432. Exempt, Execution, Mortgage.—The statutes in most of the States exempt the tombstones and lots in a cemetery from sale on execution.[769] Also, a cemetery lot can not be sold under mortgage after bodies have been buried therein, as any one may be arrested for desecration of graves.[770]
433. Public, Regulation.—The right to bury in a public cemetery is a privilege or license that is subject to municipal regulation, and revocable whenever the public necessity requires it.[771]
434. Nuisance, Public Health, Disease.—A cemetery is not a nuisance per se, but if it is proved that the burial of dead bodies in a certain cemetery does injure the public health and is a fruitful source of transmission of disease, the State may prohibit such burial at certain places within cities or adjacent to dwellings. But unless authorized by the Legislature a council has no right by ordinance to provide that no one shall be buried within half a mile of any habitation or public thoroughfare.[772] And where the [pg 227] Legislature authorized a city to remove the bodies interred and allow streets through the land, it had authority to do so.[773]
435. Devise, Easement, Rules.—The general rule of law is that a man can not devise away a cemetery lot in which members of his family are buried. He owns only a license or at the most an easement which is subject to the rules of the cemetery association and the police power of the State. However, there are some exceptions.[774]
436. Conditions.—A condition in a deed that the lot can not be sold, assigned, or transferred without consent of the cemetery corporation, is as good and binding as in any other conveyance of real estate.[775]
437. Inherits, Right.—Where a son inherits from his father the right to burial in a cemetery lot, he has the right to remove and inter therein the bodies of his grandmother and sister who had been buried elsewhere.[776]
438. Certificate.—A certificate was issued for the burial of Dennis Coppers in the following form:
“Office of Calvary Cemetery,
New York, December 1, 1873.
RECEIVED from Mr. Dennis Coppers, seventy-five dollars, being the amount of purchase money of a plot of ground 8 feet by 8 feet, in Calvary Cemetery.