Miller v. Powers

• Decision Date: 27 May 1919
• Citation: 212 S.W. 453,184 Ky. 417
• Parties: MILLER ET AL. v. POWERS ET AL.
• Court: Kentucky Court of Appeals

212 S.W. 453

184 Ky. 417

MILLER ET AL. v. POWERS ET AL.

Court of Appeals of Kentucky.

May 27, 1919

Appeal from Circuit Court, Wayne County.

Action by Belle Miller and others against M. W. Powers and others. Judgment for named defendant, and plaintiffs appeal. Reversed.

Henry C. Gillis, of Williamsburg, and O. B. Bertram, of Monticello for appellants.

Duncan & Bell, of Monticello, for appellees.

SAMPSON J.

This action, by Belle Miller and others, claiming to be the owners, as heirs of W. P. Goodin, of a two-fifths undivided interest in a 50-acre tract of land on little South fork of Cumberland river, was instituted in the Wayne circuit court in August, 1914, against M. W. Powers and others for a sale of said land and a division of the proceeds as well as an accounting for rents and profits among the joint owners, as their interests appear, on the averments that the lands are not susceptible of division in kind, and that each interest will be worth less than $100. All parties to the action claim the land under W. P. Goodin, who died intestate as to this tract in 1864. He left surviving seven children, two of whom shortly thereafter died intestate and childless. Each of the five remaining children was entitled to a one-fifth interest in the 50-acre tract of land in controversy, Elizabeth Campbell, a daughter, occupied the lands as a home for many years and up to about 1903, when the house was destroyed by fire, and Mrs. Campbell moved elsewhere. Appellants insist that Mrs. Campbell, a joint tenant, was occupying, holding and claiming said land for herself and her brothers and sisters, but appellees assert that she was claiming it in severalty adversely to her cotenants, and that her claim and possession amounted to a disseizin which vested title in her by adverse possession many years before the commencement of this action. While Mrs. Campbell was residing upon the land it was assessed for taxation in the name of the Goodin heirs for the years 1893 and 1894, and, these taxes being unpaid, the sheriff sold the 50-acre tract of land in January, 1895, to satisfy the taxes, 75 cents, and cost, $2.92, at which tax sale J. M. Dodson became the purchaser. Dodson afterwards transferred his bid and purchase to Emily Bell, a daughter of Mrs. Campbell, and granddaughter of W. P. Goodin. In June 1898, the sheriff executed, acknowledged, and delivered to Emily Bell a deed for this tract of land. At this time Mrs. Campbell resided upon the land, holding and claiming it either in severalty or for herself and the other heirs of Goodin. None of the other Goodin heirs lived in Wayne county at that time, but some of them lived in Whitley county, Ky. and others in different states. After the house was burned and Mrs. Campbell moved from the land, Emily Bell, claiming under the tax deed, in February, 1904, sold and conveyed said land to Joseph Troxell, and Troxell immediately moved upon the place, took possession, cleared some land, put out an orchard and built a new house. In 1905, Troxell sold the land to appellee Powers, and Powers leased the land for several succeeding years to Troxell, and Troxell continued to live there until 1910. Thereafter Powers let the land to other tenants, and was in the actual possession thereof at the institution of this action in 1914.

The answer of appellees contained a traverse, and in a second paragraph asserted title in appellee Powers under the tax deed of January, 1895. The third paragraph presented the 15-year statute of limitations as a bar to appellants' right of recovery. The fourth paragraph avers that more than 5 years had elapsed since the taxes on the lands became in arrears, and that more than 5 years had elapsed since the execution and delivery of the sheriff's deed on the 20th of July, 1898, and the filing of plaintiff's petition, and reliance is had upon the 5-year statute of limitation as a bar to plaintiffs' right to recover. By the fifth paragraph of the answer appellees alleged that Elizabeth Campbell, one of the Goodin heirs, conveyed her interest in the lands in controversy to M. W. Powers before the commencement of this action, and that she had by adverse possession for 15 years acquired title to the whole tract, and this was offered as a bar to plaintiffs' proceeding.

By reply the appellants admitted that the lands in controversy descended from W. P. Goodin, and that the same had been assessed for taxation for the years 1903 and 1904 in the name of his heirs, and that the taxes on said property for said years was 75 cents, and that the property was sold for taxes by the sheriff in January, 1905, and that Dodson became the purchaser at the tax sale, but they averred that at the time the property was sold for taxes Elizabeth Campbell, who is one of the children and heirs at law of Goodin, resided upon said land, and that the sheriff knew this fact at the time and before he sold said land, and that certain others heirs of Goodin resided in Whitley county, Ky. at the time and long before said sale, and this fact was known to the sheriff, and that the sheriff knew the post office address of these and various other heirs and owners of the land in controversy, but that the sheriff did not give to either of said claimants, or any one, notice of the sale of said land, as required by the statutes; that the taxes and cost on said land for the years 1893 and 1894 amounted to $2.92, but that the sheriff did not within 30 days, or at all, give to said Dodson, or any one for him, a certificate of purchase describing the lands and stating the time of sale and the price at which said land sold, and that said Dodson nor any one claiming under him, ever at any time or at all gave appellants, or either of them, or any one under or through whom they, or either of them, claim, written notice of Dodson's purchase as provided by the statute. They also denied that Dodson transferred his bid to Emily Bell. The plea of limitation offered by the defendants was traversed.

Evidence was taken in support of the issues, and, the case being submitted, the trial court dismissed appellants' petition and adjudged Powers the exclusive owner of the land, and appellant Miller and others prosecute this appeal.

Each party recognizes...