Keller v. Wilson

•CHIBIT JUSTICIO HOLT

delivered the oeikton oe tiie oourt.

The appellant, Elizabeth Keller, was the owner in fee-simple of a lot in the city of Paducah, and of a life estate in an adjoining lot, with remainder to her children, who are also appellants. Both lots were sold for her city taxes by the city collector prior to June, 1878, and purchased by the city. Its charter provides that such a sale shall create a lien upon the property sold for the taxes, which may be enforced as any other lien debt by a suit in equity. June '29, 1878, the city brought its action for this purpose, Mrs. Keller and her children being made defendants. All of them were properly summoned. Two of the •children were then infants, but over fourteen years of age. The petition disclosed this fact. Upon the motion of the defendants the city was forced to elect against which lot it would proceed, and it elected to .prosecute the action against the lot in which the children were interested. April 14, 1879, a judgment was rendered without the infants being represented by either a statutory guardian or one ad litem, fixing the amount of the tax claim, declaring it to be a lien on the lot, and ordering its sale.

*353 It is urged that the lot in which the children were interested was thus made liable not only lor the taxes owing thereon, but for the other taxes of Mrs. Keller, and for which, in part, the other lot had been sold. The judgment, however, determined that the lot now in contest was liable for the tax, and if not void, and now beyond question, the parties affected by it are without remedy.

The city became the purchaser at the sale, and in 1880 it was conveyed to it by the court through its commissioner. It is insisted that if the judgment of sale was merely erroneous, that yet the purchase by the city should be set aside upon the ground that it had no power under its charter to make it. The charter provides that it may purchase property within or without the city. This should be construed to mean for governmental purposes; but in purchasing it for its taxes it was executing such a purpose, and in our opinion no valid distinction can be drawn between a purchase by the city at a sale for taxes under a levy by its collecting officer and under a decretal sale for a like purpose.

In 1883 the city sold and conveyed the property to one Bettie Wilson. She failing to pay for it, the city sued for the purchase money, obtained a decree of sale, it was sold, and Mrs. Wilson again became the purchaser, executing sale bond, for the price with the appellee, Iseman, as her surety. Failing to pay the sale bond, execution issued upon it, the lot was sold thereunder, and Iseman became the purchaser. It was conveyed to' him by the sheriff in 1886, and he is now in possession of it.

*354 This action was brought by Mrs. Keller and her children on October 19, 1886, to recover the property, or, if that can not be done, then its value. The pleadings do not require a consideration of a right to the latter relief. No basis is presented by them for it, and the only question is the right to have the judgment of sale in favor of the city, • and the proceedings thereunder, annulled.

' The old action by the city was redocketed in the fall of 1887, and a motion made by the appellants to set aside the judgment and annul all the proceedings, under it upon the ground that it was void. The two actions were consolidated, and upon hearing the lower' court refused the appellants any relief.

The judgment in favor of the city was not void. The fact that the infants were not represented by a guardian made it erroneous only. ■ No appeal has-ever- been taken from it. It fixed the rights of the parties, and is binding until vacated or reversed. (Simmons, &c., v. McKay, &c., 5 Bush, 25 .)

The youngest child of Mrs. Keller became of age in 1884. The right of an infant to show cause against a judgment in the court rendering it is limited by section 391 of our Civil Code to twelve months after his arrival at majority, and in this instance two years or more elapsed from the time when the youngest child became of age until this action was' brought, and three years before the motion to vacate the judgment in the old suit was made.

It is urged that the attorney for the city for the collection of back taxes agreed with the appellants, after the purchase by the city, that he would rent *355 out the property until the rents paid the tax claim, and then they were to have the property, and that he did rent it, and received at least enough rents to pay the taxes properly chargeable to this particular lot. Even if this claim were supported by competent evidence, or by testimony of a satisfactory character, yet the attorney could not thus bind the city in the absence of authority from it to do so, and the judgment is affirmed.