Gresham v. Montgomery

10 F. Cas. 1199

• Court: U.S. Circuit Court for the District of Kentucky
• Decided: April 15, 1881
• Status: Published

Opinion

BARR, District Judge.

This case is submitted on plaintiff’s demurrer to first, second, and third paragraphs of defendant’s answer,- and defendant’s demurrer to second paragraph of plaintiff’s reply. The first paragraph of the amended answer is not in itself a good defense to plaintiff’s recovery if the statements thereof are true. The paragraphing is evidently a mistake, and I presume paragraphs Nos. 1 and 2 should be considered as one paragraph. This paragraph sets up an assessment of taxes for state revenue, and also to pay expenses of collecting railroad tax, a levy of the land assessed, and a sale by the sheriff and a purchase thereunder .by defendant’s grantor. These taxes were levied for the years 1ST2 and 1S73. It is quite clear that the sheriff has no authority to sell this land for the taxes levied for the year 1872. It is equally clear that the county court of Grayson had no right to levy as part of the general levy of taxes the five cents and ten cents upon $100 worth of property to cover the expense of collecting the railroad tax. This defect is fatal to both of these levies and to the sale made by the sheriff. The assessment is the basis of all subsequent proceedings. This is true whether the tax be against the owner with a lien on the property taxed, or be against the property itself. Under the Kentucky law the tax is against the owner with a lien on the property taxed, and the right to levy on and sell other property of the owner to pay the tax. This makes it necessary to have the owner correctly described; and I am, therefore, inclined to the opinion that these assessments are fatally defective in being against ‘Henry Haines as agent of Mary Gresham,’ instead of being against Mary D. Gresham. I will not decide the point, as it is unnecessary.

The third paragraph, which we are considering as the second paragraph of the amended answer, sets out the assessment as above stated, and a levy of railroad tax for the years 1872 and 1873, and a sale to pay those taxes. I am inclined to the opinion that the charter, as amended in 1808, of the E. & P. R. K. Oo. gave the right to levy on and sell real estate to pay these taxes. See section 12, amended charter, approved February 24, 1SGS. It is quite clear from the allegations of the amended answer, taken together, that the sheriff united all the taxes (state, county, and railroad) and made one sale, and that Grayson became at that one sale the purchaser of the entire tract. It is true the defendant has pleaded his purchases in separate paragraphs, .as if there were two sales, one for the railroad tax, the other for the state and county taxes, but the facts alleged show there was really only one sale. If we apply the same rule to this sale, as if the sale had been made under fi. fas., it would be void, and certainly a tax sale should not be less-strict.

The demurrer to the first, second, and third paragraphs of defendant’s answer is sustained, and defendant’s demurrer to second paragraph of plaintiff’s reply is overruled.