Stamps v. Frost

• Court: Kentucky Court of Appeals
• Writing for the Court: MILLER, J.
• Citation: Stamps v. Frost, 179 Ky. 418, 200 S. W. 609 (Ky. Ct. App. 1918)
• Decision Date: 22 February 1918
• Parties: STAMPS ET AL. v. FROST ET AL.

200 S.W. 609

179 Ky. 418

STAMPS ET AL. v. FROST ET AL.

Court of Appeals of Kentucky.

February 22, 1918

Appeal from Circuit Court, Allen County.

Ejectment by P. T. Stamps and others against Asbury Frost and others. Judgment dismissing the petition, and plaintiffs appeal. Affirmed.

Bradburn & Basham, of Bowling Green, for appellants.

Gilliam & Gilliam and Oliver & Dixon, all of Scottsville, for appellees.

MILLER J.

At the time of his death, which occurred many years ago, Abraham Wygal owned two tracts of land in Allen county, one containing 94 acres, bought from Joseph Frost in 1853, and the other containing 47 acres, bought from Jeddiah Frost in 1856. Abraham Wygal died intestate, leaving his widow Elizabeth Wygal, surviving him; and as they had no children the land descended to the heirs of the two brothers and four sisters of Abraham, subject to the rights of the widow Elizabeth. As the property was then worth less than $1,000 no homestead or dower was set aside to the widow, but she occupied the land and paid the taxes thereon until her death in 1897. At that time the land was worth not exceeding $200 and it continued to decrease in value for want of care. It appears that no one occupied it for several years after the death of the widow. It is claimed that Tom Wygal, a brother of Abraham, listed the property for taxation in the name of the "Wygal heirs" for perhaps 2 years after the widow's death, but there is no satisfactory proof of that fact. However, J. C. Wygal, a son of Tom Wygal, testified that he rented out portions of the farm and collected the rents for several years after the death of the widow. In 1902 the land was listed for taxation, and the tax, amounting to $3.30, not having been paid, J. C. Wygal became the purchaser of the two tracts at the sheriff's sale in August, 1903, for $5.30, the amount of the tax and the costs thereon; and by a deed dated December 28, 1905, the sheriff conveyed the land to J. C. Wygal pursuant to the sale.

J. C. Wygal took possession of the land, claiming it as his own, and sold it to A. W. Duke on December 14, 1907, for $225. On May 6, 1910, Duke sold the land to the defendant Asbury Frost for $350, and Frost in turn executed oil leases to the defendants the White Plains Oil & Gas Company and the Ocala Oil Company, in March, 1913. The lessees have greatly improved the property, and oil has been produced therefrom in such large quantities that the property is now estimated to be worth from $125,000 to $150,000. On June 29, 1916, the appellant P. T. Stamps and 33 other heirs at law of Abraham Wygal brought this action in ejectment against Asbury Frost, his lessees the oil companies, and 12 heirs of Abraham Wygal who would not join as plaintiffs, seeking to recover the two tracts of land, and $30,000, the value of the oil taken therefrom.

The answer of Frost traversed the allegations of the petition and set up the tax deed of 1905 to J. C. Wygal, his sale to Duke, and Duke's sale to Frost, and claimed to have been in the adverse possession of the land thereunder for more than 15 years before the commencement of this action; and for the purpose of quieting his title he made his answer a counterclaim against the plaintiffs. Frost further alleged that he had put improvements upon the premises of the value of $370, and that the suit had been instigated by his cotenant J. C. Wygal, who was really interested with the plaintiffs in a recovery. The oil companies made similar answers showing Frost's title, their leases, the improvements made thereon; and it is clearly shown, if not conceded, that they procured the leases for valuable considerations, in good faith, and without any notice of appellants' claim, except such as may have been imputed to them by law. They claimed liens for their improvements in case of ejectment. By reason of these claims for liens the case was transferred to equity, and there tried by the chancellor.

The plaintiffs contend that the sheriff's deed to J. C. Wygal passed no title to him for two reasons: (1) In making the purchase he was acting for his cotenants as well as for himself, and had in his hands, at the time, more than enough rents collected from these lands than was necessary to pay the taxes; and (2) the sheriff's deed was void because he sold both tracts when it was necessary to sell only one tract to pay the taxes.

The chancellor dismissed the petition, and the plaintiffs appeal.

The defense of ownership by adverse possession for a period of 15 years has not been sustained by the proof, and has been practically abandoned in the briefs. This must be so, since the earliest date at which J. C. Wygal could possibly claim an adverse holding was August, 1903, when he bought at the sheriff's tax sale, and that was less than 13 years before this action was instituted. And if the time should be calculated from the date of his deed in 1905 (a question not decided), the period of his adverse holding would be 2 years shorter.

Neither do we think the sheriff's deed was void. Section 4030 of the Kentucky Statutes reads as follows:

"In all suits and controversies involving the titles of lands claimed or held under the deed executed by the sheriff in pursuance of the sale for taxes, the deed shall be prima facie evidence of the regularity of the sale and of all prior proceedings and title in the person to whom the deed has been executed."

Section 3760 of the Kentucky Statutes further provides:

"Unless in a direct proceeding against himself or his sureties, no fact officially stated by an officer in respect of a matter about which he is by law required to make a statement, in writing, either in the form of a certificate, return or otherwise, shall be called in question, except upon the allegation of fraud in the party benefited thereby, or mistake on the part of the officer."

Under these sections of the statutes the burden was upon the plaintiffs to show the invalidity of the deed; otherwise, being in due form, it must stand. Moseley v. Hamilton, 136 Ky. 680, 124 S.W. 894; Anderson v. Daugherty, 169 Ky. 308, 183 S.W. 545. No attempt was made by extraneous proof to rebut the prima facie title made by the sheriff's deed; and, the deed being in due form and otherwise sufficient, it must stand as written, it being presumed that the sheriff took every preliminary step that was necessary to convey a good title.

The claim that the sheriff sold both tracts when it was necessary to sell only one tract to pay the tax is made only in the brief, and is not supported by the record. The deed purports to convey "one parcel or tract of land lying and being in magisterial district No. 1, Allen county, Ky.," containing 100 acres, and nothing appears to contradict that recital. The sheriff's deed, therefore, invested J. C. Wygal with title, and the only remaining question is, What were the rights of the respective parties under the deed? In what capacity did he hold the land thus bought? And how are the rights of subsequent bona fide purchasers to be affected by plaintiffs' belated effort to enforce their rights as cotenants with J. C. Wygal?

It is insisted J. C. Wygal held the land in trust for his cotenants, and that the trust is emphasized by the fact that he then had in his hands more than enough rents collected from these lands than was necessary to pay the taxes. In 7 R.C.L. 863, the rule is stated as follows:

"The authorities are uniform in affirming the general rule that one joint tenant who acquires a tax title to the common property cannot assert such title against his co-owners except as a basis for contribution to repay him for his expenditure. His purchase simply amounts to a payment of the taxes or a redemption from the sale, and gives him no right except to compel contribution. He derives no exclusive benefit from the purchase, since that inures to the benefit of all the cotenants, if they elect to avail

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