Cockrum v. West
| Decision Date | 10 December 1889 |
| Docket Number | 13,971 |
| Parties | Cockrum et al. v. West |
| Court | Indiana Supreme Court |
Pelition For a Rehearing Overruled Feb. 28, 1890.
From the Pike Circuit Court.
Judgment affirmed.
J. W Wilson and E. A. Ely, for appellants.
E. P Richardson and A. H. Taylor, for appellee.
The only questions involved in this case relate to the sufficiency of the complaint as a cause of action, and to the sufficiency of the second paragraph of the answer thereto.
The complaint alleges, substantially, that on the first day of January, 1875, one James M. Cockrum was the owner of the southeast quarter of section 33, and the southwest quarter of section 34, in township 1 south, of range 8 west, in Pike county, Indiana, containing 320 acres, and that he continued to own the same until the 12th day of January, 1880, when he sold and conveyed the same to the appellants; that while he so owned the same he neglected to pay the taxes assessed thereon, and the same, by reason thereof, was returned delinquent by the treasurer of Pike county for the years 1875, 1876, 1877, 1878, and 1879, amounting to the sum of $ 157.15, including penalties; that on the 16th day of December, 1878, the said James M. Cockrum became the owner of the west half of the northwest quarter of section 9, in township 2 south, of range 8 west, in Pike county, Indiana, containing 80 acres, upon which he caused all the taxes to be paid in full; that on the 10th day of September, 1879, the said James M. Cockrum and his wife executed to Lottie McConnell a mortgage, with full covenants of warranty, on said eighty-acre tract to secure the payment of a note of $ 1,000, which mortgage was duly recorded; that at the November term, 1882, of the Pike Circuit Court, the said Lottie McConnell foreclosed her said mortgage, sold said eighty-acre tract of land on a certified copy of the decree, and bid the same in for the sum of $ 1,200; that she assigned the certificate of purchase to the appellee, who obtained a sheriff's deed thereon; that the auditor of said county transferred the taxes accrued against said three hundred and twenty acre tract of land to said eighty-acre tract, and on the 28th day of March, 1881, sold said eighty-acre tract for the non-payment of said taxes and in satisfaction thereof to William Rowe, and issued to him a certificate of purchase therefor; that Rowe assigned said certificate to Peter M. Cockrum, who obtained a tax deed for said land, and at the June term, 1886, in an action to quiet title to said land, in the Pike Circuit Court, obtained a finding in his favor for the amount of taxes, interest, and penalty due thereon, and, on the 19th day of February, 1887, sold said land for the sum of $ 430, on a certified copy of said decree in satisfaction thereof; that said James M. Cockrum had no personal property in said county at any time while the owner of any of said real estate; that the land of the plaintiff was sold to pay the taxes assessed against the said three hundred and twenty-acre tract solely, and not for the payment of any tax, or other lien, against the said eighty-acre tract. Prayer for judgment for $ 500, and that the same be declared a lien on said three hundred and twenty-acre tract of land.
The appellants demurred to this complaint, but the demurrer was overruled, and they then filed an answer in two paragraphs, the first being a general denial.
The second pleads the decree rendered in favor of Peter M. Cockrum against the appellee in the suit above named to quiet title on his tax deed, as an estoppel in this case. To this answer the court sustained a demurrer.
A trial of the cause resulted in a finding and judgment against the appellants for the sum of $ 439.05, from which they appeal, and assign error calling in question the ruling of the court in overruling a demurrer to the complaint, and in sustaining a demurrer to the second paragraph of the appellants' answer.
It is insisted by the appellants that this action is based upon the provisions contained in sections 6474 and 6475, R. S. 1881, and that as the lands described in the complaint were all owned by James M. Cockrum at the time the taxes accrued, the provisions of said sections do not apply, and that for this reason the complaint does not state facts sufficient to constitute a cause of action.
Section 6474, supra, provides that "Whenever the lands of any one person shall be sold for taxes assessed conjointly on the lands of such person and the lands of another person, and such other person shall not pay his due proportion, the person whose lands shall be sold may redeem the same by paying the amount due to the purchaser and he shall be entitled to recover from such other person whose lands were assessed with his, a just proportion of the redemption money so paid, with lawful interest from the time of such redemption, but no suit shall be brought for the recovery of such proportion until after the expiration of the time allowed for...
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