Gooch v. Benge

• Decision Date: 18 September 1890
• Citation: 90 Ky. 393
• Parties: Gooch v. Benge.
• Court: Kentucky Court of Appeals

90 Ky. 393

Gooch v.Benge.

Court of Appeals of Kentucky.

September 18, 1890.

APPEAL FROM MADISON COURT OF COMMON PLEAS.

S. D. PARRISH FOR APPELLANT.

C. F. & A. R. BURNAM FOR APPELLEE.

JUDGE LEWISDELIVERED THE OPINION OF THE COURT.

Appellant, claiming title under a conveyance to him from the Auditor of Public Accounts, brought this action to recover of appellee a tract of land described in the deed as follows: "Thirty acres of land located in Yates' precinct, Madison county, Kentucky, adjoining the lands of William Witt, and listed for the year 1881 in the name of Rice Benge, being the same property sold for taxes under an act of the General Assembly, entitled `An act to amend the revenue laws,' approved May 6, 1880, and purchased by the party of the second part, as certified to said Fayette Hewitt, Auditor aforesaid, by Rankin Mason, Auditor's Agent, duly appointed and qualified for the county of Madison, State of Kentucky."

Section 1 of the statute referred to being now part of chapter 92, General Statutes, requires the Auditor to "make out for each county a list of all lands which may have been returned to him as having been sold in that county, and bought in by the State for taxes, or other indebtedness to the State, upon which the equity of redemption shall have expired, describing such lands, and charging them with the amount of delinquent tax," &c.

By section 2he is required to cause a copy of such list to be published for four weeks, together with notice that so much of said lands as may be necessary to discharge the taxes, &c., which may be due thereon, will be sold at public auction.

Section 6 provides that after payment of the purchase price shall be made, the agent of the Auditor shall give to the purchaser a certificate in writing, describing the land so purchased, and the sum paid, which certificate shall entitle the holder to possession of the premises therein described; and on presentation of such certificate to the Auditor he shall receive a deed thereto, which shall vest in the grantee an absolute estate in fee-simple.

Being, in substance, so provided as to such cases in section 19, it must be presumed here, in absence of allegation and proof by appellee to the contrary, that the land attempted to be described in the deed was subject to taxation at date of the assessment of the tax for which it was sold; that the taxes, for non-payment of which the land was sold, were not paid to the proper officer within the time limited therefor; that it had been assessed for taxes, for nonpayment of which it was sold; that it had not been redeemed pursuant to law, and that no certificate in proper form had been given by the proper officer within the time limited by law for paying the tax, or redeeming from sale made for non-payment thereof, stating that no taxes were due, or that the land was subject to redemption.

But manifestly there may be, and in section 20 express provision is made in contemplation of, possible existence of causes, other than those enumerated in section 19, which will render conveyances by the Auditor invalid and ineffectual to pass tax titles to purchasers.One of such indispensable conditions is that land shall, as provided in section 1, be described by the Auditor in advertising sale of it; and also, as provided by section 6, in the certificate given by the agent of the Auditor to the purchaser; for without description of each tract a fair sale could not be made; the holder of the certificate could not legally claim, nor be put in possession; nor could the Auditor's deed, made, as it must, in accordance with the certificate presented to him, be rendered at all certain as to the land conveyed, nor, consequently, effectual for any purpose.

The main inquiry then is, whether the description contained in the deed in question is definite and certain enough to pass title of the land in dispute...