128 Ky. 652 | Ky. Ct. App. | 1906
Opinion of the Court by
Affirming.
There was listed for taxation, county- and State purposes, a tract of 3 acres and 4 poles of land situated near Paducah, by G-. A. Terry, for the year 1875. Terry having failed to pay the taxes due upon that assessment, the sheriff of McCracken county advertised the land for sale. No one offering to bid the amount of the tax due, and the costs of the levy and sale, amounting to-$1.45, the land was struck off to
The circuit court found, and the proof shows, that on June 10, 1882, Mrs. Polivick paid to Howell, auditor’s agent, the tax due for the year 1875, and exhibits his receipt 'therefor. She also then delivered to the auditor’s agent sheriff’s receipts for each of the other years’ taxes prior to 1882. Notwithstanding, the auditor’s agent sold the land on June 12, 3882, to Caldwell as stated. Appellees contend that it was incumbent on appellant, when justifying his possession and claim under a tax title, to prove affirmatively that.each step in the matter of assessing the land, of advertising it for sale when the taxpayer became delinquent, and every other step required by statute to be taken by the revenue officers of the State up to the execution of the Auditor’s deed, was taken in the exact manner required by the statutes, and that, as appellant did not do so, the deed from the Auditor of State to Caldwell was not receivable as evidence on appellant’s behalf. In this contention we do not concur. Many of the acts required by the statutes to be done before the collector could sell the land are such as from their nature there could not be a record of them. For example, the collector was required to first levy upon and sell the personalty of the taxpayer in the county, and was required to tender the taxpayer a receipt before selling. The collector was also- required to advertise the property levied on for a designated period by written or printed notices. As there was not provision for a record of such steps, even if it had been possible to make such a public record,
The rule contended for by appellee would make it well-nigh impossible, and after many years it would be impossible to prove at all the antecedent facts requisite to the vesting of the title under a tax sale. The more ancient the transaction, the more infirm it would become, until in the course of time it would break in two by its inherent feebleness, and the whole transaction would become invalid from inability to prove it. Just the contrary is the general course of law. Time ripens most things, and makes perfect many acts hitherto doubtful. The courts require less evidence to establish an ancient fact than a recent one, because they appreciate the difficulty, and oftentimes the impossibility, of calling witnesses to prove the older facts. A notable instance is that an ancient writing proves its own execution, whilst it would be necessary to prove the execution of the same document, if recently made, by calling witnesses to the fact. Reason and public policy are that such transactions as official sales of land, by which its title is changed, should be susceptible of proof at all times, so that the link thereby made in the chain of title
The statute in existence when these transactions occurred, and which is yet in force (section 3760, Ky. St. 1903), was section 17, e. 81, Gen. St., which reads: “Unless in a direct proceeding against himself, or his sureties, no fact officially stated by an officer in respect of a matter about which by law he is required to make a statement, in writing, either in the form of a certificate, return, or otherwise, shall be called in question, except upon the allegation of fraud in the party benefited thereby, or mistake on the part of the officer.” This section but declares the common-law rule, which holds that every officer acting under the sanction of an oath, or in whom the government reposes a trust, shall be presumed to have done his duty until the contrary is proven. Hickman v. Boffman, Hardin, 356; Scott v. Marshall, 5 J. J. Marsh, 435; Hickman v. Skinner, 3 T. B. Mon. 211; Case v. Colston, 1 Metc. 145. In Rudd v. Johnson, 5 Lit. 19, it was held that where an officer has authority to act he will be presumed to have acted correctly; but, where the existence of some fact is necessary to give' him- authority to act, such fact -will not be presumed from his having acted. Even if that be held to be a literal 'statement of the rule, it would not'alter the presumption accorded to
As to the sale by the sheriff for the taxes of 1875, there is no proof to contradict his certificate, or to rebut the presumption accorded to it by law. But that is not true as to the certificate given by auditor’s agent Howell to Caldwell in 1882. It was proved by appellees that Howell was paid the tax assessed for the year 1875, for which the land was struck off to the State at the sheriff’s • sale, and that the tax for the following years, prior to 1882, were also paid by or for appellees. If the land was sold for all, or for any of those years for which the tax had previously been paid, there was no authority in the auditor’s agent to sell it. This is because he could sell only so much of the land as was necessary to repay to the State the delinquent tax. If he sold for more than was due, as he would if he sold for years in which the
Appellant contends, however, that though that be conceded, still the taxes for the year 1884 were legally assessed against the land; that they were unpaid, and the land sold by the sheriff in 1885 to the State to pay same'; that as the State did not have the title to convey in 1882, when it executed to Caldwell the deed by its- auditor, its subsequently acquired title passed under the doctrine of' estoppel to Caldwell; that, at any rate, it divested appellees of title, and is an insuperable obstacle to their suit in ejectment — they being without title. Whether the State is' bound by the doctrine of estoppel is not free from doubt. But we waive that question. It must first be determined just what was the legal effect of the sheriff’s sale of this land for taxes for the year 1884. If it was not such as to divest Terry’s heirs of the title, then the question of whether the State is bound by the doctrine that after-acquired title will pass by its previous deed conveying no title will not arise in this case.
Appellees contend that the assessment'of this property was invalid, and was void, because it was assessed in the name of G. A. Terry, who was then dead. In Oldhams v. Jones, 5 B. Mon. 458, it was held that land formerly owned by Robert Mosely, and listed by him for taxation' as a nonresident in or prior tó 1803, was legally assessed in his name for taxes for-the
Appellees question the applicability of the foregoing authority to this case, because they say it was rested upon a peculiar statute then in force, and not in force when the assessment in the case at bar was made, by which nonresidents ’ lands were required to be assessed in a peculiar manner. In the' case at bar Gr. A. Terry is shown to have been a nonresident of McCracken county when the assessments of - this land during his lifetime were made. Section 2 of art. 16, c. 92, Glen. St., then in force in 1884-5, required that owners of land, who were nonresidents of the county where the land was situated, should make out and file with the county court clerk of such county a list of their lands therein, which list was. to be resorted to by the assessor in assessing such lands for taxation. This provision is essentially the same as that in force in 1803, under which Oldhams v. Jones, supra, arose; the only difference being in the officers with whom the list was to be filed and the assessment made, and the manner of' collecting the tax. The case sems to us -to be pertinent-as authority.
By the act of May 6,. 1880 (1 Pub. Acts 1879-90, p„ 206, c. 1565), known as the “Auditor’s Agent Act,”' it is provided in section 14 (page 208): “The sale of lands shall not be invalid on account of. such lands hav
The assessment made of this land in 1884 was as follows, on the assessor’s books prepared by the State:
It is contended that this assessment is invalid because it is not a sufficient description of the property to identify it. Prom the nature of the case, description of lands on the assessors’ books in this State, where the sectional system of surveys and descriptions are not and have never been in use, except in a small portion of the State, cannot be as full as is generally given in deeds. Nor is it necessary that it should be. It is certainly competent for the Legislature to prescribe the form of assessors’ books. If it does, it is not for the court to say that assessments made in such form are not adequate. The statute then in force on this subject was section 1, art. 4, c. 92, tit. “Revenue and Taxation,” Gen. St., as follows:
Section 1. The tax-book shall be in the following form:
1. Full names of tax-payers of..........county.
2. Land each tract in acres.
3. Nearest resident.
4. Number of election precinct in which situated.
5. Value of lands..
et cetera.
The assessment in this case was in strict conformity to the statute, and was a sufficient description of the land. The question then arises whether the sheriff’s sale, and the certificate he is required to give of the land, when sold for delinquent taxes, should give a more extended description of the property levied on and sold. It is to be remembered that in this case the land was not sold to a stranger by the sheriff, but was struck off to the State because there was no other bidder. The statute regulating the sheriff’s duties in. that respect is not very explicit. It was section 14,. art'. 8, c. 92, Gen. St., and reads, on this point: “ And, if one will bid for and purchase such land at the price of the taxes due and the costs of the sale, it shall be the duty of the sheriff or collector to purchase
The question now is, what effect upon the title of the delinquent taxpayer has such a sale ? Section 14, art. 8, c. 92, above quoted in part, does not operate to transfer, the title, or to divest the taxpayer of his title. It provides for a redemption of the land within certain periods, which in this case expired before the suit was brought, and without a redemption- having been effected or attempted. It might not unreasonably be supposed that the State got what any other purchaser would have got under the sheriff’s sale. But the Legislature has not thought so. This is indicated by the auditor’s agent act, enacted first in 1880. By the fourth section of that act the auditor’s agent is directed to sell the lands bought in by the State for delinquent taxes and unredeemed, and to sell so much of the land “assessed, or belonging to each person assessed or indebted,” as will discharge the tax, interest, and charges thereon. In the amendment of April 22, 1892 (1 Pub. Acts 1881-82, p. 107, c. 1304; page 1111, 1887, Glen. St. 1887), the.agent is directed to locate all lands' in his county previously bought in by the State and remaining unsold. By section 5 it is provided: “Háving so ascertained the location of said property and its present' owner, said agent shall give public notice for" 30 days that unless said taxes
It is not unreasonable to assume that the attitude of the Legislature on this subject was thoughtfully taken. In Robinson v. Huff, 3 Litt. 37, the question arose as to whether the title of the delinquent taxpayer was vested in the State by a proceeding almost identical with the one at bar. There, too, the question arose in the trial of ejectment, where the. defendant showed the sale of plaintiff’s title for taxes, and the purchase by the State, to defeat the plaintiff’s action; the.effort being to show that the plaintiff was not. entitled to recover on the strength of his own title. The court said: “We are of opinion that the sale for taxes to the State did not pass the legal title. It is a well-known rule of the common law that no freehold might be given to the ldng, nor derived from him, but by matter of record. 2 Bl. Com. 344. In conformity to this principle the Supreme Court, of the United States, in the case of Fairfax’s Devisees v. Hunter’s Lessee, 7 Cranch, 603, 3 L. Ed. 453, decided that statutes of Virginia, which showed a strong intention in the Legislature to take and pass the title, of .real estate
• On the trial plaintiffs did not show title derived from the Commonwealth. Appellant contends that he was, on that account, entitled to a nonsuit: But it was denied him. The circuit court applied to this trial the principle that, where plaintiff and defendant each derive, of claim1, their title from a common source, it is unnecessary for either to trace title further than the common grantor, as each is estopped to deny the validity of his title. Appellant contends however, that that rule is inapplicable to the case at bar, because when the title became vested in the Commonwealth by the sheriff’s sale of 1878 for the taxes of 1875, all antecedent title was merged in the sovereign; that the Auditor’s deed made on behalf of the State was effectual to convey, not only such title as the taxpayer may have had, but any title the State may. have had from any other source; that as all title to land within the Commonwealth was originally in the State, unless a prior grant from the State was shown by the plaintiffs, defendant’s deed from the State, executed by the Auditor, was a grant by the State, showing superior title in the defendant. We think appellant misconceives the office and nature of
It follows that the judgment should be affirmed, which is ordered.