169 Ky. 308 | Ky. Ct. App. | 1916
Opinion op the Court by
Reversing.
This action was brought in ordinary in the Bath Circuit Court by the appellee, John A. Daugherty, against the appellant, David Anderson, for the alleged purpose of having a sheriff’s deed, which appellant held for a tract of land in Bath County, adjudged to be void and cancelled, and to recover the sum of two hundred dollars in damages, which he claimed that he had suffered because of the detention of the land by the appellant.
The appellee, in his petition, alleged that he was the owner and entitled to the possession of the land; that Millie Hornback was the owner of the land at her death, on July 24th, 1900, and had been the owner since 1891; that she was married to Wm. Hornback in 1883, and she left surviving her, at her death, six children, all of whom were infants; that Seth Botts, Sheriff of Bath County, sold the land for taxes due for the year 1905, and conveyed the same to appellant; that the sale of the land was wrongful, fraudulent and not done in due course of law, for the following reasons, viz.: (1) That Wm. Hornback was the ownér of a life estate and in possession of the land, but it was not assessed for the year 1905 as the property of Wm. Hornback, but was assessed as the property of B. F. Snelling, guardian of Millie Hornback’s heirs, when said Snelling was never at any time the guardian of the heirs of Millie Hornback; (2) that more land was sold than was necessary to pay the taxes and costs; that the sheriff, before making the sale, never made any demand nor tendered receipt to Wm. Hornback for the taxes, and never mailed to him any notice of the taxes or the sale of the land; (3) that, the sheriff never filed in the county clerk’s office any report of the sale; (4) the purchaser never filed his certifi
The appellant demurred generally to the petition,, but the court overruled the demurrer, to which appellant excepted. The court upon its own motion, over the objection of appellant, transferred the case to the equity side of the court’s docket.
The appellant, by his answer, denied the appellee’s ownership of the land, or that he was entitled to its possession, and alleged that the land was sold for taxes for the year 1905, and that he became the purchaser of same on March 12th, 1906, and thereafter, the land not having been redeemed, the sheriff, on the' 31st day of May, 1908, conveyed same to him by a deed, which he caused to be recorded, and took possession of the land in April, 1906, and had been in the adverse possession of it, claiming it as his own ever since that time; that, thereafter, in 1910, while he was in the adverse possession of the land, the heirs of Millie Hornback conveyed the land to T. J. Daugherty, who, thereafter, was adjudged a bankrupt, and his interest in the land sold, when the appellee became the purchaser of it; that the claim of appellee was ehampertous and void on that account.
The issues were completed by a reply, which traversed the affirmative allegations of the answer.
The appellee filed evidence, which proved that Millie Hornback died in the year 1900, leaving her husband, Wm. Hornback, and her six children surviving her; that Wm. Hornback became the husband of Millie Hornback in 1883, and she acquired ownership of the land in 1891, and issue of the marriage having been born alive, Wm. Hornback, after her death, was the holder of all the land for his lifetime, as a tenant by the curtesy; that he was in possession of the land until 1907, when the dwelling upon it having burned, he moved away from it; that it
The cause having been submitted upon the pleadings and evidence, the court adjudged that appellee, was
William Hornback being yet alive, whoever has title to his life estate in the land would be entitled to its possession and the rents and profits of it. After the death of Millie Hornback, her husband, William Hornback, holding the land as a tenant by the curtesy, was the owner of the first freehold estate in the land, as he was entitled to occupy and use it during his lifetime, and might convey his estate to another and vest the vendee with the estate which he held. Section 4049, Ky. Statutes, provides that: “Real estate or any interest therein shall be listed in the county or district where situated against the owner of the first freehold estate therein. ” It is the duty of a life tenant to list and pay the taxes on the land. Creutz v. Heil, &c., 89 Ky. 429; Arnold v. Smith, 3 Bush 163. The land in controversy, for the year 1905, was not listed for taxation against William Hornback, but against B. F. Snelling, guardian of Millie Hornback’s heirs. William Hornback was not an heir of Millie Hornback. B. F. Snelling was not tie guardian of Millie Hornback’s heirs, and the interest which Millie Hornback’s heirs had in the land was the remainder interest and not the first freehold estate. Millie Hornback’s heirs were infants at the time of the assessment and sale, and by the express provision of the statute, the purchaser, appellant, having failed to give the notice provided for by sections 4156 and 4158, Ky. Statutes, forfeited his right under the purchase, and was not entitled to receive a deed. A deed from a sheriff to a purchaser, to land sold for taxes, vests the purchaser with the fee simple title to the land, if all necessary steps have been taken in making the sale, and the presumption is indulged, that when a sheriff certifies that in a sale of land for taxes that he has done all the things necessary and required by law, that he has done so, but this presumption may be overturned by proof. Section 4030, Ky. Statutes; Metcalfe v. Con., &c., 113 Ky. 751; Hughes v. Owen, 29 R. 140; Husbands v. Palwick, 29 R. 890; Alexander v. Aud, 121 Ky. 105;
Waiving all other questions in regard to the sale, the land was not assessed against William. Hornback, who owned the first freehold estate in the land, and hence the sale did not pass his title to his life estate therein. For the reasons above stated,' it seems that the sale of the land for taxes, and the deed made to appellant, subsequent thereto, did not pass the title to any of the interests of the owners of the land.
The appellee, being the plaintiff below and holding the affirmative of the issue as to whether or not he was the owner of the land, must recover, if at all, upon the strength of his own title and not on account of any defect in that of his adversary. Both parties claim title under Millie Hornback, and agree that she was, at her death in 1900, the owner of the land, and hence, it is not necessary that appellant should show title further than to her. The proof shows without contradiction, that Millie Hornback died intestate, and left six infant children surviving her, who succeeded to the ownership of the land upon her death, subject to a life estate therein of William Hornback. The answer of appellant alleges that in 1910 the heirs of Millie Hornback conveyed the land to T. J. Daugherty. The conveyance vested him with title to the remainder interest of the children of Millie Hornback, but leaves William Hornback still the owner of his life estate, and without which the appellee would not be entitled to either the possession or the profits of the land. There is no competent evidence in the record which proves that William Hornback has ever sold or conveyed his life estate in the land to any one. There is some parol evidence to the effect, that he sold and conveyed it to T. J. Daugherty. It is well settled
Further, the appellee would not be entitled to the entire use of all the land, unless he is the owner of the life estate of William Hornback. The report of the sale made by the referee in bankruptcy of the interest of T. J. Daugherty in the land shows that only an undivided two-thirds interest in the land was sold and purchased by appellee and only an undivided two-thirds interest in the land was conveyed to appellee, as appears from the deed which the referee in bankruptcy made to appellee. Hence, appellee fails to show title from William Hornback and the heirs of Millie Hornback to any interest in the land, and the only evidence of title exhibited by him is the deed from the referee, which limits his claim to a present undivided two-thirds of the land.
The appellant contends that the judgment against him ought to be reversed, because at the time the appellee acquired his title to the land, that he was then in the adverse possession of it, and hence, the title' of appellee is champertous and void. Such claim does not avail anything as against the validity of the salp made by the referee in bankruptcy and purchase by the appellee at that sale, and the conveyance made to him in consequence thereof, as the statute which relates to champertous sales and conveyance does not apply to judicial sales. Carlisle v. Cassiday, 20 R. 562; Arnold v. Stephens, 13 R. 622; Preston v. Breckinridge, 86 Ky. 619. The statute referred to is section 210, Ky. Statutes, and provides, in part, as follows:
“All sales or conveyances, including those made under execution, of any lands, or the pretended right or title to the same, of which any other person at the time of such sale, contract, or conveyance, has adverse possession, shall be null and void.” * * *
For tbe reasons indicated tbe judgment is reversed, and tbe cause remanded for proceedings consistent with this opinion, and tbe parties may amend their pleadings and further prepare tbe case, so as to present it for a determination upon its merits, if they desire to do so.