Jones v. Miracle

• Decision Date: 28 January 1893
• Citation: 93 Ky. 639,21 S.W. 241
• Parties: JONES et al. v. MIRACLE.
• Court: Kentucky Court of Appeals

21 S.W. 241

93 Ky. 639

JONES et al. v. MIRACLE.

Court of Appeals of Kentucky.

January 28, 1893

Appeal from court of common pleas, Bell county.

To be officially reported.

Action by Lewis Jones and others against John A. Miracle to determine the validity of a tax title held by defendant. From a judgment in defendant's favor, plaintiffs appeal. Reversed.

Weller & Hays, for appellants.

Unthank & Holt, for appellee.

LEWIS J.

Robert A. Miracle died intestate, and owner of a tract of land containing 500 acres, that descended to his widow and five children; and this action was brought in 1892 by appellant Lewis Jones, claiming an undivided fifth of the land in virtue of a purchase in 1886 from one of the heirs at law and by two other heirs, against John A. Miracle and Mary Miracle, his wife, neither of them, however, being an heir of decedent, Robert A., but claiming the whole tract under purchase at sale for taxes in 1883, and also claiming an undivided fifth by purchase in 1886 from one of the heirs. A Slusher, claiming a moiety by purchase from another one of the heirs, was made defendant, but he does not appear to have filed an answer. It is alleged in the petition that the defendant is claiming the entire tract under a deed executed to him not until 1889, although it is recited therein the land was sold November 12, 1883, and then purchased at the inadequate price of $3.50; that the tract of land was listed for taxes in the name of Sarah Miracle, widow of Robert A but the sheriff did not, before making the levy, tender to her a receipt as the law required, though she was a resident of the county in which the land lies; that the sheriff failed to advertise the time and place of said sale at the courthouse door, and failed to return a report in writing to the county clerk, showing when, where, and for what price said land was sold, giving a description of the land sold and that such report was not recorded and indexed by the county clerk. It is further alleged that John A. Miracle, the pretended purchaser, did not file with the county clerk said sheriff's certificate of his purchase. The defendant does not, in his answer, state affirmatively that any one of the specific duties prescribed by statute in such case, and enumerated in the petition, was performed by either the sheriff or the purchaser, but states, in general terms, that said sale was conducted in proper form, as the deed of conveyance by the sheriff sets forth, and traverses or attempts to traverse, the statements of the petition by simply denying the alleged, failure to perform the statutory requirements. No evidence was offered by either party to show whether the sheriff did or not sell the land in the manner required by law, except the deed made by him in 1889, long after his term of office had ended, and the only recital in that is that the land was listed for taxes for the year 1883 in the name of Sarah Miracle; that, she having no personal property out of which the tax could be made, the land was levied on, and, after advertising as the law directs, was sold, when John A. Miracle became...