Thorington v. City Council of Montgomery

• Decision Date: 10 May 1887
• Citation: 2 So. 513,82 Ala. 591
• Parties: THORINGTON v. CITY COUNCIL OF MONTGOMERY.
• Court: Alabama Supreme Court

2 So. 513

82 Ala. 591

THORINGTON v. CITY COUNCIL OF MONTGOMERY.

Supreme Court of Alabama

May 10, 1887

Appeal from chancery court, Montgomery county.

Bill in equity for injunction.

The bill in this case was filed by Sallie C. Thorington to obtain an injunction to restrain the city council of Montgomery from selling for taxes certain named parcels of real estate, on the ground that the city council had sold the same lands for the payment of taxes assessed against said lands, and that the complainant had become the purchaser at said tax sale evidenced by the certificate of purchase from the city. The defendant answered the bill, admitting substantially the material allegations thereof, but demurring on several grounds. A motion was also made to dissolve the injunction previously granted, and to dismiss the bill for want of equity. The chancellor sustained the demurrer, dissolved the injunction, and dismissed the bill; and these actions of the court are assigned as error.

Jones & Falkner and Watts & Son, for appellee.

Carrington & Graham, for appellant.

STONE C.J.

It is claimed that two grounds for equitable relief are shown in the present bill- First, that, the city council having sold the lots in controversy to Mrs. Thorington for unpaid taxes of 1884, a second sale of the same property cannot be made for unpaid taxes due the city accruing and delinquent before the year 1884; second, that inasmuch as, under the chancery decree, (Winter v. City Council, 79 Ala. 481,) six separate lots of ground were decreed to be sold for taxes accruing between the years 1873 and 1882, inclusive, three of which lots only were sold to Mrs. Thorington for the taxes of 1884 thus leaving three lots undisposed of, sufficient in value to pay the unpaid taxes, the city should be required to sell first those three undisposed of lots before resorting to the lots previously sold to Mrs. Thorington.

The case made by the bill is substantially as follows: Under a bill filed for the purpose by the city council of Montgomery against Mary E. Winter and others, the chancery court, in August, 1884, rendered a decree for taxes due before that year from Mrs. Winter on six several lots or parcels of land in the city, amounting to between four and five thousand dollars, declared a lien on said lots for the payment of the same, and ordered their sale if the amount of the decree was not paid as therein directed. On appeal that decree was affirmed in this court, December 10, 1885. See Winter v. City Council, 79 Ala. 481. In October, 1885, under the act approved February 17, 1885, (Sess. Acts, 1884-85, p. 767,) the city recorder of Montgomery ordered certain of said lots to be sold for unpaid delinquent taxes for the year 1884. On November 30, 1885, the clerk of said city council, after due advertisement, proceeded to sell three of said lots under said decree, and Mrs. Thorington became the purchaser, paying the amount of the taxes assessed against them for 1884, and all interest, charges, and costs claimed in that proceeding. The clerk thereupon gave her certificates of purchase, as the statute requires. The chancellor disposed of this case on the demurrer, and on the motion to dismiss for want of equity, and we can only consider the questions in the same light. There is nothing before us to authorize us to inquire into the bona fides of Mrs. Thorington's purchase. In our decision we must treat as true every sufficient averment of the bill.

It is contended for appellant that the city, by the sale made to Mrs. Thorington in November, 1885, cut off and destroyed all liens and rights it held for taxes due and delinquent before 1884. If that purchase was bona fide, and alone in her interest, the following authorities sustain that view: 2 Desty, Tax'n, 849; Burroughs, Tax'n, § 122; Preston v. Van Gorder, 31 Iowa, 250; Bowman v. Thompson, 36 Iowa, 505; Shoemaker v. Lacey, 38 Iowa, 277; Same v. Same, 45 Iowa, 422; Irwin v. Trego, 22 Pa. St. 368; Huzzard v. Trego, 35 Pa. St. 9; Jarvis v. Peck, 19 Wis. 74; Sayles v. Davis, 22 Wis. 225, E contra: Cowell v. Washburn, 22 Cal. 520; State v. Werner, 10 Mo.App. 41; Bowman v. Eckstien, 46 Iowa, 583. For a full discussion of this subject, see Cooley on Taxation, (2d Ed.) 444-449, and notes. But it is not our intention to decide this question.

It was stated above that the proceedings which led to the sale, and the sale to Mrs. Thorington, were had under the act approved February 17, 1885, (Sess. Acts 1884-85, p. 767.) The twelfth section of that act provides "that the certificate to the purchaser, under this act, shall authorize the purchaser or his assignee, to enter upon or maintain ejectment for the possession of the premises sold against the former owner, if the sale was made as...