James v. Blanton
Decision Date | 14 October 1909 |
Citation | 121 S.W. 951,134 Ky. 803 |
Parties | JAMES, Auditor, et al. v. BLANTON et al. |
Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Franklin County.
"To be officially reported."
Suit by J. B. Blanton and others against Frank P. James, Auditor, and another, to restrain defendants from making a sale of certain property in controversy for taxes. Judgment for plaintiffs and defendants appeal. Reversed and remanded.
James Breathitt, Atty. Gen., and John F. Lockett, Asst. Atty. Gen for appellants.
J. S Luscher, for appellees.
In April, 1893, the sheriff of Franklin county sold certain property of Mrs. Alice Blanton at public sale to make the taxes due the state and county for the year 1892; and, no one else bidding, the property was bid in for the state. Similar sales were made in the years 1895 and 1896. In the year 1908 the property was sold in a suit against Mrs. Blanton, and was bought by J. B. Blanton and others. In January, 1909, James A. Violett, a state revenue agent, acting under the direction of the Auditor, advertised the land for sale for the taxes for 1892, 1895, and 1896, for which the property had been bid in by the state at the sheriff's sales above referred to. Thereupon J. B. Blanton and others brought this suit to enjoin the Auditor and Violett, as revenue agent, from making the sale of the property for the taxes, alleging in their petition that they were the owners of the property by reason of their purchase at the judicial sale; that more than 15 years had elapsed since the cause of action accrued in favor of the state as to the taxes for 1892, that more than 5 years had elapsed since the accrual of the cause of action as to the taxes for 1895 and 1896, and that the whole claim was barred by limitation; that since 1896 the property had been assessed and the taxes paid year by year by Mrs. Blanton and those claiming under her; and that the commonwealth is estopped now to claim the ownership of the land. The petition also contained this allegation:
The Auditor filed a demurrer to the petition, which was overruled. He then filed an answer, in which he admitted the purchase of the property by the plaintiffs in the proceeding against Mrs. Blanton, but pleaded that at the time of their purchase the records of the county clerk's office showed the sheriff's sale of the land and the purchase by the state, and that they took the property with notice of the state's rights. He admitted that Mrs. Blanton and those claiming under her had been in possession of the property since its purchase by the state, and had paid the annual taxes for the years since 1896, and that no proceeding had been instituted by the state to recover the land or the taxes. He alleged that he was only endeavoring on behalf of the state to collect the taxes, interest, and penalties, and offered to release all right or title of the state to the property upon the payment of the taxes. The circuit court sustained a demurrer to the answer, and perpetuated the injunction which had been granted by the clerk. The commonwealth appeals.
The ruling of the circuit court was apparently based upon the ground that the commonwealth, by its purchase of the land at the tax sale, acquired only a lien upon it for its taxes, and that this lien which is created by statute was barred by the limitation of 5 years. It has been held that taxes are claims created by statute, and are barred after 5 years from the time the cause of action accrued. On the other hand, if the title to the property vested in the commonwealth by the tax sale, then its right of action was not barred until 15 years after it accrued. In holding that the state acquired only a lien by virtue of its purchase at the tax sale, the circuit court apparently followed Husbands v. Polivick, 128 Ky. 652, 96 S.W. 825, 29 Ky. Law Rep. 890. The effect of a tax sale will depend upon the statute under which it is made. The sales in question in that case were made for the year 1884, and were necessarily governed by the law then in force. The court in its opinion quotes the provisions of these statutes, and shows that under them the Legislature only intended that the state should acquire a lien for the taxes by its purchase at the tax sale. But in that opinion it was clearly intimated that the Legislature might provide otherwise if it saw fit to do so. The present statutes are materially different from the statutes then in force. Sections 4152, 4153, and 4154, Ky. St. (Russell's St. §§ 6010-6014), under which the sales here in controversy were made, provide as follows:
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