93 Ky. 639 | Ky. Ct. App. | 1893
delivered the opinion op ti-ie court.
Robert A. Miracle died intestate and owner of a tract of land containing 500 acres, that descended to his. widow and five children. And this action was brought
It is alleged in the petition that the defendant is claiming the entire tract under a deed executed to him not until 1889, although it is recited tin rein the land was •sold November 12, 1883, and then purchased at the inadequate price of $3.50; that the tract of land was ■listed for taxes in the name of Sarah Miracle, widow of Robert A., but the sheriff did not, before making the levy, tender to her a receipt as the law required, though she was a resident of the county in which the land lies; that the sheriff failed to advertise the time and place of said sale at the court-house door, and failed to return a report in writing to the county clerk showing when, where and for what price said land was sold, giving a •description of the land sold, and that such report was not recorded and indexed by the county clerk. It is -further alleged that John A. Miracle, the pretended pur•chaser, did not file with the county clerk said sheriff’s certificate of his purchase.
The defendants do not in their answer state affirmatively that any one of the specific duties prescribed by statute in such case, and enumerated in the petition,
No evidence was offered by either party to show whether the sheriff did or did not sell the land in the manner required by law, except the deed made by him m 1889, loug after his term of office had ended; and the ■ only recital in that is, that the land was listed for taxes for the year 1883 in the name of Sarah Miracle; that she having no personal property out of which the tax could be made, the land was levied on, and, after advertising as the law directs, was sold, when John A. Miracle became the purchaser at $3.50, tax due and cost of sale. The lower court assuming, we suppose, that the burden of showiug non-performance by the sheriff of the statutory duties required in such case was upon the plaintiff', dismissed the action, denying any relief, although one of the plaintiffs was at date of the sale, and is now, an infant.
It has been distinctly held by this court that the power to sell property for taxes is altogether statutory and must be strictly pursued, and when a party is setting up claim to property in virtue of purchase by him at such • sale, he must aver by pleading,' and show by testimony, that the statutory steps necessary to a valid sale were •taken. (Smith v. Ryan, 88 Ky., 636.) In the case of Durrett v. Stewart, 88 Ky., 665, it was said to be well settled that-a sale of-property for taxes is void .unless each legal step that the law requires in order to
It may, by reason of lapse of time or death,; be impossible for a claimant under purchase at tax-sale to show the receipt was presented by the sheriff' to the person from whom the tax was due, or that the sale was duly advertised. But the sheriff was, in this ease, required by statute to make in writing and file with the county clerk a report of such sale, showing all the steps taken with' reference thereto, and in case of his failure to do so the purchaser was authorized to file with the county clerk the sheriff’s certificate of purchase. If the' sheriff or purchaser had complied with such requirement, it would have been in power of the defendants in this case to show the fact, and in our opinion they ought to have been required to do so. Instead, according t© the judgment appealed from, defendant John A. Miracle is permitted to hold 500 acres of land without any affirmative allegation by him of compliance with the statute, or any evidence thereof except a meager and unsatisfactory recital in a deed made six years after the pretended sale by a person not then in office.
"We do not decide whether the land was legally and properly listed in the name of, and the taxes payable by, Sarah Miracle, because it does not clearly appear whether she was in possession of the land, nor whether there was at the time a personal representative of the decedent, Robert A. Miracle. Nor is it necessary to determine