43 Ky. 116 | Ky. Ct. App. | 1843
delivered the opinion of the Court.
This is an action of ejectment, brought by Bishop against Lovan. Bishop claims title under a deed made to him by Samuel Woodson, an agent appointed by the Second Auditor, under the statute of 1840, (3 Stat. Law,
It appears that prior to 1824, the 500 acres of land in contest, lying on Pond river, in Hopkins county, was listed for taxation in the name of Henry C. Gist; that the taxes were not paid, and the land stricken off to the State for their non-payment; that the land in contest was a part of a 2000 acre tract granted to Nathaniel Gist, by the Commonwealth of Virginia, in 1787; that Nathaniel Gist died about forty years ago, leaving eight heirs, among whom was Henry C. Gist, in whose name the land was listed for taxation; that he died in 1833, without issue, and that the defendant was in possession at the service of the declaration in ejectment. It further appeared in proof that the Second Auditor, under the act of 1840, above referred to, had appointed Samuel Woodson agent for Hopkins county; that he inclosed him a list of the forfeited lands in the county, and gave him authority “to proceed and sell the same, according to the several provisions of said act” — “before selling, advertising the same at the Court house door, six or eight weeks, letting a Court intervene, and fixing the sale on some Circuit or County Court day;” that Samuel Woodson, as agent, did sell said land, and the plaintiff being the highest bidder, purchased the same at twenty dollars seventy-three cents, the amount of the taxes and charges due thereon, and Woodson executed to him a deed. There was no evidence adduced that any offer was made to sell to the former owner, his heirs or assigns, nor that any offer was made to any one in possession, to quiet his title by paying the taxes and charges due; nor does it appear that any inquiry was made or other effort to find out the former owner, his heirs or assigns, or to ascertain whether there was any person in possession of the land, nor that any tender or offer was made to either, to pay the taxes
By the act of 1822, (2 Stat. Laws, 1377,) the Legislature repealed all laws which authorized the sale of the lands of resident citizens for the taxes, and substituted in its stead, a forfeiture thereof to the Commonwealth. Their policy, in part no doubt, was to prevent the enormous sacrifices which took place in these sales, and the irreparable injury which was often inflicted upon good citizens and honest occupants, who had. in most instances, innocently acquired the property, and was ignorant that any taxes were due and unpaid upon it. While the title remained in the Commonwealth, the forfeiture might be remitted and the title surrendered upon equitable terms : but if a sale should be made, the title might, as it often had done under former laws, fall into the hands of some heartless speculator, for a few dollars, who would ousttbe occupant or innocent owner from bis home and possession without 'remedy.' This policy of forfeiture, rather than sale, was persevered in, until the act was passed under which the sale in this case was made. Nor do we think there is any thing in that act indicating an intention entirely to abandon the pblicy. While, therefore, they deemed it proper to take some steps to collect the taxes due, it may be clearly deduced from the provisions of the act, that they intended to guard against the evils, sacrifices and hardships that were engendered by the sales made under former laws. Looking to the evils that occurred under the former laws, and the policy of the Legislature to guard against them, it may be well doubted whether a sale to the highest bidder was ever contemplated or intended to be allowed, except in cases where the former owner, his 'heirs or assigns, as well as the occupant of the land, bad been found and distinctly notified of the amount of taxes due, and of his right to purchase or redeem, and had declined to do so. In that case, he would have no right to complain if the land was
We can hardly conceive how the agent or Auditor can know whether the former owner, his heirs or assigns, or the possessor is willing or unwilling to redeem or purchase until he is seen and apprized of the amount of taxes due, and of his right to redeem or purchase; or how they can determine that they have declined to do either without some personal communication with them. And the-law authorizes a sale to a third person only in the event of their, and each of them, declining to redeem or purchase.
The law has provided no way by which their willingness or unwillingness may be ascertained, nor any public notification by which, and their subsequent failure to come forward and redeem or purchase, their unwilling, ness and refusal may be implied; and it is remarkable
But if the agent’s right to sell to a third person is not dependent upon the prior positive refusal of the former owner, his heirs or assigns, and also of the occupant, upon due and proper notice, it was at least certainly the duty of the agent to have made diligent search and inquiry for them, and each of them, before he sold; and upon such diligent search and inquiry, had failed to find either; and only upon such facts being made to appear, could his sale be sustained, if ever it could be sustained upon such proof, which we are not now prepared to con. cede.
The agent is a private individual, and is not a public officer. He executes no bond for the faithful discharge . . . ° oí his duties, or the indemnification of those who may be injured by his failure to do his duty, nor is he required t0 take an oath, nor does he act under the sanction of an official oath ; no presumption will be indulged, therefore, in favor of the regularity of his acts, but the person claim-inS Me under his sale must show' that he has done every thing which the law requires to be done to authorize the sale; and as that was not shown in this case, the instruc
