Troy v. Protestant Episcopal Church

• Decision Date: 21 December 1911
• Parties: TROY v. PROTESTANT EPISCOPAL CHURCH ET AL.
• Court: Alabama Supreme Court

56 So. 982

174 Ala. 380

TROY v. PROTESTANT EPISCOPAL CHURCH ET AL.

Supreme Court of Alabama

December 21, 1911

Appeal from Chancery Court, Morgan County; W. H. Simpson Chancellor.

Suit by Sophia B. Troy against the Protestant Episcopal Church and others for a sale of land for division, and to require defendants to pay a proportionate part of the costs of a public improvement. From a judgment sustaining demurrers to the bill, plaintiff appeals. Affirmed.

The facts made by the bill are that Mary Sheets owned certain described lots in the city of Decatur, and by will devised these lots to Sophia Troy for her life, with remainder to the Protestant Episcopal Church, for the use of the Orphans' Home of said church located at Mobile, Ala.; that about the 27th day of September, 1903, the said Mary Sheets died, and her will was probated, a copy of which is attached to the bill; that by an act of the Legislature upon the probate of the will the title to the property described vested in the respondent. It is averred that the property described in the vacant lots is well located and exceedingly valuable, but is not improved and brings in no revenue, and owing to the fact that one parcel is larger than the other, and owing to the location of each lot, it is averred that the land cannot be equitably divided between the owners thereof. It is then averred that under an ordinance the city of Decatur has recently constructed sidewalks of concrete, requiring the property owners to pay for same, and under said ordinance sidewalks were constructed around three sides of the above-described property; that the city has threatened to have some property sold to pay for the costs of constructing said sidewalk, and, owing to the fact that oratrix owns only a life estate, it is difficult for oratrix to raise the money necessary to pay the same, and respondent refuses to pay any part thereof. It is further alleged that it is inequitable and unjust for oratrix to pay or be required to pay the entire amount of this so-called improvement, and for the defendant not to be required to pay any part thereof. It is also averred that under said ordinance of the city of Decatur a lien is claimed by said city to exist upon said above-described lots to pay for the costs of the construction of said improvements. The bill was afterwards amended by making the St. Paul's Episcopal Church of Decatur, of the diocese of the state of Alabama, party respondent, and by making the vestrymen, whose names are therein set out, of such church, parties respondent, with the averment that the property, temporalities, and control of said church property is vested in the aforesaid vestrymen. It is further averred that the St. Paul's Episcopal Church has an organization and church building in Decatur, and that under the terms of the will it acquired a remainder or reversion in said property described. The prayer of the bill is that upon final hearing said described property be sold for division or partition, and that in and by said decree defendants' interest as remaindermen therein will be bound thereby; that in and by said decree respondent be required to pay its fair and proportionate part of the costs of construction of the pavement around said lot, and for general relief. The bill was subsequently amended by alleging the location of said lot to be in the town of Decatur, and that the sidewalks were constructed under an ordinance, passed by the municipality levying a special tax, creating a lien upon said lots for the payment of the construction. The expense of construction is alleged to be $519.64, payable in installments of $51.19 each year for a period of ten years. It is further alleged that the improvements made are permanent, increasing the value both of the life estate and the estate in remainder. It is further alleged that the city is threatening to have said property sold to pay for the costs of construction of said sidewalk, in the event payment is not made thereof as the payments fall due, and has threatened to sell such property for the construction of said sidewalks for what is now due thereon under said ordinance. It is then alleged that defendants should be required by the decree of this court to bear their ratable proportion of the costs of said improvements in proportion to the benefits accruing to plaintiff as the life tenant of said property and to defendants as remaindermen. The prayer is also amended seeking to require the defendants to pay so much of the costs of said improvements as is proportionate to the benefit accruing to them from the increased value of the property by reason of the permanent improvement.

The demurrers were to the bill as last amended, and are as follows: "(1) No equity. (2) No facts showing that the said assessment by the city of Decatur...