Ransburg v. Kirk
| Decision Date | 30 June 1987 |
| Docket Number | No. 49A04-8612-CV-392,49A04-8612-CV-392 |
| Citation | 509 N.E.2d 867 |
| Parties | Lena RANSBURG, Personal Representative of the Estate of E.M. Ransburg, Appellant, v. Mildred M. KIRK, Hershel Kirk, Marion County Board of Commissioners, City of Indianapolis, and Auditor of Marion County, Appellees. |
| Court | Indiana Appellate Court |
Robert L. Hartley, Jr., Martin, Wade, Hartley & Hollingsworth, Indianapolis, for appellant.
Robert A. Claycombe, William F. Kennedy, Jr., Kothe, Claycombe, Kortepeter & McPherson, Indianapolis, for appellees.
Lena Ransburg, executrix of the estate of her late husband E.M. Ransburg, appeals an adverse judgment in a quiet title action she brought as holder of a tax deed against Mildred and Hershel Kirk, the delinquent record owners of the property. Also named as defendants were the Marion County Board of Commissioners, the City of Indianapolis, and the Marion County Auditor through whom Ransburg claimed title. The parties stipulated to the significant facts. The trial court found Ransburg failed to carry her burden of proof and concluded the county's quitclaim deed passed no interest in the property to Ransburg. Judgment was entered for the Kirks.
Ransburg appeals and argues (1) the trial court erred in failing to assign the burden of proving the tax sale was invalid upon the Kirks and instead required Ransburg to show the tax sale valid; (2) the trial court erred in concluding the Notices of Sale at Public Auction were defective because they did not contain the words "county courthouse"; (3) the trial court erred in concluding the Public Notice of Tax Sale required under I.C. 6-1.1-24-2 must contain a legal description of the property; (4) the trial court erred in concluding the 1981 Notice of Tax Sale sent to the Kirks did not comply with I.C. 6-1.1-24-4 because the parties stipulated all requirements for tax sale were complied with and the stipulation is binding upon the court; and (5) the trial court erred in concluding I.C. 6-1.1-24-6 requires property to be offered for sale in two (2) consecutive calendar years if it becomes impossible to hold a tax sale in one year.
We reverse and remand with instructions to enter judgment in favor of Ransburg.
Mildred and Hershel Kirk were the owners of record of real property located in Marion County, commonly known as 2443 Northwestern Avenue, Indianapolis, Indiana. The Kirks failed to pay the real estate taxes on that property when they were due and the property was offered at auction sale, but did not sell, at the Marion County Tax Sales in 1979 and 1981. There was no tax sale in Marion County in 1980. Pursuant to IND.CODE Sec. 6-1.1-24-6, the Marion County Auditor issued a tax sale certificate to Marion County on the first Monday of December, 1981; a deed was issued to the County one year later. The Marion County Board of Commissioners, through its Department of Public Works, offered the property for sale at auction. Lena Ransburg's late husband, E.M. Ransburg, paid $7,000 for the property and the county executed a quitclaim deed to him on February 23, 1984. The Kirks later refused to acknowledge the validity of the title of E.M. Ransburg and refused to surrender possession to him.
Lena Ransburg brought suit to quiet title and the Kirks raised numerous defects in the tax sale proceedings as affirmative defense. The parties stipulated to the following facts:
"1. The Plaintiff is the duly appointed and acting Executrix of the estate of E.M. Ransburg.
2. On February 23, 1984, the Marion County Board of Commissioners, City of Indianapolis, quitclaimed the property known as Graceland Park, Lot 35, Parcel Number 1007698, commonly known as 243 Northwestern Avenue, Indianapolis, Indiana, to E.M. Ransburg.
3. On December 6, 1982, the Auditor of Marion County conveyed the said real estate to the Marion County Board of Commissioners, City of Indianapolis, by means of a tax deed. That instrument was recorded in Marion County Recorder's office as Instrument Number 83-06118.
4. The Defendants Mildred M. Kirk and Herschel [sic] Kirk failed to pay the real estate taxes on said property when they were due.
5. The Defendant Mildred M. Kirk refuses to acknowledge the validity of the title of E.M. Ransburg and surrender possession to the Plaintiff. The Defendant Mildred M. Kirk claims ownership of the property.
6. The Plaintiff and the Defendants Kirk are in agreement that, with the exception of those items listed below, all statutory requirements in respect of the tax sale and conveyance to E.M. Ransburg were complied with.
7. The Plaintiff and the Defendants Kirk stipulate to the truth of the following facts but disagree on their legal effect:
(a) The delinquent list was not recorded in the office of the Recorder of Marion County. It was recorded on form 137 of the tax sale record. The Defendants assert this was a violation of IC 6-1.1-24-1. The Plaintiff disputes this.
(b) The notice required by IC 6-1.1-24-2 did not state that the sale was to be held at the 'County Courthouse.' Said notice stated: 'Said sale to be held on the second floor of the City-County Building in the Public Assembly Room.' The Defendants Kirk claim this is a violation of the above statute. The Plaintiffs disagree.
(c) The 1981 notice required by IC 6-1.1-24-2 does not contain a description of the land as it appears in the tax duplicate. A copy of the notice is attached to this Stipulation as Exhibit A.
(d) The Auditor has no copy of the 1981 notice required by IC 6-1.1-24-4.
(e) The property was offered for sale in 1979. It was not offered for sale in 1980. It was offered for sale in 1981. There was no tax sale in 1980. The Defendants Kirk contend this is a violation of IC 6-1.1-24-6. The Plaintiff disagrees with this interpretation of the statute."
Record, pp. 14-16. Ransburg introduced evidence at trial including letters testimentary, auction purchase statement, the quitclaim deed, and the Manual for County Auditors of Indiana. The trial court made the following partial findings of fact and conclusions of law based upon the parties' stipulations and the additional evidence admitted at trial:
"Findings of Fact
1. The Plaintiff Lena Ransburg is the duly appointed and acting Executrix of the Estate of E.M. Ransburg.
2. On February 23, 1984, the Marion County Board of Commissioners, City of Indianapolis, executed a quitclaim deed of the property known as Graceland Park, Lot 35, Parcel Number 1007698, commonly known as 2443 Northwestern Avenue, Indianapolis, Indiana, to E.M. Ransburg.
3. On December 6, 1982, the Auditor of Marion County executed a tax title deed of said real estate to the Marion County Board of Commissioners, City of Indianapolis. That instrument was recorded in the Marion County Recorder's office as Instrument Number 83-06118.
4. The Defendants, Mildred M. Kirk and Hershel Kirk, failed to pay the real estate taxes on said property when they were due.
5. Plaintiff, on behalf of the estate of E.M. Ransburg and the heirs and devisees of E.M. Ransburg, claims title to said real estate as against all defendants.
6. The Defendant Mildred E. Kirk claims ownership of the property and refused to acknowledge the validity of the title of E.M. Ransburg and surrender possession to the Plaintiff.
7. The County Auditor has no copy of the 1981 notice to owner of sale.
8. Said property was offered for sale in 1979, was not offered for sale in 1980, and was offered for sale in 1981.
9. Said property was not offered for sale for two consecutive years.
10. The 1981 notice of sale at public auction failed to contain a legal description of said property.
11. The 1979 and 1981 notices of sale at public auction failed to state that the sales were to be held at the 'County Courthouse'.
1. The Plaintiff has failed to prove that the contents of the 1981 notice of sale sent to the Defendants Kirk complied with IC 6-1.1-24-4.
2. Said property was not offered for sale for two consecutive years in violation of IC 6-1.1-24-6.
3. The 1981 notice of sale at public auction failed to contain the legal description of said property in violation of IC 6-1.1-24-2.
4. The 1979 and 1981 notices of sale at public auction failed to state that the sales were to be held at the 'County Courthouse' in violation of IC 6-1.1-24-2.
5. The Plaintiff has failed to prove that the statutority mandated procedure for the tax sale of said property was complied with.
6. Non-compliance with the statutority mandated tax sale procedure rendered the execution of the tax title deed to the Marion County Board of Commissioners, City of Indianapolis, ineffective to convey title to said property to the Board of Commissioners.
7. Since the Board of Commissioners acquired no title to said property, no interest in said property was subsequently quitclaimed by the Board to E.M. Ransburg.
8. Since Plaintiff has not proved that title to said property has passed to E.M. Ransburg, Plaintiff's action to quiet title in said property fails.
JUDGMENTPlaintiff having failed to carry their burden of proof Judgment is entered for the defendant."
Ransburg appeals and raises five issues which we have restated, for our consideration:
I. Whether the plaintiff in a quiet title action, who claims title from a tax deed, has the burden of proving the validity of all tax sale proceedings pursuant to IND.CODE 6-1.1-24-11 or whether the tax sale proceedings are presumed valid and the defendant delinquent former owners bear the burden of rebutting that presumption.
II. Whether the trial court erred in concluding I.C. 6-1.1-24-2, Public Notice of Tax Sale, requires the notice to contain the specific words "county courthouse".
III. Whether the trial court erred in concluding I.C. 6-1.1-24-2, Public Notice of Tax Sale, requires the notice to contain a legal description of the property.
IV. Whether the trial court erred in concluding the 1981 notice of tax sale did not comply with I.C....
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