Kerlin v. Ramage

PER CURIAM. Complainant’s ^appellee's) bill shows that W. J. Kerlin during his lifetime was the owner of a lot in Oakwood Cemetery in the city of Montgomery, “which said lot,” to quote the bill, “was used by said W. J. Kerlin for burial purposes”; that he sold to said Kerlin certain granite slabs, vases, bases, and Bedford coping stone, and used the same in improving the said lot under and in pursuance of a contract in writing which provided, among other things, as follows: “Title to work herein mentioned shall remain vested in builder [complainant] until fully paid for;” and that Kerlin died without paying for said materials and improvement. The widow and daughter of Kerlin, his sole heirs, are made parties defendant, and the prayer is that a sale of the lot be decreed for the satisfaction of complainant’s debt. The theory of the bill is that, since complainant cannot maintain detinue for the slabs, vases, bases, and coping stones used in the improvement of the lot, because they have been attached to and become a part of the realty, nor can maintain trover because there has been no wrongful conversion, nor can have a lien under the materialman’s statute, because he has not parted with title, the clear intent and meaning of the contract to create a security in some sort can only be made effectual by a decree declaring the contract, by which he retained title, an equitable lien or mortgage in his favor on the materials so furnished and upon the lot into which they have been incorporated— this in accordance with the doctrine of Ross v. Perry, 105 Ala. 533, 16 South. 915, and the cases there cited. The court is of the opinion that the doctrine of Ross v. Perry should have no application in the circumstances of this case. The relief complainant seeks can be effectuated only upon consideration that the title to the soil of this lot be exposed to public sale and that the purchaser be invested with the right to dispossess the dead who rest there. We assume — we are justified on the averments of the bill, though they are peculiarly uncommunicative on this point, in assuming against the pleader on demurrer — that Kerlin, or perhaps some one from whom he took by inheritance, had acquired the lot in ques-. tion as a part of a larger tract which was devoted to use as a public cemetery and laid off into convenient lots for that purpose. In Bessemer Land & Improvement Co. v. Jenkins, 111 Ala. 135, 18 South. 565, 56 Am. St. Rep. 26, this court quoted with approval the following language which had been used by the Supreme Court of New Hampshire in Page v. Symonds, 63 N. H. 17, 56 Am. Rep. 481, in reference to the right of burial in a public cemetery: “Such right of burial is pot an absolute right of property, but a privilege or license, to be enjoyed so long as the placo continuos to-be used as a burial ground, subject to municipal regulation and control, and legally revocable whenever the public necessity requires.” In Anderson v. Acheson, 132 Iowa, 744, 110 N. W. 335, 9 L. R. A. (N. S.) 217, the Supreme Court of Iowa, citing and quoting from many cases, says: “The courts quite generally hold * * * that the purchaser of a lot in a public cemetery, though the deed be absolute in form, does not take any title thereto. The mere privilege or license to make interments in the lot so purchased, exclusive of all others, is all that is acquired thereunder.” *429 To the same effect is the text of 5 R. C. L. ■ § 10, pp. 244, 245, where many cases are cited. And see the cases collected in a note to 6 Oyc. 717. This rule of law proceeds from the sound sentiment of all civilized peoples, which regards the resting place of the dead as holy ground and requires that in some respects it be not treated as subject to the laws of ordinary property; and hence it is held by the courts quite generally, on grounds of public policy, that, while the purchaser or licensee takes a property right, which the law will' recognize and protect against invasion as long as the place continues a burying ground (111 Ala. 135, 18 South. 565, 56 Am. St. Rep. 26), and which will descend to his heirs, impressed with and subject to the use to which he has devoted it in his lifetime (Kingsbury v. Blowers, 65 Ala. 479, 39 Am. Rep. 14), he acquires no such interest or right of possession as will support an action of ejectment, for “within these hallowed precincts no court would desire to send the sheriff with a writ of possession.” Stewart v. Garrett, 119 Ga. 386, 46 S. E. 427, 64 L. R. A. 99, 100 Am. St. Rep. 179; 6 Cyc. 717, note. Nor can a lot in which human bodies have been' interred ever become the subject of administration (Kingsbury v. Flowers, supra), or partition, nor can it be mortgaged for the security of debts (Anderson v. Aches on, and 5 R. C. L., supra). While our statutes exempting lots in cemeteries from taxation, and from levy and sale under execution or other process, do not of themselves lead necessarily to the result that no mortgage of such property may be declared or enforced, they help to demonstrate a policy which leads to that result. The court does not consider that the decision in Bonham v. Loeb, 107 Ala. 604, 18 South. 300 conflicts with the holding here, which is that complainant’s bill, on the considerations set out above, is without equity. Reversed and remanded. MAYFIELD, SAYRE, SOMERVILLE, and THOMAS, JJ., concur.