anj' sale of the land under proceedings which assume to be by authority of law, and are conducted by public officers empowered to make such sales, -is such a cloud upon the title of the owner as he ought in equity to be relieved against, if the officers are proceeding unlawfully and have no authority in fact.” Cooley on Taxation, 544; Blackwell on Tax Titles, 483; High on Injunction, Sec. 539.
    The plaintiffs property is not subject to the tax, “the certificate has no validity as against his right, and it throws a cloud upon his title,”-which ought to be removed.
    Messrs. George C. Hazelton and S. T. Thomas for the District of Columbia:
    The provision of law, that three persons should levy the tax, was a condition precedent to a valid assessment of benefits by the Commissioners. The mode of levying a tax as the basis of benefits in such cases by three persons excludes the idea that the city surveyor could levy the tax. Valid assessments for benefits cannot be made except in the mode prescribed by the ordinance. Dillon on Mun. Oorp., Sec. 618; Welty on Assessments, Sec. 10; French vs. Edwards, 13 Wall., 511.
    In the case of Newell vs. District of Columbia, No. 27,964, at law (not reported), it was held by Chief Justice Bingham, in 1889, that an assessment for a street improvement made in January, 1872, by the surveyor of the District of Columbia and approved by the Governor was illegal.
    The ordinance concerning alleys above referred to in force at the time of the passage of the Act of 1871, changing the form of government of this District, was continued, among others, and was the law of the District on the subject in 1873, when Mr. Forsyth assumed to take the place of the “three disinterested citizens” provided for in the ordinance. R S. D. C., Sec. 91.
    Why the law should have been disregarded in this case is .almost beyond comprehension; but Mr. Sheckels was a volunteer. He did not purchase the assessment certificate in question from the District of Columbia. He was not compelled to buy it. He took it, as he says, as collateral security from one McNamara. He took it, as we say, with his eyes open, and was therefore bound to know whether the law in regard to the condemnation of alleys out of which it grew had been complied with. Dill, on Mun. Corp.,Sec. 851.
    No money, as the proceeds of the sale of this certificate, ever went into the District treasury nor is the District estopped to make the defense of ultra vires. Dillon on Mun. Corp.,-Sec. 457, and cases cited ; see, also, Secs. 539, 968, 969.
    Moreover, the decree in this case was rendered in favor of Mr. Sheckels against his co-defendant, the District of Columbia, not upon a cross-bill against the complainant or the District as a defendant, claiming affirmative relief, but upon his answer. It has been settled for a long time, and is not now to be questioned, that one defendant in a suit in equity cannot have a decree against a co-defendant without a cross-bill with proper charges. Barker vs. Belknap, 39 Vt., 169 ; Talbott vs. McGee, 4 Monroe, 379; Scott vs. Salor, 3 C. E. Green (N. J.), 301; Daniell’s Chan. Prac., 1550.
    It was not competent for the court below to enter a decree in favor of Sheckels against the District on his answer, even though he had shown himself entitled to relief, which is denied, and the decree, so far as it allows him to recover against the District, should be reversed.
    Messrs. William A. Cook and Cole & Cole for defendant Sheckels:
    The District was and is indebted to Sheckels as the representative of McNamara, in the amount of this certificate for damages to his property, ascertained by a proceeding instituted and prosecuted by it, and this certificate was taken as collateral to that indebtedness. If that certificate is void, it is so because of the negligence of the officers of the District in failing to conduct, according to law, the condemnation proceedings, and it is in accordance with the plainest principles of justice and equity that-it should pay this debt. And it was in accordance with equity practice and proceedings for the court to decree over against the District in favor of Sheckels, as it did in the decree appealed from. 1 Daniell’s Ch. Pr. (5th Am. ed.), 842, and note 3; 2 Id., 1371, and note 6 ; Corcoran vs. Canal Co., 94 U. S., 744; Contee vs. Dawson, 2 Bland., 292; Hurt vs. Crane, 36 Md., 31; Carroll vs. Warring, 3 G. & J., 500; Chamley vs. Dunsany, 2 Sch. & Lf., 709; Semmes vs. Strong, 1 Stew., 28 N. J. Eq., 131; Vanderveer vs. Holcomb, 2 E. C. Green, 17 Id., 547.
   Mr. Justice James

delivered the opinion of the Court:

In pursuance of a petition for the opening of an alley through square 762 of this city, and for that purpose, a portion of original lot 12, belonging at that time to one Hitz, was condemned and taken; his damages being found by the jury to be $653.25. Afterwards William Forsyth, surveyor, undertook to assess the benefit tax upon the lots benefitted by the opening of the alley, and charged the remainder of Hitz’s lot with $108.98 as benefit. This, after absorbing Hitz’s claim for damages, left his lot chargeable with $415.73, benefit tax, for which a certificate of indebtedness was issued against his lot.

It appears that a portion of a lot belonging to one McNamara was also condemned and taken for the new alley; that his damages largely exceeded the benefits charged against him, and that the certificate of indebtedness issued against Hitz’s lots — namely, for $415.73 — was given by the District to McNamara in part payment of the damages due him. McNamara, being indebted to the defendant Sheckels, transferred to the latter the certificate as collateral security.

Meantime, in July, 1873, the complainant had purchased a portion of Hitz’s lot, without any knowledge of the proceedings to charge it with a lien for this alleged indebtedness and paying the full value without any deduction for such lien.

On McNamara’s failure to pay his debt to Sheckels, the latter sought to enforce his collateral, and demanded, in am cordance with the ordinary course in such cases, a sale of the premises in satisfaction of the alleged lien.

It appears that, in pursuance of certain proceedings which it has not been considered necessary to state here, a part of this alleged indebtedness had been paid by Hitz, and the sums thus paid turned over to Sheckels, leaving a balance of $266.44 of said alleged indebtedness unpaid. It is for this balance that Sheckels demanded a sale.

We find that the proceedings for condemnation and the ascertainment of damages were regular, but that the subsequent proceedings for the assessment of benefits were not merely irregular, but wholly without authority. It follows that no benefit-tax has ever been assessed, and that the certificate of indebtedness delivered to McNamara in payment of his damages, and now held by the complainant, is inoperative and does not constitute a lien upon any part of the Hitz lot. The Equity Court was, therefore, right in enjoining a sale of the complainant’s lot in satisfaction of this certificate lien. In that case Sheckels claims that he is entitled to recover from his co-defendant, the District, the amount of damages to McNamara remaining unpaid.

We are of opinion that the transfer of this certificate by McNamara necessarily imported an assignment of his claim for damages, in respect to which that certificate had been given to him. He could not retain and enforce that claim at'the same time that the certificate was enforced by his assignee. If he lost that right by the assignment of the certificate he lost it by parting with it to his assignee. In equity, therefore, we must hold that Sheckels became as' signee of McNamara’s claim against the District for damages suffered by the taking of his property for public uses.

The only remaining question, then, is whether Sheckels may have a decree in this case against his co-defendant, the District, for the unpaid balance of the damages. It is objected that such relief should besought by a new bill or by a cross-bill.

It cannot be said that it merely happened to appear in the course of the proceedings that these defendants had a matter of their own in dispute. The equities between these defendants were necessarily disclosed in the development of the complainant’s case. The District, through its officer, the tax collector, was about to sell the complainants land for the satisfaction of some claim of its co-defendant. As the District had given their certificate as a payment of the condemnation damages, such sale would have been in substance an attempt to effect a payment of these damages. Thereupon the court arrests the hand of the District. Clearly it is competent, and it is according to good chancery practice, to decree at once that instead of paying its debt for these damages in that way, it must pay them directly to the party entitled to them. Indeed, it would be inexcusable to require the party in such a case to take the expensive and wasteful course of filing a new bill or proceeding bj7 cross-bill. When all the equities of the parties are thus brought before the court in the developement of the original case, they should be disposed of without further delay. Such an immediate decree between co-defendants is according to the highest precedents. Roone vs. Chiles, 10 Peters, 229; Pratt vs. Oliver, 3 McL., 31, affirmed by Supreme Court in Oliver vs. Pratt., 3 How., 333.

On the same principle we think it proper to decree, in behalf of the District, that on payment of these damages, the condemnation shall stand as perfect.

The decree will be so modified.  