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 can not 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 1878 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 first sell 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. 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. *595view : 2 Desty on Taxation, 849 ; Burroughs on Taxation, § 122; Preston v. Van Gorder, 31 Iowa, 250; Bowman v. Thompson, 36 Ib. 505; Shoemaker v. Lacy, 38 Ib. 277; Same v. Same, 45 Ib. 422; Irwin v. Twiggs, 22 Penn. St. 368; Huzzard v. Trego, 36 Ib. 9; Jarvis v. Peck, 19 Wis. 74; Sayles v. Davis, 22 Ib. 225. E contra, Cowell v. Washburn, 22 Cal. 520; State v. Werner, 10 Mo. Ap. 41; Bowman v. Eckstein, 46 Iowa, 583. For a full discussion of- this subject, see Cooley on Taxation (2d ed.), 444-9, 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 12th 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 required by the provisions of this act.” The present bill, and the relief it prays, rest on the regularity and validity of that sale ; and if not valid, the bill is without equity. If, therefore, the complainant denies that the sale was made according to the provisions of the act, she thereby admits she has no right to relief. The sale, then, being assumed to be regular, Mrs. Thorington was authorized to take possession of the property, or could maintain ejectment and recover possession. Hence, there was no obstacle in the way of her acquiring possession. It is settled in this State beyond further dispute, that to maintain a bill to remove or prevent a cloud on title, the complainant must be in the actual possession of the lands, and the bill, to be sufficient, must aver that fact.—McLean v. Presley, 56 Ala. 211; Baines v. Barnes, 64 Ala. 375; 3 Brick. Dig. 358, § 375. There is no averment in the present bill that the complainant was in possession, and it follows that, as a suit to prevent a cloud on title, it is without equity.
The'same decree in chancery which condemned to sale the,three lots in controversy, also ordered the sale of the other three lo.ts, in payment of the gross sum of unpaid taxes the decree ascertained to be due. The present case is, therefore, not one in which the defense can be urged, that the marshalling of securities prayed for will entail undue delay and expense in the application of the remedy. We think, on the uncontroverted averments of the bill, it was the right of the complainant to have the lots she setup no claim to first sold, in payment of the chancery decree. Gusdorf v. Ikelheimer, 75 Ala, 148; Cochran v. Miller, 74 Ala. *59650; Turner v. Flinn, 67 Ala. 529; 1 Sto. Eq. Jur., § 633. and notes; Lead. Cas. in Eq. (4th Amer. ed.) vol. 2, part 1, pp. 260-2; 3 Perry Eq. Jur., § 1414. Counter equities may exist which will change this rule, but we can not now consider them.—Prickett v. Sibert, 75 Ala. 315; Henderson v. Ala. Gold Life Ins. Co., 72 Ala. 32.
_ As a bill' to marshall the effects or assets, it contains equity, and the chancellor erred in dismissing it. Neither should the injunction have been dissolved at that stage of the case.
The decree of the chancellor is reversed, the injunction reinstated, and the cause remanded.
Reversed and remanded.
Clopton, J., not sitting.