138 Ky. 230 | Ky. Ct. App. | 1910
Opinion of the Court by
— ^Affirming.
The petition to which a general demurrer was sustained states, in substance, that a tract of land described in the petition was assessed for taxation in the years 1902 and 1903 in the name of YV. C. Haines, who then owned a life estate therein; that, as the taxes were not paid, the sheriff, in conformity with the provisions of the Kentucky Statutes regulating the sale of real estate for taxes, sold the land in May, 1904, for the amount of the taxes and penalties, aggregating $11.49, when the appellant, Bradley, became the purchaser of the whole of the tract containing 36 acres for the amount due. The petition further shows that all the provisions of the statute regulating the sale of real estate for taxes were complied with, and that W. C. Haines was duly notified of the fact that the land had been sold, and that
Section 4049 of the Kentucky Statutes provides, in part, 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 was therefore the duty of the life tenant, "W. C. Haines, to list this land for taxation, and to pay the taxes assessed against it during his term as life tenant. Penn v. Penn, 120 Ky. 557, 87 S. W. 306, 27 Ky. Law Rep.
But, when real estate is sold during the life tenancy for taxes against it due by the life tenant, and the life tenant fails to redeem the land, the purchaser at the tax sale will not be permitted under and by virtue of his tax deed to recover the land from the remainderman or his vendee. He will only be allowed a lien on the land for the amount of the taxes paid, with interest thereon as allowed by the statute, as the tax is due and should be paid by the life tenant, which lien he may enforce in an appropriate action. It would be manifestly unjust to take from the remainderman real estate sold for taxes against the life tenant without first giving the remainderman an opportunity to satisfy the amount due. The remainderman may not have any notice of the sale, or that the tax is unpaid; and, under circumstances like these, we know of no statute or rule of law that would justify us in ruling that the purchaser at the tax sale could take the land without giving the remainderman an opportunity to redeem it by the payment to the purchaser at the tax sale of his debt and interest, although the statutory period allowed to redeem has expired. It is suggested, however, that, as the purchaser has a lien, the prayer for general relief authorized the court to enter a judgment giving him a lien on the land and directing a sale of enough to pay the amount due. But, in this action, the purchaser is not seeking to enforce his lien upon the land for the amount of the taxes paid by him with interest ; nor does he pray for any relief of this character. In the petition and prayer thereof, the only relief asked is that the purchaser be adjudged the owner of the land, under his tax deed.
In Hansford v. Holdam, 14 Bush, 210, Holdam brought suit against Hansford to enforce a mortgage lien upon his land; the prayer of the petition being, “Wherefore plaintiff prays that the mortgage be foreclosed, and for all other proper relief.” Hans-ford in his answer set up claim to a homestead, hut did not dispute the debt. The lower court sustained Hansford’s right to a homestead,'but gave personal judgment against them for the amount of the debt. Upon appeal, this court reversed the decree of the lower court giving personal judgment, saying, “as setting up claim to the homestead was not a defense to the action, it is clear that the court erred in rendering a personal judgment.”
In Board of Sinking Fund Commissioners v. Mason, Ford Co., 41 S. W. 548, 19 Ky. Law Rep. 771,
In Schnorbus v. Winkel, 15 S. W. 861, 12 Ky. Law Rep. 902, suit was brought by Schnorbus to set aside a deed of partition made under an agreement by which Winkel was to pay to Schnorbus $500 to make up the difference in the value of the land. The lower court dismissed the action and refused to render judgment in favor of Schnorbus for the $500
In view of the provisions of the Code and the authorities cited, we are of the opinion that, even if defense is made by general demurrer or traverse, the plaintiff who seeks in-his petition specific relief, although there is a prayer for general relief, will not, if the specific relief is denied, be given judgment for other relief under the prayer for general relief, unless the averments of the petition certainly show that the plaintiff is entitled to other relief than that specifically prayed for. The court will not volunteer relief which a party does not suggest he is entitled to, or look outside of the averments of the pleadings to -find some relief that may be granted under a general prayer therefor, when the special relief expressly sought must be denied. A party who wants relief other than that specifically prayed for should seek it by alternative allegations in the petition and prayer, or the averments should show that he is clearly and certainly entitled to it. Cumberland Tel. Co. v City of Hickman, 129 Ky. 220, 111 S. W. 311, 33 Ky. Law Rep. 730. If this were not true, the defendant would often be misled to his prejudice by the pleading, and would find the court giving a judgment against him for something that an examination of the pleading did not inform him he would be called on or required to do or pay, and the plaintiff would find himself getting something that he did not ask for and perhaps did not want. Take this case as an illustration: Here the remainderman may haye offered before the institution of this suit to redeem the land by paying to the purchaser the amount to which he was entitled, and it would be unjust if this offer was made to permit the purchaser under his
If, however, the answer is more than a traverse, and the pleadings when made up show all the relief to-which the parties would be entitled, although it may not be specifically demanded, a more liberal rule should be applied, and the court may, under the general prayer, grant such relief as the pleadings show the parties entitled to. Under this practice the parties will not be taken by surprise, nor will relief be granted that they might not reasonably anticipate would be.
Wherefore the judgment is affirmed’.