125 So. 635 | Ala. | 1930
In order to pass intelligently upon this case, the bill should set out to whom the property was assessed for local improvements, as provided by sections 2191 and 2192 of the Code of 1923. From aught appearing, it was assessed upon the book to the complainant or the class to which he belongs and represented by him, and, if such was the case, they would be bound thereby. Grant v. Birmingham,
As we understand, the bill does not proceed under the statute to quiet title, for, if it did, it would be defective, as pointed out by appellants' counsel, but it seeks, independent of the statute, to cancel the deed by those in possession and who must rely upon extrinsic evidence to show the invalidity of the assessment and sale. Independent of the statute for the quieting of titles and the determination of claims to real estate, courts of equity have jurisdiction to cancel and remove a specially described cloud on complainant's title when the owner is in possession and the evidence of the alleged cloud is not void on its face and extrinsic evidence is necessary to show its validity. Bank of Henry v. Elkins,
While, as above pointed out, the complainant may be estopped from setting up the invalidity of the assessment under which the sale was made, it is perhaps well enough to decide the question as to the liability vel non of the property as described in the bill for street improvements, not only for the future as to this case, but as to all cemeteries of a similar nature.
Section 91 of the Constitution of 1901 forbids the taxation of cemeteries, but, as pointed out in the case of Huntsville v. Madison County,
We think this statute is broad enough to exempt from sale, under any legal process, any lot or place wherein is buried any resident or the member of his family, and the bill avers that "practically all of said plot of ground has been used for the purpose aforesaid" (that is, for the burial of the dead) for over sixty years, free of charge. As the law exempts such a place from sale under process, and as we have heretofore held that the only method of collecting this assessment for street improvements is by a proceeding in rem, Huntsville v. Madison County, supra, the property must of necessity be exempt from such an assessment. This holding must be confined to the case in hand; that is, a free public cemetery wherein the space is practically filled up with the graves of the dead and the enforcement of the assessment lien would involve a sale of the space occupied by a grave or graves. We intend no expression as to a result in case of a cemetery operated for the sale of lots for profits which may have lots on the market for sale and which may not have been acquired and used for burial purposes.
For the error above pointed out, the decree of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
GARDNER, BOULDIN, and FOSTER, JJ., concur. *393