Commonwealth v. Nute

• Decision Date: 25 March 1903
• Citation: 72 S.W. 1090,115 Ky. 239
• Parties: COMMONWEALTH v. NUTE
• Court: Kentucky Court of Appeals

72 S.W. 1090

115 Ky. 239

COMMONWEALTH v. NUTE

Court of Appeals of Kentucky.

March 25, 1903

Appeal from Circuit Court, Fleming County.

"To be officially reported."

Action by the commonwealth against Mahala Nute. From a judgment in favor of defendant, plaintiff appeals. Reversed.

B. S Grannis and G. A. Cassidy, for the Commonwealth. Jno. P McCartney, for appellee.

NUNN J.

On the 3d day of April, 1901, the auditor's agent for Fleming county instituted this action or proceeding in the Fleming county court to have certain property belonging to appellee assessed for taxation; alleging that she had failed to assess the property as required by law. A trial was had in the county court, and that court dismissed the proceedings. The appellant appealed to the circuit court, and another trial was had. On this trial the proof showed the following facts That appellee had, in each and every year, at the proper time, listed her money and all property owned by her, except the following annuity, obtained as follows: She was the owner of a dower interest in 218 acres of land, and on the 20th day of August, 1890, she sold and conveyed her interest therein to Chas. Nute and J. B. Glasscock for and in consideration of the sum of $500, due and payable on the 1st day of March 1892, and $500 each succeeding 1st day of March thereafter during the natural life of appellee. It is conceded that she received $500 on the 1st day of March each year since that time on this contract, and paid the taxes thereon, or the balance on hand, on the 15th day of September each year. The circuit court dismissed the proceedings, from which judgment appellant appeals to this court.

The appellant contends that the appellee should have listed for taxation for each of the 10 preceding years the present worth or the actual value of the obligation of Nute and Glasscock valued under the life tables. We are of the opinion that the appellant was correct in its contention. The appellee should have listed this obligation according to its present value for each year according to the life table. If she had retained her dower interest in the land, she would have been compelled to pay the taxes on it, and this obligation represented her interest therein. There is a very important question involved in this proceeding, and in cases of like character, and that is as to whether or not there is any law as to limiting the time for retrospective assessments of property for taxation. This court is of the opinion that the statute laws of the state settle the question that limitations do apply, and that property cannot be retrospectively assessed for taxation for more than five years from the institution of a proceeding like this. Section 469 of the Kentucky Statutes is as follows: "The term 'action,' when used in this revision, shall be construed to include all proceedings in any court of this commonwealth." By this section it will be seen that this proceeding by the auditor's agent to back-assess for taxes is an action, within the meaning of the statutes. Section 2523 of the Kentucky Statutes is as follows: "The limitations prescribed in this chapter shall apply to actions brought by or in the name of the commonwealth, in the same manner as to actions by private persons,...