Morton v. Waring's Heirs , 57 Ky. 72 ( 1857 )

Judge Simpson

delivered the opinion of the court.

This action was brought by Waring’s heirs against appellants to recover a tract of land patented in the name of Peter F. Archer, who was a non-resident, and w’hich had been sold by the register of the land office for taxes due thereon, and purchased by John U. Waring in 1812, that being the time the sale was made.

The appellants claim the land by deeds of conveyance from the heirs, or some of the heirs, of the patentee; and contest the validity of Waring’s purchase, and the deed made to him in pursuance thereof in 1828, by a subsequent register of the land office.

On the trial in the circuit court the plaintiffs read a patent to Archer, for one thousand acres of land, and the register’s deed to their ancestor, John U. Waring, for eight hundred and seventy-one acres thereof, which deed and patent the defendants admitted embraced the land in contest, and the plaintiffs having then announced that they had finished their evidence, the defendants moved the court to instruct the jury to find as in the case of a non-suit, which motion was overruled, and it is now contended that the court erred in overruling that motion.

The ground upon which it is insisted that the motion should have been sustained was the failure of the plaintiffs to prove they were the heirs at law of John U. Waring, deceased, and also in failing to show that the defendants were in the possession of the land sued for.

The plaintiffs having however alleged, in their petition, that they were his heirs, and having sued in that character and the fact that they were his heirs not having been denied by the defendants in their answer, the allegation had to be taken as true, and it was unnecessary to prove it. The defendants had to deny each allegation of the petition, which they intended to controvert, or any knowledge or information thereof sufficient to form a belief. (Code of Practice, section 125.) ' And, as it subsequently appeared in evidence, during the progress of the trial, that the defendants were in the possession of the land in contest at the commencement of the action, the defect in the plaintiffs testimony, on that point, was thus supplied, and any error in the previous decision of the court thereby corrected. So also with respect to the objection made to the copy of the patent read in evidence on the trial by the plaintiffs; if that copy was not properly certified the defect was cured by the copy of the same patent which was afterwards given in evidence by the defendants themselves.

S. The recitals in a deed, made by the Register of the Land Office that the requisitions of the law,to authorize him to sell, had been complied with, are evidence of that fact, but they are not evidence of other facts, as that the land sold was part of a patent for a number of acres, which did not appear in the entry listing the landfortaxation, nor certificate of purchase issued by the Register. 3. It is the province of the jury to decide the fact whether a deed does or does not embrace a particular piece of land.

It is also contended, that the instruction to the jury, given at the instance of the plaintiffs, to the effect the law presumed that all the statements and recitals in the register’s deed to Waring were true, was improper and erroneous. The doctrine is well settled that the statements in a register’s deed, showing that the requisitions of the law in relation to sales for taxes made by him have been complied with, are evidence of that fact, and to that extent therefore the instruction was unobjectionable; but the deed recites the additional fact, that the eight hundred and and seventy-one acres of land purchased by Waring was a part of the one thousand acres patented to Archer. That fact did not appear in the entry listing the land for taxation, nor by the certificate of purchase which was issued by the register, nor was its recital essential to the validity of the deed, nor was it one which the register could be presumed to know, and consequently its recital in the deed was not evidence of its truth. It was a matter for the jury to determine, and which they might have presumed to be the fact from the circumstance which was proved, that one hundred and twenty-nine acres of the one thousand acres contained in the patent'had been previously sold and conveyed to William Noel by the patentee.

But as it was a fact for the jury to determine and one which the court had no right to assume, the fifth and eighth instructions, given at the instance of the plaintiffs, by which the jury were told that if the land in contest was embraced in the patent to Archer the title to it passed to Waring by the register’s sale and deed, were also misleading and erroneous. Whether the land included in the patent, and the land purchased by Waring at the register’s sale, was the same land, was a matter that ought to have been referred to the jury for their decision; and unless it was the same the title to it did not pass to Waring by the register’s deed.

4. Although the laws did not provide for the appointment of a deputy Register of the Land Office, yet if an individual was employed as such in the office,when a sale was madeof land for taxes belonging to anon-resident, and became a purchaser, ¡¡it devolved on such a purchaser to show that his purchase was fair in every respect, and founded upon a full & adequate consideration.— One dollar thirty-four cents for SOOacres of land was not an adequate consideration.

It appeared, on the trial, that Waring was acting as a deputy in the office of the register of the land office, at the time he made the purchase of the land in contest, and the principal question in this case is, to what extent is the validity of his purchase, affected by that circumstance.?

To obviate any objection that might be made on this ground, to the legality of his purchase, it is contended that the law did not authorize the register to appoint a deputy, and consequently that Waring cannot be regarded as occupying that position when he made the purchase. But there are two obvious answers to this argument. First. He was in fact acting as the deputy of the register at the time, and would be thereby subjected to the same disabilities that a legal deputy would labor under. And in the second place, the duties of the register of the land office being merely ministerial, he could perform them by deputy, and had a right to appoint and employ one for that purpose, although the power to do so was not conferred on him by any express statutory provision This court has heretofore decided this point in the same way, and the decision seems to be sustained by well established principles of the law on the same subject. (Sampson vs. Overton, 4 Bibb, 409.)

How far then is the validity of Waring’s purchase affected by the fact that he was the deputy of the register, at the time the latter sold the land for the taxes due thereon ? The statute expressly prohibits a deputy sheriff from purchasing at a sale of land for taxes, made by his principal, and inasmuch as the statute provides that the register shall sell in the same manner and under the like regulations, as resident’s. lands are directed to be sold by the sheriff, it is insisted that the statutory prohibition applies to a deputy register as well as to a deputy sheriff. On the other side, it is contended that the requisition of the statute is confined to the mode in which the sale is to be made by the register, and that by prescribing the regulations under which the sale is to be made the language of the statute cannot by any reasonable construction be made to designate the persons who may or may not purchase at the sale.

By a liberal construction of the statute the prohibition might be regarded as applying to a deputy register, as well as to a deputy sheriff, and the evil intended to be guarded against would seem to require that such a construction should be given to it. But conceding that a deputy register is not embraced by the statute, still it would be against the policy of the law to permit him to purchase at sales made by his principal, and although his purchase might not, for that reason alone, be deemed absolutely void, yet like all purchases made by persons whose positions confer on them advantages which others do not possess, it can only be sustained by its appearing to be, in every respect, fair, free from all'suspicion, and made for a full and adequate consideration. In this instance the price paid for eight hundred and seventy-one acres of land was one dollar and thirty-four cents, not the then value of one acre of the land embraced by the purchase. This great inadequacy of consideration would not, of itself, render the sale and purchase void or fraudulent in the hands of an ordinary purchaser, but here the purchaser, on account of the position he occupied,, was, according to the well settled doctrine of the law, only permitted to buy on the condition that he paid a full and fair price for the land purchased by him. The law did not allow him to use his office for the purposes of speculation, or as a means of obtaining an unreasonable and unconscientious advantage in the purchase of the lands of non-residents. He may not have been absolutely prohibited from purchasing, but the policy of the law required that any purchase he made should be subjected to the closest scrutiny, and condemned as illegal, unless it was fair in every respect, and founded upon a full and adequate consideration.

It was this principle of public policy which induced the legislature to prohibit deputy sheriffs from purchasing at sales made by their principal, intending thereby more effectually to guard against the evil, the suppression of which was contemplated by the law, by prohibiting such purchases absolutely, and not regarding them as valid under any circumstances.

The purchase made by Waring, when tested by these principles, was wholly invalid, and the court should so have instructed the jury, provided they beleived that Waring, at the time he made the purchase, was acting as a deputy of the register of the land office.

Wherefore, the judgment is reversed, and the cause remanded for a new trial and further proceedings consistent with this opinion.