Smith v. Ryan

• Decision Date: 28 May 1889
• Citation: 88 Ky. 636,11 S.W. 647
• Parties: SMITH et al. v. RYAN et al.
• Court: Kentucky Court of Appeals

11 S.W. 647

88 Ky. 636

SMITH et al. v. RYAN et al.

Court of Appeals of Kentucky.

May 28, 1889

Appeal from circuit court, Breckenridge county; T. R. MCBEATH Judge.

"Not to be officially reported."

This was a suit by Mary J. Bates against Thomas Ryan. Plaintiff having died pending the litigation, the action was revived by her devisee, Fanny Smith, and her husband, and by amended pleading other parties were made defendants to the suit. There was a judgment for defendants, and plaintiffs appealed. The judgment was affirmed by this court on March 26, 1889 but a petition for rehearing was filed by appellants, and on May 25, 1889, the judgment was reversed,--the opinion previously delivered being extended and modified.

G. W Williams & Son, for appellants.

Thos. H. Hines and Reuben A. Miller, for appellees.

HOLT J.

August 20, 1877, the appellee John R. De Haven, as sheriff, sold two adjoining town lots belonging to Mary J. Bates, for the state taxes thereon for 1875 and 1876. The appellee Pate purchased them for $8.50, and the sheriff gave him the usual certificate, evidencing the purchase. The evidence does not clearly show what they were then worth, but certainly much more than this sum,--probably from $300 to $400. Not long after the expiration of the two years within which the former owner may under our law redeem his property when sold for taxes, Pate, by assignment on the back of his certificate of purchase, and which had been properly recorded, transferred his purchase to De Haven for $31.50. It is proven that the latter, as sheriff, had prior to this transfer made Pate a deed to the property, but it had never been recorded, and is not a part of this record. February 24, 1880, De Haven sold the property to the appellee Ryan for $220, and, Pate never having conveyed to De Haven, they both united in a deed to Ryan, and he went into possession of the property. In March 1881, Mary J. Bates brought this action against him in the form of ejectment, to recover it. During the pendency of the action in the lower court she died, having devised this property to the appellant Fannie Smith, and the suit was revived in her name. Amended pleadings were filed, making Pate and De Haven defendants. The action was transferred to the equity side of the docket by consent, and a judgment finally rendered dismissing the petition. It is now contended-- First, that the lower court should have rendered judgment for the appellant Smith upon the pleadings; and, if this be not so, then, secondly, it should have done so upon a consideration of the entire record and the merits of the cause. The real question is, did the tax-sale divest the testatrix of title? The claim that Pate had no interest in fact in the tax purchase, but really bought the property for the sheriff and by collusion with him, and that the appellee Ryan knew this, is not supported by any evidence. Indeed, it is affirmatively shown that there was not only no understanding between De Haven and Pate that the latter should make the purchase, but that the sheriff had no knowledge he intended to bid on it. The three successive sales appear to have been made in good faith. Undoubtedly this is true as to the purchase of Ryan, who since he became the owner has improved the property considerably. The pleadings of the appellant aver that the sheriff failed before he made the levy to demand payment of the taxes, or to tender either to her or her agent a receipt showing the taxable property, its value, and the tax due; that he did not advertise the sale as required by law; that there was no valid assessment; and that the records do not show whether the tax was for school purposes, or state or county...