Murphree v. City of Mobile

• Decision Date: 08 November 1894
• Citation: 16 So. 544,104 Ala. 532
• Parties: MURPHREE v. CITY OF MOBILE. [1]
• Court: Alabama Supreme Court

16 So. 544

104 Ala. 532

MURPHREE v. CITY OF MOBILE. ^[1]

Supreme Court of Alabama

November 8, 1894

Appeal from chancery court, Mobile county; W. H. Tayloe, Chancellor.

Action by the city of Mobile against Mary J. Murphree for an injunction. From an order granting the writ, defendant appeals. Modified.

Thomas H. Smith and Gregory L. & H. T. Smith, for appellant.

Peter J. Hamilton, for appellee.

COLEMAN J.

The appellant, Murphree, having recovered a judgment against the city of Mobile, caused certain parcels of real estate to be levied upon and advertised for sale under execution. The city of Mobile filed the present bill, in which it is averred that the property levied upon and advertised for sale was acquired, held, and used for public and municipal purposes and was necessary for such use and purposes, and not liable to levy and sale to satisfy the debts of the city. The bill prayed that the sale be enjoined, and, on final hearing relief was granted, and the plaintiff in execution perpetually enjoined from selling the property. From this decree comes the present appeal.

The statute provides (Code 1886, § 2514): "All property real or personal belonging to the several counties, or municipal corporations in this state, and used for county or municipal purposes, shall be exempt from levy and sale under any process, judgment or decree whatsoever." A part of the land levied upon is claimed by the city to be exempt, upon the ground that it is included in the cemetery of the city and used for burial purposes. This averment is denied by the respondent, and the issue is simply one of fact. The complainant was wholly failed to make good this averment. We infer from the contract for fencing the cemetery made between the city and one Harrison, in the year 1863, that at that time the city had acquired or claimed some interest in what seems to have constituted the Brown tract. Certainly the cemetery inclosed at that time embraced a part of this tract an undivided three-fourths interest in which belonged to one H. O. Brewer and Isaac Bell, Jr., and a small fractional interest to Wiswall. In the winter of 1866-67 the city took steps to purchase from Brewer and Bell their three-fourths interest in the land described as "adjoining and forming a portion of Magnolia Cemetery." According to the evidence, Brewer and Bell owned a three-fourths interest of that part of the Brown tract inclosed as Magnolia Cemetery and the remainder was outside the inclosure, but adjoining; so that the land contracted for from Brewer and Bell in fact formed a part of Magnolia Cemetery as inclosed by Harrison, and the remainder adjoined the cemetery. The contract of purchase from Brewer and Bell was concluded by the delivery of the deeds and payment of the purchase money some time during the year 1867. About this time, or shortly afterwards, the city employed Mr. Pillans to make a map of the city which, when completed, was paid for and accepted as a correct map by the city. The cemetery and burial places of the city are clearly marked on this map. The map made many years later by Nicol for the city shows that Magnolia Cemetery is bounded on the south by Virginia street. Section 42 of the Municipal Code, adopted in 1866, reads as follows: "Sec. 42. Be it...