151 Ky. 488 | Ky. Ct. App. | 1913
Opinion of the Court by
Affirming.
. About the year 1833, Mrs. Grace Lee who then owned the property in contest here by her will devised it to Lucy Price and Joseph Price, two. of her negro slaves during their lives, providing in the will for their manumission or making them free persons; also providing that at their death the property should go to her heirs at law. Lucy Price died many years ago, and Joseph Price left Lexington, leaving Ms sister, Mary Caldwell, in possession of the property. After he had been gone some years, be wrote her tbe following letter:
“Baltimore, Nov. 26, 1890:
Dear .Sister again I will hastend to answer your kind and welcome letter which I received 'this morning I will be home just as soon as I can and you must take good care of yourself and try to rent the proptey out at the best advance. You say that the proptey is not in a good fix if you can lease it out a term of years do it try to make an agreement further more I also wish him to. draw up an agreement and- get all you can for it to help to take care of you and try to keep the taxes up and I wish your health was good so you can work libe you usier you say so many persons want to buy. you had better try and sell it if you can get a good price for it.
I give it to you to take care of you and I hold no claim on it if you can sell it Write soon.
from your beloved
Brother Joseph Price best wishes to all.”
We deem it necessary to consider only one question on the appeal. Rogers alleged in his .answer that Mary Caldwell held the property either in her own right or as agent for Joseph Price, that he did not know which of these allegations was true but that one or the other was true and he did not know which was true. The assessment of the property under which the tax sale was had, was made in the name of Mary Caldwell. Where an answer contains alternative allegations each alternative must present matter .sufficient in law to constitute a defense to the action. If either of them fails to state facts sufficient to support the defense, the demurrer to it is properly sustained. (Hoffman v. City of Maysville, 123 Ky. 707.) The statute regulating the assessment of property provides:
“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.” (Ky. St. Sec. 4049.)
If Mary Caldwell was holding the property as the agent of Joseph Price she did not own any freehold estate therein, and the property should have been assessed in the name of Joseph Price who was the owner of the first freehold estate therein. A valid assessment is a pre-requisite to a valid sale, and a tax deed passes no title other than that of the person in whose name the property is assessed. (Johnson v. McIntire, 1 Bibb. 295, Eastern Ky. Coal Lands Corporation v. Com., 127 Ky. 720, and cases cited.) In White v. McIntire, 145 Ky., 59, property which belonged to J. B. White, was assessed in the name of his son, Elmer White, who lived upon it. It was sold for the taxes1, and a deed was made to the purchaser by the sheriff. It was held that the property rot having been assessed against the owner the purchaser took no title by his purchase, but that as the taxes were a lien upon the property, he acquired a lien thereon under Section 4036 Ky. St. for the amount he had paid. That action is in these words:
In the previous case of Brady v. Sears, 138 Ky. 230, we held that where land had .been assessed in the name of the life tenant and sold for the taxes, the purchaser did not acquire the title of the remainderman without giving the remainderman an opportunity to redeem it by the payment to the purchaser of his money with interest. It is insisted that as McKenna knew that the sale had been made for the taxes and filed his exceptions on this ground in the circuit court, he had an opportunity to redeem the property, and having failed to redeem, it, should be concluded here. But under the order of the court, he paid the money into court, and the court .ordered the commissioner to pay it to the proper officers of the state. He had a right to presume that the commissioner had done his duty; M-'cAlis-ter had no notice of the sale of the property by the revenue agent, and as soon as he learned of it, he tendered the amount to Rogers, the purchaser. There was no such negligence on his part or unreasonable delay as should affect his legal right. The sale was invalid. There was a lien on the property for the taxes; nothing more. The failure of the commissioner to pay off this lien added nothing to it, and there being only a lien on the property, the circuit court properly cancelled the deed and directed the fund in court to be paid to Rogers. All the subsequent proceedings rest upon the assessment. The property having been assessed in the name of Mary Caldwell, the purchaser-at the sale acquired no other title than she had, holding it as the agent of Joseph Price. The assessment not being properly made, the title of the remainderman -was •not affected by the sale, and while the purchaser acquired under the statute a lien on the property for his money, he got nothing more.
Judgment affirmed.