298 S.W. 714 | Ky. Ct. App. | 1927
Reversing in part and affirming in part.
This is the second appeal of this case; the opinion in the first one being reported in
"Whenever any person shall purchase property sold for delinquent taxes, and the sale shall be set aside because of any irregularity, the purchaser shall have a lien on the property for the amount of taxes and cost paid by him, and for which the property is liable, with legal interest from the time of such payment, which may be recovered from the owner of the property or person owning the same."
In the first opinion, the latter contention was upheld.
Upon the filing of the mandate from this court, and on October 26, 1926, the court rendered judgment setting aside its former opinion, and which was reversed in the 215 Ky. case, supra, and thereupon adjudged that plaintiff Carter, was entitled to a lien to the amount of taxes, penalty, and cost paid by him, with 6 per cent. interest from the time he did so, and his costs up to the time of the rendition of that judgment. On the next day, and at the same term of court, plaintiff tendered an amended petition setting out the facts that he had fully complied with the statutory requirements as to the giving of notices of his purchase of the land within the time he was required to do so, and also of the filing of the proper certificates by the sheriff with the county court clerk of the sale made by him, as is also required by the statutes, and that he was therefore entitled to the 10 per cent. interest and the 15 per cent. penalties provided by section 4151-2 of our present statutes relating to the right of redemption by the owner of land sold for taxes when the sale was in every respect valid so as to vest the purchaser with an equitable title to the land, plus the further right *250 to subsequently perfect it into a legal title by complying with other provisions of the statute and which are not necessary to be set out or specifically referred to in this opinion, since they are contained in and discussed in some of the cases hereinafter referred to. There was no motion made at that time to set aside the judgment rendered on the day before such tender. The court did not pass on the motion to file the amended petition at that term, but it was continued until the subsequent March, 1927 term, at which the court sustained plaintiff's motion to file the amended petition, and it was by order of court controverted of record and the cause submitted, followed by a judgment sustaining plaintiff's contention as to his right to collect from defendants 10 per cent. interest with the 15 per cent. penalties provided in section 4151-2 supra. From that judgment the defendants in the original petition have appealed, and the guardian ad litem for the infants has appealed from the allowance made to him for his services in their behalf.
It is contended on behalf of the owners of the land that the first judgment rendered by the court on October 25, 1926, allowed plaintiff all that he was entitled to, and followed strictly the provisions of section 4036 hereinbefore inserted; while it is the contention of plaintiff that he was entitled to the 10 per cent. interest and 15 per cent. penalties provided by section 4151-2, which, and succeeding sections, relate to and regulate the right of redemption. It is further contended by the landowners that the court lost jurisdiction of the case when it rendered the October, 1926, judgment, and could not set it aside at a subsequent term in the absence of a motion for that purpose being made at the rendition term, and that the tendering of the amended petition, even if the case was one wherein amendments could be filed after a return from this court, did not have the effect of suspending the judgment so as to authorize the court to set it aside at a subsequent term. In answer to the latter contention, plaintiff insists that the tendering of his amended petition was tantamount to a motion to set aside the October, 1926, judgment, and that it had the same effect as a motion made expressly for that purpose. Our view of the case as subsequently expressed renders it unnecessary for us to determine the questions of practice thus raised on this appeal, since we are thoroughly convinced that the first *251 judgment (October 25, 1926) gave to plaintiff all that he was entitled to under the facts disclosed by the record.
Plaintiff relies upon the former opinion in this court, and those in the cases of DeSembly v. Dedman,
The principles as so stated were expressly recognized and applied in the case of White v. McIntosh,
But it is insisted that the, former opinion (
There are only two infants involved; the other defendants being adults. The records were exceedingly small, and the case involved only legal questions. The *253 court allowed the guardian ad litem $50 for his services to the infants when he was demanding a much larger amount. So far as the record discloses, no evidence was heard on that motion, and we are to determine its correctness from the record alone. Viewed from that standpoint, we are not prepared to say that the allowance was insufficient, and the judgment will be approved on that branch of the appeal.
Wherefore the judgment in favor of appellee, Carter, is reversed, with directions to set it aside and to reinstate the one in his favor rendered October 25, 1926; but it is affirmed as to the allowance made to the guardian ad litem.