Howell v. Bledsoe, 760.
| Decision Date | 28 January 1959 |
| Docket Number | No. 760.,760. |
| Citation | 169 F. Supp. 552 |
| Parties | Isoline Campbell HOWELL, Plaintiff, v. Baxter BLEDSOE et al., Defendants. |
| Court | U.S. District Court — Eastern District of Kentucky |
Cleon K. Calvert, Pineville, Ky., Murray L. Brown and Roy E. Tooms, Jr., London, Ky., Calvert C. Little, London, Ky., for plaintiff.
Roy W. House, Manchester, Ky., Bruce Stephens, Jr., Hazard, Ky., for defendants.
This action is a collateral attack upon a judgment of the Circuit Court of Clay County Kentucky entered on December 9, 1940, pursuant to which plaintiff's interest in the minerals underlying a large acreage of land in Clay County, Kentucky, was sold to satisfy liens adjudged in favor of the Commonwealth of Kentucky for delinquent taxes.
Plaintiff, Isoline Campbell Howell, is a citizen of Georgia. Defendants are assignees or grantees of the purchaser at the judicial sale, or their heirs or grantees.
The action in the Clay Circuit Court in which the judgment was rendered was filed on September 24, 1940, pursuant to and under authority of section 17 of chapter 180 of the Acts of the General Assembly of Kentucky of 1940, which became effective a few months before the institution of the action.
Section 17 of chapter 180 of the 1940 Act, so far as here pertinent, provides as follows:
"When the Commonwealth has reason to believe that any sale heretofore or hereafter made by the sheriff or collector, under the authority of section 4149, Carroll's Kentucky Statutes, 1936 Edition, or under authority of said section as amended and re-enacted in section 2 of Chapter 21, Acts of the First Extra Session of the 1938 General Assembly; or any sale heretofore or hereafter made under the authority of section 4154, Carroll's Kentucky Statutes, 1936 Edition, or under authority of said section as amended and re-enacted in section 5 of Chapter 21, Acts of the First Extra Session of the 1938 General Assembly, is for any reason invalid, such invalidity may be alleged in a proceeding to establish the lien provided for in section 4036, Carroll's Kentucky Statutes, 1936 Edition, and such action shall be brought on the relation of the Commissioner of Revenue, * * *." (Underscoring added).
Section 4036, Carroll's Kentucky Statutes, 1936 Edition, above referred to, provided that, whenever any person should purchase property sold for delinquent taxes and the sale was set aside, the purchaser should have a lien on the property for the amount of the taxes and costs paid by him, with interest, and further provided:
"Such lien may be enforced against such property by action as are other liens, at any time after the invalid sale but prior to the expiration of the lien by reason of limitation, whether the purchaser be the Commonwealth of Kentucky and other taxing districts or any other person, firm or corporation." See, Commonwealth ex rel. Martin v. Union Labor Temple, 279 Ky. 692, 695, 131 S.W. 2d 843, 845.
Named as defendants in the action instituted in the Clay Circuit Court were the plaintiff, whose name then was Isoline Campbell McKenna, her husband, her father and her uncle. However, the named defendants, besides the plaintiff, were either dead or had never had any interest in the minerals, and it is now stipulated that on September 24, 1940, the date the action was filed, plaintiff was sole owner of the mineral rights in question, and she was the only person chargeable with any taxes thereon, or with the duty of listing same for taxation.
On the basis of the Commonwealth's petition verified by the County Attorney of Clay County, as authorized by Carroll's Civil Code of Practice section 117, stating that the defendant, Isoline Campbell McKenna, was a non-resident of and believed to be absent from the state, a warning order was issued directing her to appear and defend within 30 days, and a regularly practicing attorney of the Clay Circuit Court was appointed Warning Order Attorney to notify defendant of the action. The report of the Warning Order Attorney shows he sent a letter of notice to the defendant (the plaintiff herein) to her address given in the petition, and that the letter was returned unclaimed. He reported that he had made a careful investigation of the case and that he could make no affirmative defense.
The petition of the Commonwealth set out the dates of prior sales of the mineral interests for taxes, all of which appear to have been sales by the sheriff; alleged that the sales were invalid for various reasons and should be set aside; asked that the sales be set aside and the Commonwealth adjudged liens in the amount for which it had bought in the mineral interests at each sale, and further asked that the liens so adjudged be foreclosed.
More than 60 days after the issuance of the warning order, a special term of the Clay Circuit Court was held, and on the fourth day of that term, December 9, 1940, the defendants having failed to answer, the court entered judgment against them by default.
It was adjudged that the tax sales for the years 1931, 1932, 1933, 1934, 1935, 1936, 1937 and 1938 were invalid and they were set aside. The Commonwealth was adjudged a lien in the amount for which it had bought in the mineral rights for each of those years, with interest from the date of sale and the costs. The judgment further directed that so much of the mineral interests as was necessary to satisfy the Commonwealth's claim be sold.
The total amount of the judgment in favor of the Commonwealth, including costs and interest from the date of each sale declared to be invalid, as computed by the Master Commissioner of the Clay Circuit Court was $5,661.93 and costs.
According to the report of the Master Commissioner, after duly advertising the property as to time, terms and place of sale as directed by the judgment, on January 6, 1941, the mineral interests in the land...
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