25 Ky.L.Rptr. 113
Court of Appeals of Kentucky.
TROSPER v. COLLINS.
June 2, 1903.
ACTION: Reversed.


Appeal from Circuit Court, Knox County.

"Not to be officially reported."

Action by Nathan Collins against Alice Trosper. Judgment for plaintiff, and defendant appeals.

SETTLE, J.
This action was instituted by appellee in the Knox circuit court to recover of appellant a tract of land lying in Knox county. The petition, in substance, sets out the following grounds of recovery: That appellee purchased the land in controversy from one W. H. Trosper, who gave him a title bond (which is not filed as an exhibit), wherein he agreed to convey appellee the fee-simple title to the land by sufficient deed, but failed to do so; that appellee took possession of the land under his purchase, and it was listed for taxation as his property in the year 1891, and was sold by the sheriff for the tax thus assessed against it in December, 1891; that the sale was illegal and void for the alleged reason that no tender of a tax receipt was ever made him by the sheriff, and he had and owned at the time of the sale of the land personal property in Knox county of greater value than the amount of the tax, out of which it could have been made; and that the sale of the land was not legally advertised, etc. One T. B. Disney bought the land at the tax sale for the amount of the tax, $13.31, and thereafter assigned to Alex. Trosper the benefit of his purchase, but the land was thereafter, and by his direction, conveyed to the appellant, Alice Trosper, by deed from the sheriff, although before the expiration of two years from the date of the sale, and before the conveyance from the sheriff to appellant, appellee tendered to Alex. Trosper and to Disney, the purchaser at the tax sale, the amount of the tax for which it had been sold, with the interest and damage allowed by law, which was refused, and a similar tender was made to appellant by appellee in redemption of the land after the conveyance to her from the sheriff, but this tender was likewise refused. This action was then brought to compel the acceptance by appellant of the tax for which the land was sold, together with the interest and damages provided by law, and to effect the redemption of the land and its restoration to appellee, in pursuance of which object a tender was made of the necessary amount with the petition. A demurrer was filed by appellant to the petition, and overruled by the court, and she then filed answer, in the first paragraph of which it is denied that appellee acquired any title to the land in controversy by the title bond from her husband, or that he paid her husband any sum for the land, or that he ever had possession of the land. In the second paragraph of the answer it is averred that appellant was a married woman at the time of the execution of the title bond to appellee by her husband, and that she was then, and is now, the owner of the land, which was bought and paid for with money and property derived by her from her father's estate; that her husband, W. H. Trosper, over her protest and objection at the time, took to himself the legal title to the land, but has since conveyed it to her, and that the title bond from him to appellee was given against her will, and without her consent, which fact was known to appellee at the time he received the title bond; and that her purchase of the tax title was made to remove the cloud cast upon her title by the tax sale, but no claim of title is asserted by her answer on account of the tax sale. No reply was filed to the answer, and, the cause having been submitted upon the pleadings, and without proof, the lower court rendered judgment declaring the tax sale and sheriff's deed void, requiring appellant to accept the sum tendered her by appellee, and directing her to convey the land to appellee by proper deed within the succeeding 10 days, and, in the event of her failure to do so, that the conveyance be made by the master commissioner. Appellant refused to execute the deed, whereupon it was made by the commissioner, and appellant prosecutes this appeal to obtain a reversal of the judgment of the lower court.

We are of the opinion that the judgment rendered by the lower court was unauthorized by the pleadings. The answer avers that the land in controversy was paid for with money and property of appellant's, which she received from her father's estate, and that the title to the land was conveyed to her husband over her protest and against her objection, but that he thereafter rectified the wrong done her by conveying her the land. While not so stated, it is perhaps to be inferred that this tardy act of justice was done her by her husband after the execution by him of the title bond to appellee; but if, as averred in the answer, the latter knew that she had paid for the land, and that the title bond given him by her husband was executed without her consent, it cannot be true that he was an innocent purchaser. Upon the contrary, his conduct in receiving the bond under these circumstances would seem to indicate a probable conspiracy between him and the husband of appellant, the purpose of which was to defraud her. It is a significant fact that the petition fails to allege that W. H. Trosper, at the time of the alleged execution of the title bond, held the legal title to the land; and it is not averred either what consideration was paid him by appellee for the land. It is usual in executing title bonds to set out in them the consideration paid or to be paid for the land mentioned therein, but we find that appellee for some unaccountable reason has failed to make the title bond an exhibit in this case. It is denied in the answer that he paid anything for the land. It is also strange that appellee should have delayed the bringing of this action so long. According to the statements of the petition, he received the title bond some time previous to 1890. The tax sale occurred December 28, 1891, yet this action was not brought until April 3, 1902; nor was there any effort made by him in all this time to obtain of his alleged vendor a deed conveying him the legal title to the land according to the terms of the title bond.

In view of the foregoing facts, and of the uncontroverted averments of the answer, we do not hesitate to declare that the judgment of the chancellor should be reversed, and, unless it should be the desire of appellee to controvert the affirmative matter of the answer by reply, judgment should be entered declaring appellant to be the owner of the land, and removing any cloud that may have been cast upon her title by the tax sale; for in the present condition of the pleadings enough is shown to indicate that the manner in which appellant's husband acquired title to the land in controversy created a trust in her behalf, which he recognized by afterwards conveying her the land, the circumstances of which appear to have been known to appellee when he received of the husband the title bond. Upon the return of the cause to the lower court, if a reply is filed by appellee, appellant should be allowed by amendment to make more specific her answer upon any point material to her defense or claim of title.

Wherefore, the judgment of the lower court is reversed, with directions to the lower court to set aside the commissioner's deed to appellee, and for such further proceedings as are not inconsistent with the opinion herein.

Ky.App. 1903.

TROSPER v. COLLINS.

74 S.W. 710, 25 Ky.L.Rptr. 113



     

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