Metcalfe v. Commonwealth Land & Lumber Company's Receiver

Opinion of the court by JUDGE O’REAR Reversing. The Commonwealth Land & Lumber Company, an incorporated company, owned some real property in Harlan county, Ky. Its creditors brought an action against it in the Jefferson circuit court to sequestrate its property in satisfaction of their debts. In the proceeding the court appointed a receiver for the company’s property, and directed him to take charge of it. The receiver appointed an agent in Harlan county, who made contracts of renting for the particular piece of property in litigation in this — 754 — case. These contracts expired on the last of December', 1900. In the meantime he had made another contract with another party for 1901, beginning the 1st of January. Before the appointment of the receiver, this property is alleged to have been assessed, with other properties of the Commonwealth Land & Lumber Company in Harlan county, for State and county taxes for the year 1898. The owner hai'ing failed to pay the taxes after demand by the sheriff, the lot of land in dispute in this case was advertised to be sold, and was sold in December, 1898. Appellant became the purchaser at the amount of taxes due, to-wit, $251.95. The property sold and thus purchased is a lot of twenty-seven and one-half acres of land, lying within the limits of the corporation of Mt. Pleasant. There was no building upon the property. Appellant gave to ajipellee the notice prescribed by' statute, but no redemption was made of the property, and at the end of two years appellant caused the sheriff of Harlan county to execute to him a deed conveying to him the title of the Commonwealth Land <& Lumber Company. After the crop had been cultivated for 19(10, and had been gathered, the fencing-was permitted to get out of repair, much or most of it having fallen down, the property being- practically turned out into the commons. On the 1st of January, appellant, finding- no one in possession, took possession of the property, inclosed it with a fence, and began to cultivate it. The Jefferson chancery court issued a rule in the actions of the Kentucky National Bank against the Commonwealth Land & Lumber Company and of the Mechanics’ Trust Company, assignee of Falls City Bank against the Commonwealth Land & Lumber Company — these being the actions in which the receiver had been appointed — requiring appellant to show cause why he should not surrender the — 755 — possession of the lot in question to the receiver of the court and be punished otherwise for his contempt in ousting- the receiver of his possession. Appellant pleaded the assessment and levy of the taxes,, and his purchase of the property; the expiration of the redemption; his having-given the notice as required by the statute; the execution of the deed to him by the sheriff after.the expiration of the redemption; his having found the property not in the possession of any one; and his having- taken the possession under these circumstances without intent to dispossess any one, and without knowledge of the court’s claiming- the possession through its receiver. The question is, was the receiver of t-he court in such possession of the property as prevented its sale by the sheriff for the taxes assessed against it, and as prevented the purchaser at that sale from taking possession of it; after the right of possession had attached, without his first having obtained the permission of the Jefferson circuit court? The circuit court adjudged the purchaser in contempt, and required him to surrender the possession of the land, and he has appealed. By the statute the Commonwealth and county are given a superior lien upon all property within such county liable for taxes thereon. This lien is made paramount not only to other liens, but to all title and claims. By section 4154 of the Kentucky Statutes it is provided that if the taxes are not paid, and the land should be sold therefor, “if said lands purchased by individuals be not redeemed within the two years allowed for that purpose, the fee simple title shall at once vest in such individual.” Section 4080 of'the Statutes provides: “In all suits and controversies involving thé titles of land claimed or held under a deed executed by a sheriff, in pursuance of a sale for — 756 — taxes, the deed shall be prima facie evidence of the regularity of the sale and of‘all prior proceedings and title in person to -whom the deed has been executed.” Section 4152 of the Statutes provides: “The purchaser other than the State shall have the right of possession of the hands ■purchased by him at any time after the expiration of six months from the giving of the notice provided for in the next section.” That notice is alleged to have been given in this case. The allegation is not denied. Appellant’s argument is that, having the right of possession, and prima facie the fee simple title to the lot, he had. the right of an owner to possess himself of his own, so long as he could do so without committing a breach of the peace, or in this case, without committing some act which would be, and ought to be regarded as being, a contempt of the court in which the property was in litigation between others than the purchaser. Courts appoint receivers over property in litigation at the instance of one of the parties to the suit, generally upon allegations that the other party in possession is so using the property that it will be destroyed, materially impaired, or -removed beyond the jurisdiction of the court before the' court can finally determine' the question of the relative rights of the litigants. The court has no concern in the controversy other or further than to preserve the status of the thing in dispute until jt may regularly and in an orderly manner adjudicate the controversy. Such adjudication can not affect either 1he title of others, not parties to the suit, nor can it affect lier.s of lienors not parties. The court’s possession does not add to the title nor to the rights of the litigants in so far as third persons not parties are concerned. It must be equally manifest that the court’s possession can detract nothing from the lien of the State for taxes assessed — 757 — against the property. ’ The sheriff is charged with these taxes, and is required to account for them. His sureties upon his bond are liable for them. If the litigants do not provide for their' payment, there is no provision of law under which the sheriff may protect himself against the payment of these taxes to the State and to the county except for him to advertise and sell the property. If he has the right to advertise and sell, the person who bids for it has the right to bid and if his bid is accepted by the sheriff, necessarily he obtains all the right under the bid that the statutes intend to give. If the proceedings are regular, such purchaser acquires, in the language of the statute, the fee simple title to the property. The question then arises, how may he obtain possession of that which is his own? If another is withholding the possession from him, he is not at liberty to use force in gaining-the possession, but he must apply to the courts having jurisdiction. In the event that the possession is in the hands of a receiver of the court, it is the rule that he must apply to the court appointing the receiver for leave-to institute an appropriate action against the receiver to recover the possession. If the possession is in another than the receiver of the court, then he may at on’ce sue in the court having jurisdiction of the subject-matter. If no' one is in the possession, then manifestly he has the-right to possess himself of his own. He then needs neither permission to sue, nor the aid of the suit. An order directing the receiver to take possession of property is not equivalent to actual possession. For example, the property may in point of fact be in the actual, adverse possession of a stranger to the litigation. An order directing the receiver of a court in a litigation 'between A. and lito take possession of a piece of property which was in. — 758 — the possession of C., C. not being a party to the record, would be void as to C. It must be obvious that the receiver, notwithstanding the order, would' not be in possession of the property. It is equally clear that, if no one is in possession of the property, an order directing the receiver to take possession does not of itself invest him with the possession. He must actually possess himself of it. This he may do in person or by tenants or agents. He may likewise dispossess himself by abandoning it. In this case we conclude that the receiver was not in the actual possession of the lot at the time that, appellant entered upon it. ■ Therefore appellant was not in contempt of the Louisville chancery court in that matter. It. is said in High, Ree., 138: “The appointment oí a receiver over property which is subject to taxation in no manner affects of impairs a lien upon the property for taxes.” It is the duty of the owner to pay the taxes when due; and if the disputants in the litigation, each claiming to be the owner or entitled to the property, should care to preserve it from sequestration for the taxes due upon it, they should see to it that they are paid. Whatever judgment the court may render in the premises would be subordinate to the right of the Commonwealth to collect therefrom its taxes. It can serve no purpose of public policy for the court, because of the supposed involvement of its dignity, to aid taxpayers in avoiding or delaying the payment of those dues owing by them, and necessary for the carrying on of government. As there was nothing in the record to show but what the taxes had been regularly assessed in this case, and all steps antecedent to the sale were in strict conformity to the statute, appellant’s deed importing prima facie a compliance with the statutes by the assessing and collecting officers, the court should not have — 759 — required appellant to surrender the possession of the property in dispute. It should have left the receiver to such action as was afforded him by law in the courts of the-county where the property was situated, as the parties to the litigation may care to institute, and the court may approve, to test any irregularities leading up to. the sale, if there were any. The judgment is reversed, and the cause remanded, with1 instructions to dismiss- the rule- against appellant, and to restore to him the possession of the lot in controversy, and for such other proceedings as may be necessary, not inconsistent herewith Whole court sitting. Judge DuRelle dissenting.