Locke v. Catlett

• Decision Date: 17 April 1884
• Docket Number: 11,325
• Citation: 96 Ind. 291
• Parties: Locke v. Catlett et al
• Court: Indiana Supreme Court

96 Ind. 291

Locke v. Catlett et al

No. 11,325

Supreme Court of Indiana

April 17, 1884

Rehairing Date: June 21, 1884

Reported at: 96 Ind. 291 at 297.

From the Superior Court of Vanderburgh County.

A Iglehart, J. E. Iglehart and E. Taylor, for appellant.

A. C Turner, W. W. Ireland, C. Denby and D. B. Kumler, for appellees.

OPINION

Bicknell, C. C.

The appellant filed a complaint against the appellees to quiet his title to land in Evansville, which he had purchased from the county auditor at private sale for taxes, or else to enforce the plaintiff's lien upon sad land for the money paid by him.

The first paragraph of the complaint alleged a purchase from the auditor at private sale for $ 246.71, of land previously offered at public sale by the county treasurer for taxes due and unpaid, but unsold for want of bidders, having become delinquent for the taxes from 1872 to 1879 inclusively, amounting to $ 216.71; that said sale was made in conformity to law, and that plaintiff took a certificate of his purchase; that the time of redemption having expired, and said land not being redeemed, the county auditor, on September 30th, 1882, made plaintiff a deed for the land, which was duly recorded; that plaintiff afterwards paid the taxes on said land for 1880 and 1881, in all $ 40.29.

The second paragraph of complaint alleged that the land was duly entered for taxation in the names of the appellees, and taxes were duly levied thereon for each of the years from 1872 to 1879, inclusively, and were returned delinquent for each of said years, not having been paid; that the land was duly offered at public sale by the county treasurer each year, due notice thereof having been given at the proper time and place, for the taxes, penalty, interest and costs, accruing for each current year, and the delinquent taxes for previous years, and was not sold for want of bidders, and that on the 9th of February, 1880, at the court-house door of the county, due notice having been given for the delinquent taxes thereon due, together with interest, penalty, costs and charges for the year 1879 and said previous years, and said land not being sold for want of bidders, the same was, on September 13th, 1880, duly sold by said auditor at private sale, pursuant to section 247 of the act of the General Assembly of Indiana, approved December 21st, 1872, to this plaintiff, for $ 246.71, that being the amount of taxes, penalty, interest and costs then due; that plaintiff paid said sum to the county auditor and took from him a certificate of purchase; that the time for redemption having expired, and said land not having been redeemed, said auditor, on September 30th, 1882, made plaintiff a deed for the land. This paragraph sets out a copy of the deed, which is in the form prescribed by the statute for deeds to be made on public sales, except that it states a private sale instead of a public one, and recites that "the land, having been previously offered at public sale, to wit, on the 9th day of February, 1880, and having failed to sell for want of bidders, was thereby forfeited to the State of Indiana, legal publication having been made of the sale of said lands on the said 9th day of February, 1880, and none of the clauses of the 154th section of chapter 6, R. S. 1852, applying to said land."

This paragraph states that said deed was dated and acknowledged on September 30th, 1882, and was duly recorded, and that the plaintiff thereby became the owner of the land, but that defendants have possession and refuse to recognize his title; that plaintiff has paid $ 40.29 for the taxes of 1880 and 1881, and that no part thereof has been refunded to him. Wherefore plaintiff prays that if not entitled to the possession of the land he may have judgment for the principal, interest and penalty of the sums so paid by him, to wit, for $ 1,000, and that the same be declared a lien, etc.

The only difference in the prayer of these paragraphs is, that in the first paragraph there is a demand that the title be quieted. The defendants demurred jointly and severally to each paragraph of the complaint, and these demurrers were sustained. The plaintiff declined to amend the complaint, and judgment was rendered against him on the demurrers. He appealed. The error assigned is sustaining said demurrers. The claim of the appellant to be quieted in his title is founded upon sections 235 and 236, 1 R. S. 1876, p. 125, and sections 247, 248 and 249, 1 R. S. 1876, p. 127.

Section 235 provides that "In case sales of any land for taxes shall not be perfected for want of bidders, the same shall be considered forfeited to the State, to be disposed of as may be provided by law; and until so disposed of or redeemed shall be continued on the duplicate, charged with all arrearages for which it was so forfeited, and interest; and shall be annually assessed and charged with all accruing taxes, penalties and interest, as other lands."

Section 236 provides that "Such lands shall be annually offered for sale, and on the same terms as other delinquent lands; and until sold for the amount of all arrearages may be redeemed," etc.

Section 247 is as follows: "Any forfeited or unsold tax land may be purchased at private sale, upon application therefor to the proper county auditor, and upon paying to the county treasurer, on the certificate of the county auditor, the amount for which the same was or should have been first offered, with interest upon said amount at ten per cent. per annum, to be computed from the date at which said land was or should have been so offered to the time of making such application and payment."

Section 248. "Upon application and payment being made as above provided, the auditor shall execute to such purchaser a certificate conveying the same interest in and to said lands as would be acquired by virtue of an original public sale, as herein provided."

Section 249: "All the provisions of laws relative to the execution of deeds for land sold at public sale shall be applicable to lands sold at private sale pursuant to the provisions of this act: Provided, That no deed shall be made until after the expiration of two years from the time when such land was or should have been offered at public sale."

It is claimed that these provisions for a private sale of land for taxes are unconstitutional. See the Constitution of the United States, 14th amendment, section 1; R. S. 1881, section 1143; Cooley Tax. 339. These statutes had a short existence. They were enacted in 1872, and are not in the revision of 1881.

The constitutional question above suggested is discussed by the parties in their briefs, but need not be decided here, because it is immaterial so far as the present case is concerned.

So far as the complaint seeks to quiet title it is insufficient. It undertakes to set out the particulars of the plaintiff's title, and fails to state anything as to personal property.

A party, alleging title under a sale of land for taxes, must show that every provision of the statute has been complied with, and especially he must show either that there was no personal property of the owner, or that such property had been exhausted. Ellis v. Kenyon, 25 Ind. 134; Smith v. Kyler, 74 Ind. 575; McWhinney v. Brinker, 64 Ind. 360.

Ordinarily, this is matter of evidence, but where, in such a case, the plaintiff undertakes to state the particulars of his title in his complaint, the pleading will be defective if any of the material steps are omitted. Keepfer v. Force, 86 Ind. 81. It is not sufficient to state that the sale was duly made; that is a conclusion of law. The first paragraph of the complaint is also insufficient as to the claim for quieting title, because it fails to allege that the defendants make any claim to the title or the possession. Nutter v. Fouch, 86 Ind. 451.

In the second paragraph of the complaint the tax deed is incorporated. "Such deed shall be prima facie evidence of the regularity of the sale of the premises described in the deed, and of the regularity of all prior proceedings, and prima facie evidence of a good and valid title in fee simple in the grantee." R. S. 1881, section 6480.

The deed contains no recital as to personal property. It has been repeatedly held that unless the tax deed shows that personal property of the land-owner could not be found or was exhausted, it alone does not show title. Ward v Montgomery, 57 Ind. 276; Steeple v. Downing, 60...