Hatcher v. Howes

128 S.W. 335, 138 Ky. 464, 1910 Ky. LEXIS 93

• Court: Court of Appeals of Kentucky
• Decided: May 27, 1910
• Status: Published

Opinion

Opinion op the Court by

Judge Lassing

Affirming.

Appellants, claiming to be the owners of an undivided interest in a lot in Paintsville, Ky., brought suit in the Johnson circuit court for its sale and distribution of the proceeds among the respective owners. In the petition the appellee Howes is alleged to be the owner of the remaining eighth interest. He was made a party defendant. In his answer Howes claimed title to all of the lot under and by virtue of a tax sale made in 189.5. He denied that the plaintiff owned any interest whatever in the property. He further pleaded that since his purchase of said property he and his vendor had made valuable and lasting improvements thereon, and he asked, in the event his title be held defective in any particular, that he be adjudged a lien on the lot for the value of the improvements put thereon and the amount of taxes paid by him. In subsequent pleadings issue was joined on the question of the validity of the tax sale and the value of the improvements put upon the' property. Proof was taken, and, upon final submission for judgment, the court held that the plaintiffs were the owners of an undivided 13-48 interest in the said lot and the defendant Plowes the owner of the remaining 35-48 thereof. He further held that said lot was in lien to said Plowes in certain specified sums for taxes paid and improvements put thereon; that these sums were to be reduced by the reasonable value of the rent of said lot during the time he had it in possession. Judgment was entered in accordance with this finding. Plaintiff appeals from so much of the judgment as is in Howes’ favor, and Plowes prosecutes a • cross-appeal from that portion of the judgment awarding to the plaintiffs 13-48 of the lot.'

This property was owned by Thomas A. Hatcher, who died a resident' of Floyd county in .1850. He left surviving him eight children, part of whom were living at the time this land was sold for taxes, and those who had died left children surviving them. Little or no attention was paid to this property for many years following the death of James A. Hatcher, though it is shown that his son, James H., for a time at least, paid the taxes on it. In 1895 it was advertised and sold for the taxes due thereon for the years 1891, 1892, 1893, and 1894, and Mary L. Hatcher, wife of James PI. Hatcher, became the purchaser thereof for the sum of $12.38. Under this purchase, she held the property until in 1900, when she received a deed from- the then sheriff of Johnson county for it. Shortly thereafter she sold and conveyed it to II. S. Howes for $175, and he took possession of and has since held it. In 1907 this suit was brought by the plaintiffs, same being all of the heirs at law of James A. Hatcher, except his son James H. Hatcher, upon the theory that Mary L. Hatcher, being the wife of James H. Hatcher, who was one of the heirs, acted as agent for her husband in the purchase of the lot when sold for taxes in 1895, and that, therefore, no title passed, and that the deed which she received from the sheriff did not enlarge her husband’s interest in the property, nor have the effect of depriving the remaining heirs of their interest therein, 'and that the deed which she and her husband made to the appellee Howes conveyed to him only the undivided oneeiglxth interest in the property which was owned by James H. Hatcher as heir at law of his father.

While there is some question made as to the amount of taxes paid and the value of the improvements put upon the -property, the main question raised upon this appeal is the validity of this tax title. It is assailed upon many grounds. First, it is charged that it was not properly assessed, it being listed under the title of “Hatcher heirs;” second, that the proper steps were not taken by the sheriff prior to the date of sale to invest the purchaser with a good title; and, third, that no notice was given by the purchaser, Mary L. Hatcher, to three of the plaintiffs who were at that time married women, as required by section 4156, Ky. St. The objection that the property was not properly listed comes with poor grace from the owners. The law imposes upon all property owners the duty to list their property, either with the assessor or with the clerk, and when the property, as in this case, is an estate, it would be exacting almost the impossible to expect that it should he listed in the names of the owners. When the assessor lists it so as to-, enable the sheriff to identify it, the purpose of the law is satisfied. It is shown that for years the lot in question had been listed to “Hatcher heirs.” It is not shown that any other property was so listed, or that there were any other “Hatcher heirs” in Johnson county than those of James A. Hatcher. Hence, while the assessor did not give the best description of ownership possible, it was sufficient for all practical purposes, and under it the state and county were enabled to identify the property and collect' the taxes. If the appellants had desired that the ownership of this property be more definitely set out by the assessor, they should have taken enough interest during the years that they were permitting the' taxes to remain unpaid to advise him as to how it should be listed, to wit, in the name of the heirs of James A. Hatcher. In the absence of any assistance from the owners, all that can be expected or exacted from the assessing officer is that he shall describe the ownership as best he can. This seems to have been done, and, as it is not charged that the taxes for which this property was sold were chargeable to other property, we fail to see wherein any ground of complaint is afforded appellant because it was listed to “Hatcher heirs” rather than to the heirs of James A. Hatcher.

As to the second ground of complaint, it is shown that the sheriff, before advertising said property for sale, notified James IT. Hatcher in writing of the amount of taxes due, and that sale of the property would be made to satisfy same unless paid. None of the other heirs appear to have been known to the sheriff. James .H. Hatcher had been paying the taxes theretofore, and, when he refused to pay, the sheriff proceeded to advertise a sale. It appears that the sale was regular, and, if the pxirchaser thereunder complied with the statutory requirements, her title would be perfect; the time within which it might have been redeemed having expired. Following her purchase she gave no notice 'to any of the heirs at law of James A. Hatcher of her purchase. Of course, her husband, who was one of the heirs and owned an undivided eighth interest in the lot, had actual notice of her purchase. He not only knew that she had bought the lot, but also that she had taken possession of .it. It is not shown that any of the other joint owners of the lot upon whom notice could be served lived in Johnson county. It appears from the pleadings and proof that three of them, to wit, Isabella C. Morrell, Ella Reynolds, and Cordelia A. Porter, were at the date of the tax sale married women, and although it is not shown that the purchaser, Mary L. Hatcher, knew this- fact, or knew where they lived, it is conceded that she gave them no notice of her purchase, as provided by section 4156, Ky. St. On this'showing the chancellor held the tax sale void as to these three heirs, and adjudged that they jointly owned an undivided 13-48 of the lot, and that they wer’e chargeable with their proportionate share of the cost of taxes and improvements. This ruling was in strict conformity with the statutory provision in so far as it held the tax sale void as to them. This provision of the statute is mandatory, and the sale, at least in so far as the interests of the married women are concerned, is absolutely void, because the notice provided for was not given. The purchaser acquires by his purchase of the land of a married woman at tax sale only an equity, which he can perfect by giving to her and her husband, within the time fixed by section 4156, a notice to the.effect that he has bought the land from the sheriff at tax sale. The statute imposes upon such purchaser this duty, and only by complying with the provisions of this section of the statutes can he perfect or validate his purchase. When it is affirmatively pleaded and proven that such notice was not given within the time prescribed, the purchaser, is without remedy, and the sale is void. The chancellor correctly so held.

But it is insisted that, as the sale is void as to the married women, it is void alike to all, and that no interest whatever passed to the purchaser by virtue thereof. This, however, is not necessarily so, and a fair interpretation of the language of the statute does not require such, construction. The interests of the respective owners are severable and known, and, where the statute imposes upon the purchaser the performance of certain duties in order to perfect his title to certain interests in the land, a failure to discharge these duties, while necessarily operating to deprive him of title to such interests, should not be construed to defeat his title to those interests owned by persons to whom he owes no such duty in order to perfect his title thereto. The statute under consideration deals alone with the way in which the title of a married woman to real estate sold for taxes may be taken from her and vested in the purchaser. It has no bearing or effect where the owner is under no disability. When a contract is severable and a part capable of being carried out or performed, and part not, the valid portion thereof will be enforced, unless against public policy or in violation of some statute. In the case before us the appellee’s vendor purchased the entire lot, and, because she failed to give the notice required by section 4156, the sale is void as to certain 'interests therein, which interests amount to 13-48 of the whole. But this furnishes no good reason for invalidating the sale as to the remaining interests, and the trial court did not err in so holding. All claims for taxes paid by James H. Hatcher prior to the sale of the property for taxes in 1895 were rejected by the lower court; but, as the appellee is not complaining of this ruling, it is unnecessary to review this action of the court.

This brings up the question: Should the interests in the lot which did not pass under the tax sale be charged with their proportionate share of the costs of the improvements, etc.? This expense, for convenience, may be divided into two classes: First, those items which the tenant in charge voluntarily made; and, second, those which were imposed upon the property by operation of law, such as taxes, assessments for construction of pavements, sidewalks, etc. As to the first class, we are of opinion that the appellants are propérly chargeable therewith only so far as they were necessary to preserve and protect the property. If, in order to rent out the property, it became necessary to make certain improvements, such as fencing, the necessary outbuildings, etc., which improvements inured to the benefit of all of the owners of the lot and enhanced its value, then they should all share in the expense thereof. The evidence upon this point, while meager, is sufficient to authorize and support the finding of the chancellor to the effect that the appellants should bear their just proportion thereof. As to the latter class, the land itself was answerable therefor, and all of the owners are properly chargeable therewith. The chancellor fixed the reasonable rental value of the lot, while it was in the possession of appellee at $175, and he directed this stun deducted from the claims which he allowed appellee for taxes, improvements, etc.

Upon the whole case, we are satisfied that the conclusion which he reached as to the moneys expended by appellee in improvements upon the property does justice as between the parties. There is a charge in the pleadings that the sale of this property to Mary L. Hatcher was the result of a fraudulent agreement and understanding between the then sheriff, Howes, and James IT. Hatcher and his wife; but this allegation is wholly unsupported by the proof.

Being of opinion that the chancellor reached the right of this case, his judgment is affirmed.