Court of Appeals of Kentucky.
TURNER et al. v. CITY OF MIDDLESBORO et al.
March 12, 1909.
ACTION: Reversed.


Appeal from Circuit Court, Bell County. "Not to be officially reported."
Action by the City of Middlesboro and others against J. P. K. Turner and another.
There was a judgment for plaintiffs, and defendant Turner appeals.

CARROLL, J.
In 1892 the city of Middlesboro, a city of the fourth class, caused a tax bill for $256.50 to be issued against Turner, the appellant, and Calvin Hurst, his guardian, for taxes for that year on 57 acres of land valued at $17,100, owned by the infant Turner, which was assessed as of November 1, 1891. Again in the year of 1894 the city issued a tax bill for $138.60 as the amount due on an assessment made as of April 1, 1894, on two tracts of land, one containing 60.29 acres valued at $6,000 and the other of 81.58 acres valued at $4,079. On June 6, 1895, the city filed its petition in equity in the Bell circuit court against Hurst, the guardian, and Turner, who was then an infant about 10 years of age, and the Middlesboro Town & Lands Company, seeking a personal judgment against the infant and the guardian, and also to enforce its lien for the aforesaid taxes upon 57 acres of land assessed as the property of Turner, and the 60.29 acres and 81.58 acres, being the three tracts of land described in the tax bills filed with the petition, with interest and penalties. On July 3, 1895, the guardian filed an answer, controverting the allegations of the petition, and putting in issue all of the averments of the petition relating to the assessment and taxation of the land. In June, 1899, the plaintiff filed an amended petition, in which, after reaffirming the averments of the original petition, there were described three separate tracts of land alleged to be in the city of Middlesboro, the first tract containing 11.26 acres, more or less, the second 17.35 acres, more or less, and the third 44.52 acres, more or less, aggregating 73.13 acres, and it was charged that the tax bills sued on were for taxes due on these three tracts of land. In the tax bills upon which the action was based the land is described in one tax bill as 57 acres. In the other tax bill it is described as 60.29 acres northwest and 81.51 acres southwest. It will thus be seen that the description in the amended petition does not correspond with the description in the petition or the tax bills; nor can we say from an inspection of the record that the land described with particularity in the amended petition is the same land or any part of it mentioned in the tax bills. No process was issued on this amended petition, and no appearance was entered thereto. No proof was taken by either party, and on June 27, 1899, a judgment was entered against Turner and his guardian for $742.36, with interest from the 27th of June, 1899, until paid, and costs; and it was further adjudged that the city had a lien upon the three tracts of land described in the amended petition, which was ordered to be sold. On July 1, 1899, Turner, by his guardian, moved the court to set aside the judgment because the same was prematurely rendered, was a clerical misprision, and was procured by fraud. On the 3d day of July, 1899, the judgment was set aside, and each party allowed to file additional pleadings. No other order or proceeding was taken in the case until February 1, 1901, when the judgment appealed from was rendered. This judgment ordered a sale of the three described tracts of land in the amended petition for the purpose of satisfying the taxes stated in the judgment to be $256.50 with interest at the rate of 12 per cent. per annum from the 1st day of May, 1892, and $138.60, with interest at 6 per cent. from the 1st day of November, 1894. In April, 1901, the judgment was assigned on the margin of the record by the city of Middlesboro through its mayor to the appellee M. J. Moss, and on the 27th day of May following the three tracts of land were sold by the commissioner under the judgment, and Moss became the purchaser at the price of $771.49. Afterwards the report of sale was confirmed, deed made to the purchaser, and a writ of possession awarded. The appellant Turner seeks by this appeal to vacate and set aside the order of sale, the report of confirmation thereof, and to have restored to him the property sold. This appeal was filed in this court on July 18, 1908, some seven years after the judgment appealed from was entered.

The first question to be considered is: Was the appeal prosecuted within due time? Section 391, Civ. Code Prac., provides: "An infant--other than a married woman--may, within twelve months after attaining the age of twenty-one years, show cause against a judgment, unless it be for a tort done by, or for necessaries furnished to, the infant; or unless it be rendered upon a set-off or counterclaim stated in an answer; but the vacation of such judgment shall not affect the title of a bona fide purchaser under it." We find in the record an affidavit made by Turner in which it is stated that he was born on the 22d day of July, 1886, and was 21 years of age on the 22d day of July, 1907. Accepting this statement as true, the appeal was prosecuted within 12 months after he became of age, and is therefore in time. As no process was issued on the amended petition, we think it should be ignored in the consideration of this case; and we will therefore look to the petition and the judgment for the purpose of determining whether or not the judgment is erroneous.

The petition states "that defendants are indebted to plaintiff in the sum of $256.50, with interest thereon at the rate of 12 per cent. per annum from May 1, 1892, until paid, for taxes due for the year 1892 on 57 acres of land in the southwest section of Middlesboro, Ky., as shown by plat on file in the Bell county clerk's office at Pineville, Ky., and as evidenced by tax bill No. 1693, a certified copy of which will be filed as part hereof if required; that said defendants are indebted to plaintiff in the further sum of $138.60, with interest thereon at the rate of 6 per cent. per annum from November 1, 1894, until paid, for taxes due on said land in said section of said city as shown by plat on file as aforesaid, and as evidenced by tax bill No. 608, a certified copy of which will be filed herewith as part hereof if required." The prayer of the petition is: "That said land or enough thereof be sold, and a sufficiency of the proceeds of said sale to satisfy said judgment be applied to that purpose, and for all proper relief." In the tax bills heretofore set out there is no description whatever of the land; it being merely mentioned in one tax bill as 57 acres, and in the other as "60.29 acres N. W. and 81.51 acres S. W." The judgment under which the land was sold describes the land as being in three tracts, giving the metes and bounds and courses and distances of each tract; the first tract containing 11.26 acres, more or less, the second containing 17.35 acres more or less, and the third containing 44.52 acres, more or less.

There is no similarity whatever between the description of the land in the petition and the description in the judgment. No person can tell by an inspection of these two papers whether or not the land or any part of it upon which the city asserted its lien was sold. It is therefore manifest that the judgment is erroneous, and should be vacated and set aside. But the point is made that, although the judgment should be reversed, the purchaser ought not to be disturbed. The general rule is that, when a judgment is reversed, the reversal does not affect the title or possession of the purchaser at a sale made under the judgment before the reversal, although he may be the plaintiff or a party to the action. But this rule has no application to the sale of infants' land not bought by a bona fide purchaser. In District of Clifton v. Pfirman, 110 S. W. 407, 33 Ky. Law Rep. 529, this court, in speaking of the general rule and citing cases that support it, said: "It is not, however, necessary here to do more than mention these cases as illustrating that the purchaser at a judicial sale who is the plaintiff or a party to the action in which the judgment is rendered will not in every instance be permitted to hold the property purchased without in some way accounting to the judgment creditor when the judgment is reversed. And we have no hesitation in declaring that, if a judgment against infants is reversed, the purchaser, if he be the plaintiff or a party to the action, will not be permitted to hold against their interests real property bought under it at a judicial sale. In such case the infants may either elect to allow the sale to stand, or they may have the sale set aside and take the property upon the payment of the debt, which is a lien upon it." In this case the judgment was assigned on April 24, 1901, to M. J. Moss, who purchased the land at the sale made on May 27, 1901. As the assignee of the judgment before the sale, Moss took the position of the plaintiff in the action, and as the sale was made for his benefit and he became the purchaser the principle announced in the Pfirman Case must be held to embrace him. He was not a bona fide purchaser in the meaning of the Code. But Moss should be adjudged a lien upon the land for the amount of money that he paid to the city in satisfaction of the judgment, with interest thereon from the date of payment; and, if this sum is not paid, the land described in the petition may be sold to satisfy it. Upon a return of the case the city, Moss and Turner may each file such pleadings as may be necessary to present any controversy that may arise between them.

Wherefore the judgment is reversed, with directions to set aside the judgment and the sale of the land, and for such further proceedings in conformity with this opinion as may be necessary to give to the parties the relief they are entitled to.

Ky.App. 1909.
TURNER et al. v. CITY OF MIDDLESBORO et al.
117 S.W. 422


     

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