Allen v. Perrine

• Decision Date: 30 April 1898
• Citation: 103 Ky. 516,45 S.W. 500
• Parties: ALLEN v. PERRINE, Deputy Sheriff.
• Court: Kentucky Court of Appeals

45 S.W. 500

103 Ky. 516

ALLEN v. PERRINE, Deputy Sheriff.

Court of Appeals of Kentucky.

April 30, 1898

Appeal from circuit court, Mason county.

"To be officially reported."

Action by Ella M. Allen against Samuel P. Perrine, deputy sheriff. From an order sustaining a demurrer to plaintiff's petition, and one dismissing her petition and dissolving the injunction, and a judgment for costs, plaintiff appeals. Reversed.

A. M J. Cochran, for appellant.

Thos R. Phister, for appellee.

GUFFY J.

It is substantially alleged in the petition in this action that the appellant is the owner of 89 acres of land in Mason county conveyed to her by deed January 5, 1893, by Allie B. McAtee, and that, at the time of the conveyance, appellant held a mortgage upon the same to secure an indebtedness due her from said McAtee in the sum of $4,000, with interest from June 25, 1889, until paid, which note and mortgage were executed on June 25, 1889, and were an outstanding lien on said land during the years 1889, 1890, 1891, and 1892, and said land was worth in value less than the mortgage lien during these years, and at the time of the conveyance to her. It is further alleged, in substance, that during each of said years the said McAtee owned and had in his possession, on said land, and in this (Mason) county, personal property which exceeded greatly in value the amount of taxes due from him to the state of Kentucky and county of Mason, and such fact was known to the defendant, Samuel P. Perrine, who was deputy sheriff of Mason county during said years of 1889, 1890, 1891, and 1892, for John W. Alexander, sheriff of Mason county, and afterwards J. C. Jefferson, sheriff of said county, and ever since has been, and still is, said deputy, and who had in his hands for collection the taxes due from said McAtee for each of said years; that the defendant, Perrine, notwithstanding he knew of this fact, suffered and permitted said McAtee to sell and dispose of said personal property, and collect and receive the proceeds therefor, without making any attempt to collect his said taxes out of same, and has caused the property conveyed to her by McAtee in 1893, and which she now owns, to be advertised for sale at the court-house door on the 11th day of March, 1895, for the taxes due from the said McAtee for said years 1889, 1890, 1891, and 1892, amounting to the sum of $268.30, all of which plaintiff had no notice of before said advertisement, and, unless enjoined and restrained from so doing, he will sell in pursuance to said advertisement; that said defendant and his principal had accounted to the state and county for the taxes due from said McAtee for said years at the time they were required to settle, and the same are now due the defendant, and not the commonwealth of Kentucky, or the county of Mason; that said threatened sale for taxes for said years of 1889, 1890, 1891, and 1892 will produce great and irreparable damage to plaintiff. An injunction was prayed for, and obtained, restraining the defendant from selling the land for the taxes for the years 1889, 1890, 1891, and 1892. The defendant entered a general demurrer to the petition, which was sustained by the court; and, plaintiff failing to plead further, her petition was dismissed, and the injunction dissolved, and judgment rendered against her for costs, to which plaintiff excepted, and prayed an appeal to this court, which was granted.

It appears from the petition that the appellant had a mortgage lien upon the land in question, for an amount in excess of its value, at and before the time the taxes enjoined were assessed or became a charge against McAtee, and that she purchased the land in 1893, taking therefor an absolute deed in part discharge of her mortgage debt. It is the contention of the appellee that the commonwealth had a lien upon the land in contest for the taxes in question, and that, the sheriff having accounted for the same, he is subrogated to all the rights of the commonwealth. Section 4021, Ky. St which seems to be substantially the same as the provisions in the General Statutes, provides that the commonwealth and each county shall have a lien on the property assessed for the taxes due them, respectively, which shall not be defeated by gift, devise, sale, alienation, or any other means whatever, unless the gift, sale, devise, or alienation shall have been made more than five years before the institution of proceedings to enforce the lien, and nothing shall be exempt from levy and sale for taxes and costs incident to the sale. It will be seen that the appellant acquired her lien upon the land in contest in June, 1889, before any lien had attached for the taxes in contest. One of the questions to be determined is whether or not the defendant can voluntarily pay McAtee's...