Court of Appeals of Kentucky.

PAYNE et al.

v.

ARTHUR et al.

March 1, 1895.

Appeal from court of common pleas, Bell county.

"Not to be officially reported."

Action by John P. Payne, by guardian, and others, against A. A. Arthur, trustee, to vacate a sheriff's deed under which defendant claims title, and to restore the possession and title of land to plaintiffs. The American Association, Limited, was made a defendant, as the real party in interest. From a judgment for defendants, plaintiffs appeal. Reversed.

PRYOR, C. J.

This action is to cancel certain deeds made by virtue of a tax sale. L. V. Payne died in Bell county, the owner and in possession of a tract of 50 acres of land. He left his widow surviving him, and six children, some of whom were infants and had not attained their majority when this suit was instituted. In 1876 the widow listed the property in her own name, and also one house, the land and house valued at $90. The tax was 56 cents, and the sheriff's costs 50 cents for the levy and sale. The land was sold by the sheriff for this tax and the cost on the 13th of August, 1877, and purchased by J. C. Colson for 96 cents. The widow and children had moved from Bell county to the county of Fayette before this sale was made. The sheriff, in his certificate or return of sale, states that the land sold by him was the same land owned by L. V. Payne at his death, and listed by his widow in her name, for taxes due the state for the year 1876. Colson assigned the benefit of his purchase to Edward Turner, and the sheriff, on the 14th of May, 1881, conveyed the land to Turner, containing 50 acres, and the same owned by L. V. Payne at the time of his death. On the 7th of September, 1886, Edward Turner and his wife and Levi Turner sold to Alex. Arthur, trustee, two tracts of land, the one tract being the 50 acres conveyed by the sheriff to Edward Turner. They made to Arthur a deed as trustee, in which they described the one tract as 50 acres, the same conveyed by the sheriff of Bell county to Edward Turner, as assignee of Colson, the deed being recorded in book 4, p. 82. The American Association, Limited, was made a defendant to the action, and asserted its right to the land, alleging that Arthur, who obtained the deed from the Turners, held the land as its trustee, and they were the real owners; further, that the land was listed as the land of the widow and the heirs of the husband. In this condition, after evidence of the fact that plaintiffs were the children of L. V. Payne, the chancellor dismissed their petition, and denied them relief. This action is not an ejectment, but an action to vacate the deed under which these appellees claim, and restore to them the possession and title. The defendants claim to hold under the title of the appellants, and their derivation of the title begins with the tax deed to Edward Turner, as assignee of Colson, in May, 1881, all parties having notice from the levy and certificate of sale that this land belonged to the ancestor of the appellants; and it was not incumbent on the appellants to exhibit any other title than such as appears from the sale made by the sheriff, and his deed to the purchaser or his assignee. It clearly appears that this land was listed as the property of the widow, and all they obtained, if anything, was her dower interest. There was nothing else for the sheriff to sell, and, if there had been, this court would be reluctant in holding that, under such a levy and sale as this tract of land for 96 cents, the purchaser was invested with title. The judgment is reversed, with directions to set aside the conveyance made to these vendees in so far as it affects the title to this 50 acres of land, and restore to the plaintiffs the possession upon their paying the 96 cents, with the statutory interest given when land is redeemed, and for proceedings consistent with this opinion.

Ky.App. 1895.

PAYNE et al. v. ARTHUR et al.

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