128 Ky. 344 | Ky. Ct. App. | 1908
Opinion op the Court by
Reversing.
Frederick Lunkenheimer and August Brauns owned a tract of land in Henderson county. It was assessed for taxation in the years 1876, 1877, 1878, 1879, 1880, and, they failing to pay the taxes, the sheriff,on March 28,1881, sold the land for the taxes. Thomas E. Ward became the purchaser; and, the land not having been redeemed, on May 14, 1883, the sheriff executed to Ward a d’eed for it. Ward, by judicial proceedings, thereupon obtained possession of the land; and subsequently conveyed it to Henry Lockett and John P. Handley, who rented' it to F. Wildharber. While Wildharber was in possession as their tenant, appellees, who are the children and heirs at law of Fred-. erick Lunkenheimer and August Brauns, brought this suit’ on August 25, 1904, to recover the land, alleging
It is earnestly insisted that the answer does not show that proper steps were taken- to constitute a valid tax sale, and that, therefore, the answer was in this respect bad under tire ruling laid down in Maguiar vs. Henry, 84 Ky. 1, 7 Ky. Law Rep. 695, 4 Am. St. Rep. 182. That case was decided under the act of 1880 (laws 1879-80, p. 209, ch. 1565, section 19), and was a suit by the purchaser of the land to obtain possession. This is a suit by the heirs at law of the owner of the land against the purchaser at the tax sale to oust him from possession 21 years after he,received his deed and took’ possession: of the property. The plaintiffs .brought in’effect an-action ofi ejectment,-, alleging that they were the owners of the land and entitled to the possession. The denial of these allegations was suf•ficient to .make-an issue upon.-the plaintiff’s title <and
The instructions given by the court to the jury are not made part of the record, but under the evidence contained in the record the court should have instructed the jury peremptorily to find for the defendants ; there being no evidence in the record warranting a verdict for the plaintiffs, the deed being sufficient on its face, and there being no evidence to overthrow the presumption of official regularity..
Judgment reversed, and cause remanded for’a new trial.