Jones v. Lacey

• Decision Date: 16 January 1930
• Docket Number: 6 Div. 448.
• Citation: 125 So. 635,220 Ala. 390
• Parties: JONES ET AL. v. LACEY.
• Court: Alabama Supreme Court

125 So. 635

220 Ala. 390

JONES ET AL. v. LACEY.

6 Div. 448.

Supreme Court of Alabama

January 16, 1930

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill in equity by S. L. Lacey against J. M. Jones, Jr., and others as Commissioners of the City of Birmingham, and Ida V Mitchell. From a decree overruling a demurrer to the bill respondents appeal. Reversed and remanded.

Wilkinson & Burton, of Birmingham, for appellants.

J. Wiley Logan and W. A. Weaver, both of Birmingham, for appellee.

ANDERSON C.J.

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, 210 Ala. 239, 97 So. 731. The bill does aver that no notice was served on the complainant or relatives of deceased persons buried in said lot, but this is no charge that the assessment was not made and the notice given by publication as required by the statute. In other words, the bill does not make a proper showing that the complainant was not bound by the assessment, and which is essential to its equity, and the trial court erred for this reason in not sustaining the demurrer to the bill.

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, 165 Ala. 628, 51 So. 821; Joiner v. Glover, 201 Ala. 279, 78 So. 55; Frazier v. Frazier, 211 Ala. 176, 100 So. 118; King Lumber Co. v. Spragner, 176 Ala. 564, 58 So. 920. The bill avers such possession by the complainant and the public generally as to which the land described is susceptible, and it will require extrinsic evidence to show that it was not subject to the assessment for street improvements.

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, 166 Ala. 389, 52 So. 326, 139 Am. St Rep. 45, this did not...