Thorington v. City Council of Montgomery

• Decision Date: 18 December 1889
• Citation: 7 So. 363,88 Ala. 548
• Parties: THORINGTON v. CITY COUNCIL OF MONTGOMERY.
• Court: Alabama Supreme Court

7 So. 363

88 Ala. 548

THORINGTON v. CITY COUNCIL OF MONTGOMERY.

Supreme Court of Alabama

December 18, 1889

Appeal from chancery court, Montgomery county; JOHN A. FOSTER Chancellor.

Bill by Sallie C. Thorington against the city council of Montgomery for an injunction against the sale of three lots under a chancery decree rendered in 1884, and affirmed, on appeal, in December, 1885, ordering the sale of these, and three other lots, for the unpaid taxes of 1873 to 1882, inclusive. In October, 1885, the city sold the three lots in question under the act of February 17, 1885, for the taxes of 1884 leaving the other three unsold, sufficient in value to satisfy the taxes for the previous years. Complainant became the purchaser at the sale in 1885, and the certificate was made out in her name. The answer substantially admitted the material allegations of the bill, but a demurrer on several grounds was also interposed, and a motion made to dismiss the bill for want of equity. The chancellor sustained the demurrer, dissolved the injunction, and dismissed the bill but his decision was reversed by the supreme court. 82 Ala. 591, 2 South. Rep. 513.

STONE C.J.

This case was before us at a former term. 82 Ala. 591, 2 South. Rep. 513. We then held the bill contained equity. We ruled, further, that Mrs. Thorington, the purchaser of three of the six lots at the tax-sale of 1885, was entitled, no other equities intervening, to have the three lots not sold at the former sale first sold under the decree for the older taxes, before resorting to the lots purchased by her. The case had been decided in the court below on motion to dismiss the injunction for want of equity, and our ruling was based alone on the case made by the bill. When the case returned to the court below, it was submitted for final decree on the bill, the answer, and the exhibit to each, without other testimony. The chancellor dismissed the bill, holding that complainant had not made a case for relief.

The substance of the case made by the bill will be found in the report on the former hearing, (82 Ala. 591, 2 South. Rep. 513,) and need not be here repeated. The bill remains as it was originally framed. Sworn answer was waived under the statute, and the answer was filed without oath. It "is entitled to no more weight as evidence than the bill." Code 1886, § 3424. Its admissions, however, are evidence against the defendant,-conclusive evidence; for it is not permissible to disprove them. McGehee v. Lehman, 65 Ala. 316; Latham v. Staples, 46 Ala. 462. Paragraph 6 of the answer contains this language: "Respondent admits that it levied a tax for the year 1885, [1884?] as stated in the sixth paragraph of the bill, and that the assessment was made against the property therein mentioned as the property of Mary E. Winter, and that, the said Mary E. Winter having failed to pay said tax, decrees were rendered by the Hon. E. A. GRAHAM, recorder of the city of Montgomery, as stated in said paragraph; and that said property was advertised for sale, and offered for sale, as stated in said paragraph, and that the same was bid off in the name of complainant at the sale thereof, and that a certificate of purchase was given in the name of the complainant, by the clerk of the city council, for each piece of property so advertised and sold. But respondent avers that complainant did not in fact purchase said property, was not present at said sale, but that said property was bid off by Joseph S. Winter, the husband of Mary E. Winter, and the father of complainant, and that said Joseph S. Winter paid the amount so bid for each piece of property, and at his request the clerk of the city council gave the certificates of purchase in the name of complainant, but delivered the same to Joseph S. Winter. And respondent denies that complainant furnished any money, directly or indirectly, or incurred any liability to any person for the money so used, but avers that complainant only permitted the use of her name by her father, Joseph S. Winter, in the said transaction."

The certificates of purchase given by the clerk state that "at said sale Mrs. Sallie G. Thorington bid off, and became the purchaser of, said property, at and for the sum of _____ dollars, being the amount of said decree, and the interest thereon to date; which said amount the said Sallie G. Thorington has this day paid to me."

We have said above that this case was heard on the pleadings and exhibits, without further testimony. It is contended before us, and the chancellor so ruled, that the burden of proof was on the complainant, Mrs. Thorington, to prove that the purchase at tax-sale in her name, made in November, 1885, was with money furnished by her, and not with money furnished by Mary E., the tax-payer, or by Joseph S. Winter, her husband and trustee. As part and parcel of this contention, it is claimed that Mrs. Thorington, when the purchase was made, was not present; that the bidding was by her father, Joseph S. Winter, and the money paid by him, and that her name was simply permitted to be used as a means of defrauding the city council of its rightful dues; that she (Mrs. Thorington) knew of the pending proceedings to subject the lots to the payment of anterior taxes; and that all this was done to screen the property from such payment, and for the benefit of Mrs. Mary E. Winter. If these facts exist, they are shown only by the unsworn answer of the city council, and in that part of it which is not responsive to any averment of the bill. Such averments are not evidence, even if sworn to. Barton v. Barton, 75 Ala. 400. Much less is such averment proved under our statute, which declares that when sworn answer is dispensed with the answer ceases to be evidence.

But, if it be conceded that Mrs. Thorington is the daughter of Joseph S. and Mary E. Winter; that the father made the bids, and handed in the money,-this alone, which it may require less strictness of proof to establish the fraud than if strangers were the parties, is not enough to stamp the transaction as fraudulent, or to shift the burden on Mrs. Thorington to show the money used in the purchase was her money. The sale was a public one, to the higest bidder, made in obedience to a judicial decree ordering the lots to be sold for unpaid taxes; and the public was invited to bid. It is not unusual for female purchasers at such sales to be represented by an agent. The clerk making the sale, in his certificate of the fact, recognized Mrs. Thorington as the purchaser,-as having paid the purchase money; and he so certified. This case is wholly unlike the transactions, frequently

brought before us, where...