October 10, 2012

Hamilton, et al. v. Steele, Laurel, 1909

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HAMILTON et al. v. STEELE. 
BROWN v. SAME. 
CROUCH et al. v. SAME.

COURT OF APPEALS OF KENTUCKY

117 S.W. 378; 1909 Ky. LEXIS 500

March 17, 1909, Decided

PRIOR HISTORY:  [**1] 
Appeal from Circuit Court, Laurel County.
Action by C. G. Steele against W. J. Hamilton and others; Henry P. Brown and Katie D. Crouch and others intervening. From the judgment, defendant Hamilton and others, intervener Brown, and interveners Crouch and others severally appeal.

COUNSEL: T. Z. Morrow and Brown & Brock, for appellants Hamilton, Crouch, and others.

W. L. Brown, L. A. Nuckols, and Eli H. Brown, Jr., for appellant Henry P. Brown.

James M. Hays, J. Smith Hays, and Sami. C. Harding, for appellee G. G. Steele.

JUDGES: NUNN, J.

OPINION BY: NUNN

OPINION

 [*378]  NUNN, J. On the 6th day of March, 1907, appellee instituted this action in trespass against appellants, W. J. Hamilton, Richard Nelson, and Daniel Barnett, for the purpose of preventing further trespass by them upon his land. He alleged that he was the owner of three surveys situated on the Cumberland  [*379]  river at and near the mouth of Laurel river, and in the counties of Laurel and Whitley; most of it being in Laurel county. He described the land by metes and bounds; one tract containing 190 acres, one 100 acres, and the other 750 acres. It appears, not clearly, however, that these surveys  [**2] were patented, the first in the name of Benjamine F. Herndon, the second, or the 100-acre tract, in the name of Richardson Herndon, and the third, the 750-acre tract, in the name of Benjamine F. Herndon, Samuel Hogan, and Richardson Herndon. One Tompkins, 10 or 12 years before this action was instituted, procured a patent for 100 acres of land lying wholly within the boundary of the 750-acre patent, and sold his claim to Richard Nelson one of the appellants, who erected a cabin on it, cleared and fenced about 4 acres around the house. These 4 acres were specifically excluded in the conveyance to appellee of the three surveys. Appellants did not confine themselves within the 4 acres, but cut timber beyond its boundary. Hence this suit. Appellants denied appellee's title, and asserted title in themselves. The proof was heard, and the court found for appellee.

In our opinion the court did not err in this. The testimony shows that appellants' patent is of later date than the 750-acre patent above referred to. Consequently their patent is void under the statutes, and they have been in the actual possession of their claimed boundary for only something near eight years, which is not sufficient  [**3] to give them any right of title by possession or any title whatever. Appellee's testimony shows title in himself. The same questions were considered in the case of Williams et al. v. Hays, 93 S. W. 1063, 29 Ky. L. Rptr. 583, 29 Ky. Law Rep. 583. Appellee is the vendee of Hays, and appellants, Williams et al., in that case were sued for trespass upon the identical lands in controversy herein, and this court, on practically the same testimony, adjudged the title to the land in Hays, appellee's vendor. We are therefore of the opinion that the judgment of the lower court is correct as to these appellants.

We will next consider the appeal of Henry P. Brown against the same appellee. After the first-styled action had been on the docket for some time, Brown filed an intervening petition and asked to be made a party defendant to appellee's action. He denied appellee's ownership and alleged title in himself to the three surveys of land above described. He claimed to own it by virtue of a purchase at a tax sale made by the sheriff of Laurel county in the year 1894, for the taxes assessed against it for the years 1891, 1892, and 1893. The amount of the taxes was $59, with the cost added, making a total of $67, which  [**4] sum he paid for the land. He alleged that he had paid the taxes for each year since to the filing of his petition, and had also expended $188 in having the lands surveyed and the outside boundary well marked for the purpose of giving notice to others of his claim and to protect the property from trespassers. Brown did not content himself with his prima facie title by virtue of his deed from the sheriff, but undertook to allege and prove that all necessary steps were taken to pass a good title under the statutes. Appellee controverted appellant's pleading, but produced no testimony. He relied upon the defects and irregularities shown by appellant's testimony. The lower court adjudged that Brown did not obtain a good title to the land in controversy by his deed, but gave him judgment for the money he paid at the sale and for all money he had paid as taxes on the land since his alleged purchase, but dismissed his claim for the $188.

We do not feel warranted in disturbing the action of the lower court with reference to his claim of title to the land. See the cases of Durrett v. Stewart, 88 Ky. 665, 11 S. W. 773, 11 Ky. L. Rptr. 172, and Jones v. Miracle, 93 Ky. 639, 21 S. W. 241, 14 Ky. L. Rptr. 639. In the last-named case the  [**5] court said: "In the case of Durrett v. Stewart, 88 Ky. 665, 11 S. W. 773, 11 Ky. L. Rptr. 172, it was said to be well settled that a sale of property for taxes is void unless each legal step that the law requires in order to subject it to sale has been complied with. Moreover, it was held in Maguiar v. Henry, 84 Ky. 1, 7 Ky. L. Rptr. 695, 4 Am. St. Rep. 182, that it was not in the power of the legislative department to make a tax deed conclusive evidence of a complete title. * * * 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 a 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." These cases were decided before the change in the statute requiring the owner of the land  [**6] to allege and prove that the assessment of the taxes, the levy and the sale of the land were defective and irregular. In other words, the statute, enacted since the opinions above referred to were rendered, shifted the burden from the purchaser to the owner of the land; but it did not change the rule as to the requirement that, before a person can obtain a complete title under a tax sale, each legal step that the law requires in order to subject it to sale must be complied with. See the case of Husbands v. Polivick, 128 Ky. 652, 96 S. W. 825, 29 Ky. L. Rptr. 890, 29 Ky. Law Rep. 890. We have examined the record with reference  [*380]  to this tax title, and quote with approval the words of the lower court, viz.: "A very careful review of the evidence of title, the assessment, the tax sale, the certificate of purchase, and the sheriff's deed under which the intervening plaintiff, H. P. Brown, claims the land herein, has convinced me that the assessment, sale, purchase, certificate thereof, and the deed for the land was so irregular and imperfect as that it does not confer upon him any title to any part of the land claimed by plaintiff, Steele, herein."

We are of the opinion, however, that the court erred to the prejudice of  [**7] appellant Brown in refusing to allow him the $188 claimed by him. When a tax sale is held invalid, the purchaser is entitled to a lien for and to recover the amount paid on such purchase and for all taxes thereafter paid in good faith, with proper interest thereon; also for improvements on and expenditures made to care for and protect the property. It appears from the proof that the expenditures for surveying and looking after these lands were made in good faith and such as reasonably appeared to be necessary to protect the property. These lands were situated miles out in a sparsely settled country, and persons were cutting and hauling off the timber, and nothing could have been more beneficial to care for such property than to have it surveyed so that it might be determined where the timbers were being cut and who was wrongfully coming upon the land. For this reason the judgment as to appellant Brown is reversed and remanded, with directions that his claim, with interest, be allowed as a lien on the land.
Lastly, we will consider the appeal in last-styled case, Crouch et al. v. Steele. After the action of appellee against Hamilton et al. had been pending for some time, Crouch and others  [**8] filed an intervening petition, in which they alleged that they were the owners of one-third of the land described in appellee's petition under a deed from Richardson Herndon, which is as follows: "This indenture made and entered into this 8th of May, 1845, between Richardson Herndon of Knox, state of Kentucky, of the one part, Oliver Perry Herndon and Jane Herndon, children of Benjamine F. Herndon, of county and state aforesaid, of the other part, witnesseth, that is to say: The above Richardson Herndon for good will and affection and for the sum of one dollar in hand paid by the above Oliver and Jane Herndon before the selling and signing of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, and conveyed, and by these presents doth grant, bargain, and convey, alien, and confirm to the said Oliver P. Herndon and Jane Herndon, etc., all my interest in the several tracts of land at mouth of Laurel river and Cumberland river, Whitley county, Ky., that is, two thirds of said land entered by myself or by Benjamine Herndon. The other third part I give a bond to Martin Beaty for his benefit to have and to hold the said tracts or parcels of land and agreeable  [**9] to said bond, and further give bequeath and sell and confirm to said Oliver and Jane Herndon the two thirds above-stated free from me, my heirs or assigns, forever, for their benefit as above stated, but from no other persons whatsoever. In testimony whereof I hereunto set my hand and seal the day and date above written. Richardson Herndon. [Seal.] China Herndon. [Seal.]" The certificate of acknowledgment of the above deed is as follows: "Knox County—ss.: I, Robert H. Redd, deputy for James I. Ballinger, clerk of the county court of county aforesaid, do certify that this deed from Richardson Herndon and his wife China Herndon, was on the 20th day of May, 1845, and acknowledged by the said Richardson Herndon to be his act and deed and the said China Herndon, wife of the said Richardson Herndon, being by me examined privately and apart from her husband, declared that she did freely and voluntarily seal and deliver the said writing and wishes not to retract it, and acknowledged the said writing again shown and explained to her to be her act and deed, and consented that the same may be recorded, whereupon the said hath been duly admitted to record in my office. Att.: Robert H. Redd, D.  [**10] C. K. C. C."

They alleged that Jane Herndon, one of the grantees in the above deed, afterwards intermarried with one     Neilson, and that there were born to her by this marriage only two children, Nellie and Sallie. Nellie intermarried with George S. Crouch, and to this marriage there were born only two children, Katie D. and Janie R. Sallie inter-married with A. G. Stewart, and there were born to her by this marriage only three children, Alex V., Gaines F., and Benjamine R. Stewart, all of whom are appellants herein. They alleged: that their mothers, Sallie and Nellie, and their grandmother, Jane Herndon, died many years ago intestate; that they were the only living children or grandchildren and only lineal descendants and heirs at law of Jane Herndon, and as such were the owners of the one undivided one-third of all the lands mentioned in the petition; that appellee, Steele, in violation of their rights, and in hostility to their title, was claiming to be the owner of the land; that he was giving it out in speech that he was the owner, and was casting a cloud upon their title. They alleged that they and the appellee were asserting title to the land from the same source—that is, from  [**11] Richardson Herndon—and the only claim appellee or his vendors had to the land was through the deed of Richardson Herndon to O. P. Herndon an Jane Herndon, and that her interest had never been alienated or conveyed, nor had their interest ever been alienated or conveyed. Appellee, by a proper pleading controverted  [*381]  every allegation of their pleading, except the one stating that they were the only descendants, now living, of grantee, Jane Herndon, and interposed a plea of the 15 and 30 year statutes of limitations. Appellants denied this plea, but did not allege any reason why it was not applicable to them. However, their counsel contend in their briefs that, as they were joint tenants, or tenants in common, with appellee and his remote vendors, they had no notice of the adverse claim and possession of the land and are not barred by reason thereof.

This principle is sound as a general rule, but the facts of this case do not support it. There is not a scintilla of evidence in the record that appellants were joint owners, or tenants in common, with appellee or his remote vendors. The only allegations in appellants' pleadings with reference to this matter were denied positively by appellee,  [**12] and no testimony was introduced to support the allegations. The testimony introduced shows that appellee claimed to own this land by reason of a remote conveyance from one Joseph Logan, who, with his father, had been in the actual adverse possession of the land for more than 40 years claiming it as agents and tenants of one James H. Herndon and his heirs. It is not shown when James H. Herndon died, but it does appear that he died leaving eight children, and that appellee's vendors received a conveyance for this land from the eight children and their descendants. There is no testimony in the record showing that James H. Herndon was even related to Richardson Herndon or Benjamine F. Herndon, two of the original grantees of the land; nor is there any proof in the record showing how James H. Herndon became the owner or claimant of the land. For these reasons the contention of appellants' counsel that, as they were joint owners, or tenants in common, the plea of the statutes of limitations cannot apply to them, must fail. The statutes of limitations are applicable to appellants as in the first-styled case.

There is another reason presented why appellants' claim to this land cannot be sustained  [**13] in this action. It appears that one L. E. Bryant agreed, as their agent and attorney in fact, to investigate their title to the land and to institute suit for the recovery thereof, to furnish the money to prosecute the action, and to take one-half of the land recovered as his compensation. In view of what we have already said, we deem it unnecessary to pass upon this question.

For these reasons the lower court did not err in dismissing their action, and the judgment on their appeal, as well as the appeal of Hamilton et al., is affirmed; and reversed on the appeal of Henry P. Brown, and remanded for a judgment consistent with this opinion.

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