138 Ky. 464 | Ky. Ct. App. | 1910
Opinion op the Court by
Affirming.
Appellants, claiming to be the owners of an undivided interest in a lot in Paintsville, Ky., brought suit in the Johnson circuit court for its sale and distribution of the proceeds among the respective owners. In the petition the appellee Howes is alleged to be the owner of the remaining eighth interest. He was made a party defendant. In his answer Howes claimed title to all of the lot under and by virtue of a tax sale made in 189.5. He denied that the plaintiff owned any interest whatever in the property. He further pleaded that since his purchase of said property he and his vendor had made valuable and lasting improvements thereon, and he asked, in the event his title be held defective in any particular, that he be adjudged a lien on the lot for the value of the improvements put thereon and the amount of taxes paid by him. In subsequent pleadings issue was joined on the question of the validity of the tax sale and the value of the improve
This property was owned by Thomas A. Hatcher, who died a resident' of Floyd county in .1850. He left surviving him eight children, part of whom were living at the time this land was sold for taxes, and those who had died left children surviving them. Little or no attention was paid to this property for many years following the death of James A. Hatcher, though it is shown that his son, James H., for a time at least, paid the taxes on it. In 1895 it was advertised and sold for the taxes due thereon for the years 1891, 1892, 1893, and 1894, and Mary L. Hatcher, wife of James PI. Hatcher, became the purchaser thereof for the sum of $12.38. Under this purchase, she held the property until in 1900, when she received a deed from- the then sheriff of Johnson county for it. Shortly thereafter she sold and conveyed it to II. S. Howes for $175, and he took possession of and has since held it. In 1907 this suit was brought by the plaintiffs, same being all of the heirs at law of James A. Hatcher, except his
While there is some question made as to the amount of taxes paid and the value of the improvements put upon the -property, the main question raised upon this appeal is the validity of this tax title. It is assailed upon many grounds. First, it is charged that it was not properly assessed, it being listed under the title of “Hatcher heirs;” second, that the proper steps were not taken by the sheriff prior to the date of sale to invest the purchaser with a good title; and, third, that no notice was given by the purchaser, Mary L. Hatcher, to three of the plaintiffs who were at that time married women, as required by section 4156, Ky. St. The objection that the property was not properly listed comes with poor grace from the owners. The law imposes upon all property owners the duty to list their property, either with the assessor or with the clerk, and when the property, as in this case, is an estate, it would be exacting almost the impossible to expect that it should he listed in the names of the owners. When the assessor lists it so as to-, enable the sheriff to identify it, the purpose of the law is satisfied. It
As to the second ground of complaint, it is shown that the sheriff, before advertising said property for sale, notified James IT. Hatcher in writing of the amount of taxes due, and that sale of the property would be made to satisfy same unless paid. None of the other heirs appear to have been known to the sheriff. James .H. Hatcher had been paying the taxes theretofore, and, when he refused to pay, the sheriff proceeded to advertise a sale. It appears that the sale was regular, and, if the pxirchaser thereunder complied with the statutory requirements,
But it is insisted that, as the sale is void as to the married women, it is void alike to all, and that no interest whatever passed to the purchaser by virtue thereof. This, however, is not necessarily so, and a fair interpretation of the language of the statute does not require such, construction. The interests of the respective owners are severable and known, and, where the statute imposes upon the purchaser the performance of certain duties in order to perfect his title to certain interests in the land, a failure to discharge these duties, while necessarily operating to deprive him of title to such interests, should not be construed to defeat his title to those interests owned by persons to whom he owes no such duty in order to perfect his title thereto. The statute under consideration deals alone with the way in which the title of a married woman to real estate sold for taxes may be taken from her and vested in the purchaser. It has no bearing or effect where the owner is under no disability. When a contract is severable and a part capable of being carried out or performed, and part not, the valid portion thereof will be enforced, unless against public policy or in violation of some statute. In the case before us the appellee’s vendor purchased the entire lot, and, because she failed to give the notice required by section 4156, the sale is void as to certain 'interests therein, which interests amount to 13-48 of the
This brings up the question: Should the interests in the lot which did not pass under the tax sale be charged with their proportionate share of the costs of the improvements, etc.? This expense, for convenience, may be divided into two classes: First, those items which the tenant in charge voluntarily made; and, second, those which were imposed upon the property by operation of law, such as taxes, assessments for construction of pavements, sidewalks, etc. As to the first class, we are of opinion that the appellants are propérly chargeable therewith only so far as they were necessary to preserve and protect the property. If, in order to rent out the property, it became necessary to make certain improvements, such as fencing, the necessary outbuildings, etc., which improvements inured to the benefit of all of the owners of the lot and enhanced its value, then they should all share in the expense thereof. The evidence upon this point, while meager, is sufficient to authorize and support the finding of the chancellor to the effect that the appellants should bear their just proportion thereof. As to the latter class, the land itself was answerable therefor, and all of the owners are properly chargeable therewith. The chancellor fixed the reasonable rental value of the lot, while it was in the possession of appellee at $175, and he directed this stun deducted from the claims
Upon the whole case, we are satisfied that the conclusion which he reached as to the moneys expended by appellee in improvements upon the property does justice as between the parties. There is a charge in the pleadings that the sale of this property to Mary L. Hatcher was the result of a fraudulent agreement and understanding between the then sheriff, Howes, and James IT. Hatcher and his wife; but this allegation is wholly unsupported by the proof.
Being of opinion that the chancellor reached the right of this case, his judgment is affirmed.