Reversed.
14 Ky.L.Rptr. 639, 93 Ky. 639
Court of Appeals of Kentucky.
JONES et al. v. MIRACLE.
Jan. 28, 1893.
ACTION:


Appeal from court of common pleas, Bell county.
To be officially reported.
Action by Lewis Jones and others against John A. Miracle to determine the validity of a tax title held by defendant.
From a judgment in defendant's favor, plaintiffs appeal.

LEWIS, J.
Robert A. Miracle died intestate, and owner of a tract of land containing 500 acres, that descended to his widow and five children; and this action was brought in 1892 by appellant Lewis Jones, claiming an undivided fifth of the land in virtue of a purchase in 1886 from one of the heirs at law, and by two other heirs, against John A. Miracle and Mary Miracle, his wife, neither of them, however, being an heir of decedent, Robert A., but claiming the whole tract under purchase at sale for taxes in 1883, and also claiming an undivided fifth by purchase in 1886 from one of the heirs. A. Slusher, claiming a moiety by purchase from another one of the heirs, was made defendant, but he does not appear to have filed an answer. It is alleged in the petition that the defendant is claiming the entire tract under a deed executed to him not until 1889, although it is recited therein the land was sold November 12, 1883, and then purchased at the inadequate price of $3.50; that the tract of land was listed for taxes in the name of Sarah Miracle, widow of Robert A., but the sheriff did not, before making the levy, tender to her a receipt as the law required, though she was a resident of the county in which the land lies; that the sheriff failed to advertise the time and place of said sale at the courthouse door, and failed to return a report in writing to the county clerk, showing when, where, and for what price, said land was sold, giving a description of the land sold; and that such report was not recorded and indexed by the county clerk. It is further alleged that John A. Miracle, the pretended purchaser, did not file with the county clerk said sheriff's certificate of his purchase. The defendant does not, in his answer, state affirmatively that any one of the specific duties prescribed by statute in such case, and enumerated in the petition, was performed by either the sheriff or the purchaser, but states, in general terms, that said sale was conducted in proper form, as the deed of conveyance by the sheriff sets forth, and traverses or attempts to traverse, the statements of the petition by simply denying the alleged, failure to perform the statutory requirements. No evidence was offered by either party to show whether the sheriff did or not sell the land in the manner required by law, except the deed made by him in 1889, long after his term of office had ended, and the only recital in that is that the land was listed for taxes for the year 1883 in the name of Sarah Miracle; that, she having no personal property out of which the tax could be made, the land was levied on, and, after advertising as the law directs, was sold, when John A. Miracle became the purchaser, at $3.50, tax due, and cost of sale. The lower court, assuming, we suppose, that the burden of showing nonperformance by the sheriff of the statutory duties required in such case was upon the plaintiff, dismissed the action, denying any relief, although one of the plaintiffs was at date of the sale, and is now, an infant.

It has been distinctly held by this court that the power to sell property for taxes is altogether statutory, and must be strictly pursued, and, when a party is setting up claim to property in virtue of purchase by him at such sale, he must aver by pleading, and show by testimony, that the statutory steps necessary to a valid sale were taken. It is true the party claiming under purchase at tax sale was, in the cases cited, plaintiff, seeking recovery against the original owner, while in the case his attitude is that of defendant. But it seems to us there is no reason for placing the burden upon the taxpayer and original owner in any case, but, on the contrary, a person claiming under a tax deed should be required to show, in order to resist recovery by the taxpayer and owner, that he has a valid title, acquired by strict compliance with statutory requirement; for otherwise, while the purchaser at a tax sale is always in a position to be reimbursed, and placed in statu quo, owners of land, sometimes nonresident, or laboring under disability of coverture, infancy, or lunacy, are liable to have their property sacrificed or lost by irregular or fraudulent conduct of the officer or purchaser. And no better illustration of the injustice and impropriety of accepting and treating a tax deed as conclusive in favor of the purchaser could be offered than is done in this case. Here the owner of a large body of land has died, leaving a widow and children, some of whom are infants; and though it does not appear the widow has been appointed administratrix, or otherwise authorized or required to pay taxes on the estate of her husband, or that even any part of the land had been allotted to her as dower, yet the whole tract was listed for taxation in her name, and without any demand on the personal representative of the decedent, if there was one, or notice to any of the heirs at law, the land was sold for the insignificant sum of $3.50; and the purchaser has been adjudged entitled to the entire tract without showing, or attempting to show, a compliance by either himself or the sheriff with indispensable requirements of the statute. It may, by reason or lapse of time or death, be impossible for a claimant under purchase at tax sale to show the receipt was presented by the sheriff to the person from whom the tax was due, or that the sale was duly advertised. But the sheriff was in this case required by statute to make in writing, and file with the county clerk, a report of such sale, showing all the steps taken with reference thereto; and in case of his failure to do so the purchaser was authorized to file with the county clerk the sheriff's certificate of purchase. If the sheriff or purchaser had complied with such requirement, it would have been in the power of the defendant in this case to show the fact, and in our opinion he ought to have been required to do so. Instead, according to the judgment appealed from, defendant, John A. Miracle, is permitted to hold 500 acres of land without any affirmative allegation by him of compliance with the statute, or any evidence thereof, except a meager and unsatisfactory recital in a deed made six years after the pretended sale by a person not then in office. We do not decide whether the land was legally and properly listed in the name of, and the taxes payable by, Sarah Miracle, because it does not clearly appear whether she was in possession of the land, nor whether there was at the time a personal representative of the decedent, Robert A. Miracle. Nor is it necessary to determine whether Sarah Miracle, the infant plaintiff, was entitled to redeem the entire land, or only her undivided moiety; for we are satisfied, as the record stands, the plaintiffs are entitled, as prayed for, to a division of the land among the five children, or their assigns, of the decedent, Robert A. Miracle, notwithstanding the tax deed of John A. Miracle.

And the judgment is reversed, with directions for such division to be made, upon condition of payment to John A. Miracle of his purchase money, with statutory interest.

Ky.App. 1893.
JONES et al. v. MIRACLE.
21 S.W. 241, 14 Ky.L.Rptr. 639, 93 Ky. 639


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