Maguiar v. Henry

• Decision Date: 20 March 1886
• Citation: 7 Ky.L.Rptr. 695,84 Ky. 1
• Parties: MAGUIAR v. HENRY, & c.
• Court: Kentucky Court of Appeals

84 Ky. 1

7 Ky.L.Rptr. 695

MAGUIAR v. HENRY, & c.

Court of Appeals of Kentucky.

March 20, 1886

Appeal from Louisville Chancery Court.

James P. Helm and Helm Bruce for appellant.

C. H Gibson, C. S. Grubbs, M. A & D. A. Sachs, James G. Sachs and Willoughby Rodman for appellees.

OPINION

Holt Judge.

Section 19 of what is known as the " Auditor's Agent Act," approved may 6, 1880, provides:

" In all suits and controversies involving the title to land claimed and held by virtue of a deed executed by the auditor for nonpayment of taxes thereon, the person claiming adverse title to such deed shall be required to prove, in order to defeat the title conveyed by such deed, either that the land described therein was not subjected to taxation at the date of the assessment of the tax for which it was sold or that the taxes for the nonpayment of which the land was sold were paid to the proper officer within the time limited by law therefor, or that the same has not been assessed for the taxes for the nonpayment of which it was sold, or that the same had been redeemed pursuant to law, or that a certificate in proper form had been given by the proper officer within the time limited by law for paying taxes or redeeming from sales made for the nonpayment thereof, stating that no taxes were due or that the lands were not subject to redemption; but no person shall be permitted to question the title acquired by such auditor's deed without proving that he or the person through whom he claims title had title to the land at the time of the sale thereof for nonpayment of taxes or subsequently, which title was acquired from the State."

The appellant, T. A. Maguiar, purchased the land of the appellee John Henry, at a tax sale made under said act; obtained the auditor's deed to it and then brought this action to recover it, alleging in substance in his petition that after proper advertisement it was sold by the auditor and conveyed by him to the appellant as the purchaser. There is no averment as to an assessment or the other preliminary steps leading to a valid tax sale save that of advertisement. A general demurrer was sustained to the petition, and the action dismissed.

It is noticeable that the section supra requires a defendant to a suit upon a tax deed to show a title from the Commonwealth before he can deny the plaintiff's right. It is a general rule that the latter must recover upon the strength of his own title. Here, however, he does not claim under a patent or a grant from the State simply, but under a deed which purports to divest the defendant of and invest him with the title, and yet the defendant is forbidden to show his right to the property, although it may be sanctified by actual possession for a century, unless he can show a grant from the State to him of those through whom he claims title.

The act imposes upon the owner of land in order to defeat a tax title the burden of proving one of five things: Either that the property was not subject to the tax, or that it had been paid, or that the land had not been assessed, or had been redeemed, or that the officer has certified that no taxes were due. It cuts off all other defenses.

Three serious questions are presented:

1st. Can the legislature shift the burden of proof from the tax claimant to the owner in possession of the property?

2d. If so, yet must not the plaintiff allege in his petition the facts essential to support a tax title?

3d. Is not the act unconstitutional, at least so far as it undertakes to deprive the owner of material existing defenses?

The laws for the assessment and collection of taxes are necessarily summary in their character. Title is divested by special statute, but it is stricti juris, and must be followed in all material respects. The taxpayer is entitled by " the law of the land" to be heard before he is condemned. Magna Charta gave him this right. " No freeman shall be taken or imprisoned or be disseised of his freehold, or liberties, or free customs, or be outlawed or exiled, or any otherwise destroyed, nor will we pass upon him nor condemn him, but by lawful judgment of his peers or by the law of the land. We will sell to no man, we will not deny or defer to any man, either justice or right."

The Constitution of the United States re-echoes this fundamental rule so early established by providing that no person shall be deprived of life, liberty or property " without due process of law; " while our State Constitution says, " nor can he be deprived of his life, liberty or property unless by the judgment of his peers or the law of the land."

The legislative power to levy and collect taxes is not arbitrary. The law can not be so framed as to prevent the citizen from inquiring through the courts whether there has been a forbidden assumption of legislative power. For instance, a statute denying to him the right in defense of his property to inquire whether a gross inequality of burden has been imposed or fraud practiced in the assessment or sale of his property, would be unconstitutional because it would deprive him of his property without a hearing and without " due process of law."

Courts can not thus be deprived of jurisdiction by the legislature. If so, one co-equal department of the government could at once destroy the other.

Conceding...