Leszinsky v. LeGrand , 119 Ky. 313 ( 1904 )

Opinion op the court by

JUDGE PAYNTER

Reversing.

This case involves the question as to the validity of a tax sale of the property in controversy. It was owned by Charles Dabelstein and J. O. Leszinsky. Leszinsky had by parol contract sold his interest in it to Dabelstein. Thns the matter stood until 1894, when it was assessed for taxation in the name of Leszinsky for the year of 1894. The taxes under the assessment were due in 1895. S. A. Pate was sheriff of Breckinridge county, and in 1898 he'sold it for the taxes of 1895, and procured one Frank Board to become the purchaser at the price of $3.08. After the expiration of Pate’s term as sheriff, Board assigned to Pate the certificate. Pate secured a deed from his successor in office and sold the land. Before the sale, Leszinsky became insane, and was in the asylum at the time the sale was made. Dabelstein was a non-resident, but his agent had reported the land to the assessor for assessment, but the assessor, having forgotten his name, made the assessment in the name of Leszinsky. Subsequently Pate sold the land to appellee. The sale is sought to be set aside on several grounds, but. we deem it unnecessary to state all of them, as one is sufficient to invalidate the sale.

The plaintiff averred that the sheriff failed1 to file the affidavit with the county clerk as required by section 4151,

KENTUCKY REPORTS. [Vol. 119 Leszinsky, &e. v. LeGrand. Kentucky Statutes, 1894, as amended May 12, 1897 (Acts 3897, p. 13, c. 11), -winch reads as follows: . . Provided, however, no levy or sale of real estate shall be valid and no fees for making same, or credit for taxes in sales of same shall be allowed sheriffs, until said sheriffs shall have made affidavit in writing and filing same with clerk of county court of county in which such lands are situated, showing that the persons from whom taxes are due and whose real estate is to be sold have no personal estate out of which said taxes can be made. And such affidavit shall be certified to the auditor, who shall in no case allow credit to sheriff for taxes on land sold and bought in for the State of Kentucky, until after such affidavit has been so certified to him.” The pleadings, in effect, admit that the affidavit required by this section was not'filed by the sheriff. The levy seems to have been indorsed before the act took effect, requiring the sheriff to file the affidavit. But the sale was not made for more than a year after the act had taken effect. It will be observed that this act declares invalid sales of real estate for taxes made in violation of it. It expressly says that no levy or sale shall be valid where such affidavit is not tiled. If the taxpayer had personal property at the time the sale was made, subject to the taxes, it was the duty of the sheriff to sell it to satisfy them. If he wanted to subject the land to the payment of the taxes, it was essential that the affidavit should be made. As the affidavit was not filed, the prima, fade effect given a tax deed by section 4030, Kentucky Statutes, 1894, was overcome. There are other reasons why the sale is invalid, not necessary here to be considered, in view of the conclusion we have reached.

The judgment is reversed for proceedings consistent with this opinion.