PARK AND CEMETERY. 
307 
PROBLEMS OF PARK AND CEMETERY LAW 
A department of Legal Advice and Discussion on problems that confront 
parks and cemeteries. You are invited to ask questions zvhich zvill be answered 
by an attorney without charge, .-i. L. H. Street, Consulting Attorney. 
Forfeiting Portions of Unpaid-for Lots. 
Legal Editor, Park and Cemetery : I 
enclose blank forms of our certificate of 
purchase in use and a part of Ordinance 
Xo. 166 affecting the non-payment of the an- 
nual lot care tax. If one lot owner refuses 
to pay the annual tax for a period of three 
years, can we legally stop him from mak- 
ing any further burials or interments in 
his lot? — S. C., Kas. 
The certificates of purchase recite that 
they are “subject to all ordinances now in 
force and such as may hereafter be or- 
dained, and all rules and regulations now 
in force and such as are hereafter made.” 
And the ordinance in question contains the 
following provision : 
“Any person or persons who are the 
owners of any lot. lots or part of lot in the 
■Mma City Cemetery, who shall refuse, neg- 
lect or fail to pay the tax herein levied for 
a period of three years, provided such per- 
son or persons have not provided for the 
perpetual care of said lot, lots or part of 
lot as provided in Section Two, shall for- 
feit to the said City of Alma the unoccupied 
portion of such lot, lots or part of lot. 
The superintendent shall not receive tax 
from any person who is in arrears, unless 
all unpaid tax be paid by such person.” 
This ordinance is printed at the bottom 
of notice directed to delinquent owners in 
the following language : 
“The annual fee for the care of your lot 
in the Alma City Cemetery for the year 
191 . . is now due and should be paid at 
once. The amount due from you is $ 
Supt. Alma Cemetery.” 
As to persons who became owners of 
lots after the ordinance in question was 
adopted, there can be no reasonable doubt, 
under the decisions of the courts, but that 
the cemetery is entitled to forfeit unoc- 
cupied portions of lots, according to the 
terms of the ordinance. This is true, be- 
cause the reference made in the certificates 
of purchase to “ordinances now in force” 
makes the provisions of the ordinance as 
much a part of the contract as if those 
provisions had been expressly stated in the 
certificate. It would seem that this would 
be true, even if there was no such recital 
in the certificates, because everyone is pre- 
sumed to know the provisions of all ordi- 
nances relating to a municipal cemetery. 
But, although 1 am of the opinion that 
the ordinance and the form of notice of 
delinquency used by the Kansas cemetery 
are sufficient in themselves to strictly for- 
feit unused portions of lots when the tax 
has remained delinriuent for three years, 
I suggest that, if the ordinance does not 
already so provide, it should be amended to 
provide for giving of final notice to a de- 
linquent lot owner that forfeiture will be 
ordered unless payment be made within a 
stated time, and for notice of the forfeiture 
when actually ordered. This is especially 
true, if there are ant' circumstances reason- 
ably justifying a lot holder in assuming 
that forfeiture is not being relied upon by 
the cemetery authorities. It will give the 
owner fullest opportunity to avoid a for- 
feiture. which the law usually exacts be- 
fore rights can be cut off. Observation of 
this suggestion will minimize opportunities 
for unseemly disputes interfering with fu- 
neral arrangements, and for annoying liti- 
gation. 
As to persons who held certificates be- 
fore the ordinance was passed, there is a 
somewhat closer question as to whether 
their rights can be forfeited for delinquency 
in paying the tax, but I am of the opinion 
that the regulation is good even as to them. 
The certificate recites that it is subject to 
ordinances and regulations “hereafter” to 
be ordained and made, and the acceptance 
of such a certificate is held by the courts 
to be equal to an agreement on the party 
of the certificate holder to abide by any 
reasonable regulations which may be adopted 
to promote the interests of the public and 
the lot holders at large. 
The courts do not appear to have passed 
upon the validity of such an ordinance as 
is mentioned by our correspondent, but if it 
can be said to be a reasonable regulation, 
it follows that it is valid. Can there be 
any doubt as to the fairness or reasonable- 
ness of an ordinance which says, in effect, 
to a lot owner: You may provide for the 
permanent care of your lot, but, if you fail 
to do so, you must bear your fair propor- 
tion of the cost of properly caring for the 
cemetery lots. If you both refuse to keep 
your lot in proper order and to pay the 
cost thereof, you will be denied the privi- 
lege of making further interments in the 
lot which you permit to remain neglected? 
Rut I must qualify my opinion to this 
extent : When one becomes the owner of 
a lot under a plan whereby the cemetery 
undertakes to care for the lots without ex- 
pense to the owner, that plan becomes a 
part of the contract, and I do not believe 
that he can be afterwards requirerl, with- 
out liis consent, to either care for the lot 
or pay a tax to cover the cost of caring 
for it. The Missouri Court of Appeals 
seems to have stated a general rule of law 
in holfling in the case of Lodge vs. Hart- 
man, 170 .Southwestern Reporter, 670, that 
a lot owner’s obligation to pay the cost of 
caring for his plot must rest on agreement 
to that effect. However, as above indi- 
cated, his acceptance of a certificate under 
such an ordinance as is f|Uotcd by our cor- 
respondent amounts to a contract on his 
part to comply with the provisions of the 
ordinance. 
Legal Editor, Park and Cemetery : A 
certain party bought a lot in our cemetery 
on instalments, on which at the time of 
the purchase he paid one-third of the pur- 
chase price down and, according to the 
agreement, was to pay the remainder in 
monthly instalments. This he failed to do. 
We have been unable to collect anything 
from him for the past two years. Could 
we divide the lot and allow him the third 
that he has paid for and sell the remaining 
two-thirds? — L. A. R., Mass. 
Your rights depend upon the question 
whether the lot was conveyed to the pur- 
chaser or whether he has a mere contract 
for a deed or certificate of ownership on 
completing the payments. If he was given 
the same full title that is given purchasers 
who have paid in full, you have no right 
to sell off any part of the lot, since title is 
\'ested in him. The mere fact that the pur- 
chaser was given credit and has failed to 
pay up gives you no more right to divide 
the lot according to the amount remaining 
unpaid than a clothier who has sold a suit 
on which only one-third of the price has 
been paid would have to treat the trousers 
as paid for and reclaim and resell the coat 
and vest. 
But if you have reserved title to the lot 
until full payment of the agreed price, and 
only one-third of the price has been paid, 
I am of the opinion that you are entitled 
to resell two-thirds of the lot, if no inter- 
ments have been made in that part. But 
written notice should be first given the pur- 
chaser that unless he pays up in full within 
a certain time, say sixty days, a certain 
part of the lot will be sold. 
If it appears that the purchaser has been 
given full title to the lot on credit, and if 
no interments have been made in it, you 
will probably find that under the statutes 
of your state you would be entitled to sell 
the lot under judgment obtained against 
the purchaser for the balance due. At 
least, this appears to be true in several 
states. For instance, the provision of the 
Minnesota statutes that “a lot in a burial 
ground” shall be exempt from execution is 
followed by the provision : “No property 
cxcm[)ted hereby shall be exempt from at- 
tachment or execution in an action for the 
recovery of the purchase money of the 
same property.” 
But it should 1)C borne in mind that a 
sale of a lot on credit ordinarily vests the 
same title in the purchaser as a sale for 
cash , the same as a deed to a farm sold 
on credit would vest title in the purchaser, 
subject only to such security as the seller 
might have taken for i)ayment of the 
amount due on the i)ricc. ,\nd, on account 
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