
    CASE 35. — ACTION BY JACOB LUNKENHEIMER AND OTHERS AGAINST F. WILDHARBER AND OTHERS, TO RECOVER LAND. —
    March 10.
    Wildharber, &c., v. Lunkenheimer, &c.
    Appeal from Henderson Circuit Court.
    J. W. .Heksen, Circuit Judge.
    Judgment for plaintiffs. Defendants appeal. —
    Reversed.
    1. Taxation — Tax Deeds — Action to Recover Land. — In ejectment ' against a tenant and his landlords, where the tenant denied plaintiffs.’ ownership and right of possession, .and alleged that Ms landlords held under a tax deed, and pleaded limitation, the landlords could rely upon such defenses without setting them up in their own answer, since the tenant’s possession inured'to their benefit.
    2. Same — Plea.—In ejectment against a purchaser at a tax sale, his denial of plaintiffs’ ownership and right of possession was insufficient to make am issue upon plaintiffs' title and '• place upon them the burden of proving their title; it being unnecessary for the purchaser to plead the evidence of his title.
    3. Same — Tax Deeds — Effect as Evidence — Statutes'—Retroactive Operation. — Ky. St.'1903, section 4030, providing that a tax deed shall he prima facie evidence of title and-of the'regularity of the sale and all prior proceedings, applies to. aU tax deeds, whether made before or after its enactment.
    4. Same. — Under Ky. St. 1903, section 4030, providing that .a. tax deed shall he prima facie evidence of title and of the regularity of the sale and the prior proceedings, defendant in an action to recover land which he held under a tax deed was not required to show that proper steps were taken to constitute a valid tax sale; his1 deed being prima facie evidence of title in him, and placing upon plaintiff the burden of overcoming the prima facie case thus made out.
    5. Statutes — Construction—Intention of Legislature. — A statute will not be- construed strictly, so as to defeat the purp'ose of the Legislature in enacting i-t. ■ .
    6. Trial — Direction of Verdict. — In enjectment against a purchaser at a tax sale, where there was no evidence warranting a verdict for plaintiff, the tax deed being sufficient on its face, and there being no evidence to overthrow the presumption of official regularity, the court should have instructed the jury peremptorily to find for defendant.
    THOS. E. WARD, DORSEY & STANLEY and MONTGOMERY MERRITT for appellant.
    POINTS AND AUTHORITIES.
    A deed made by a sheriff under a tax sale is prima facie evidence of the correctness of all preliminary steps taken priqr to the sale, and places the burden upon the taxpayer to show the contrary.
    CITATIONS.
    Husbands v. Polivick, 96 S. W. 825; Hughes v. Owens, 92 S. W. 595; Alexander v. Aud, 88 S. W., 1103; Metcalfe v. Comlth., &c., 66 S. W. 1100, 113 Ky., 751; Griffin v. Sparks, 70 S. W. 30, 24 Ky. Law Rep., 849; Shuck v. City Lebanon, 53 S. W. 655, 21 Ky. Law Rep., 970.
    CLAY & CLAY for appellees.
    QUESTIONS AND AUTHORITIES.
    1. Pleading. The petition of appellants, Handley and Lockett, asking that they be made .parties defendants, which was taken as their answer, is a waiver of any right they may have had to avail themselves of their co-defendanfs answer, which they did not adopt as their own. (Civil Code, 29.)
    2. Where one defendant does not adopt a plea of co-defendant, and does, not himself plead the defense made by his co-defendant, a trial on the merits is had, judgment rendered against the party pleading, and also against his co-defendants, and no complaint is made by the one who has pleaded, the defendants who have not pleaded cannot then come in, file a motion for a .new trial in their own names, and have reviewed in this court the proceedings upon the trial in the lower court on an issue not pleaded by them. (City of Covington v. Noland & Cot, 89 'S. W., 216; Meadors v. Brown, -16 Ky. Law Rep., 620.)
    
      3. When one voluntarily comes in by petition and has himself made a party defendant, claims the land in dispute, sets up his claim, ¡and this claim is denied by the plaintiffs,' the burden is upon him to prove that he has an interest in, or claim to the subject matter of the action, and to prove his title. (Meadors v. Brown, 16 Ky. Law Rep., 620.)
    4. (a) Section/ 4030 Kentucky Statutes is not retroactive, and has no application to a tax deed made in 1883, before the section was enacted. (Norris v. Russell, 5 Cal., 249; Keane v. Connovan, '21 Cal., 291; McPhail v. Burris, 42 Tex., 142.)
    (b) Under the law as it existed in 1883, the burden is upon the party relying on a tax deed to allege and prove that the essential statutory steps/ were taken. (Jones v. Miracle, 93 Ky , 639; Carlisle v. Cassady, 20 Ky. Law Rep., 562, 46 S. W., 490; Durrett v. Stewart, 88 Ky., 665; Cornish v. Three Porks Coal Co., 95 Ky., 273; Smith v. Ry.an, 88 Ky., 636.)
    Even if section 4030 Kentucky Statutes applies it does not relieve the tax claimant of the burden of pleading facts showing the statutory steps were taken. Only when this is done does the burden shift to the original owner. (Maguiar v. Henry, 84 Ky., 1)
   Opinion op the Court by

Judge Hobson

Reversing.

Frederick Lunkenheimer and August Brauns owned a tract of land in Henderson county. It was assessed for taxation in the years 1876, 1877, 1878, 1879, 1880, and, they failing to pay the taxes, the sheriff,on March 28,1881, sold the land for the taxes. Thomas E. Ward became the purchaser; and, the land not having been redeemed, on May 14, 1883, the sheriff executed to Ward a d’eed for it. Ward, by judicial proceedings, thereupon obtained possession of the land; and subsequently conveyed it to Henry Lockett and John P. Handley, who rented' it to F. Wildharber. While Wildharber was in possession as their tenant, appellees, who are the children and heirs at law of Fred-. erick Lunkenheimer and August Brauns, brought this suit’ on August 25, 1904, to recover the land, alleging in their petition'that they were the legal owners of the land-in fee simple and entitled to the possession of it. Wildharber filed an answer, in which he denied that the plaintiffs were the owners of the land or entitled to the possession of it; bnt he did not deny that they were the children and heirs at law of Frederick Lunkenheimer and Angnst Brauns, the former of whom died in the year 1885, the latter subsequent to the year 1900. They were both non-residents of the State. In a second paragraph he set up -the sheriff’s deed to Thomas E. Ward, and pleaded limitation. In this paragraph he alleged that the land was duly, regularly, and legally assessed for the taxes, and, that the taxes not having been paid, the land was sold by the sheriff after being duly advertised; that it was bought by Thomas E. Ward, and, not being redeemed, the sheriff made him a deed. The deed was filed with the answer. The plaintiffs by their reply denied that the land was duly, regularly, and legally assessed for the taxes, or that, the taxes not having been paid, the land was sold 'for the taxes after being duly advertised by the sheriff, or that Ward immediately took possession of the land or hád been in possession of it, except for a short time before the filing of the suit. Henry Lockett and John T. Handley filed their petition in the action, in ‘which they alleged that they were the owners of the land, and that the plaintiffs had no title -to it or interest in it. They alleged that they had bought it from Ward, who had conveyed it to- them, that they had made valuable improvements upon it, and .that they .and Ward had paid the taxes amounting to $820. The plaintiffs filed a reply controverting the petition of Lockett and Handley, which was taken as their -answer. In this condition of the pleadings the ease was called for trial. The court ruled the burden of proof in the action to be upon the defendants, to which they excepted. The proof was heard, and under the instructions of the •court the jury found for the plaintiffs. Handley and Lockett filed grounds for a new trial. Their motion was overruled and a hill of exceptions filed. Wildharher did not join in the motion for a new trial, but this appeal is prosecuted in the name of all three of the defendants. The reason that Wildharber did not file grounds for a new trial appears from the record to be that he was only a tenant, and, his interest in the land having expired, he had left the premises before the trial. It was- unnecessary that Lockett and Handley should repeat in their answer the matters contained in the answer of their tenant, Wildharber. They could rely upon every defense made in his answer without repeating these allegations in their answer. He being their tenant, his possession inured to their benefit. Newman on Pleading, section 439; Hearn vs. Lander, 11 Bush, 674.

It is earnestly insisted that the answer does not show that proper steps were taken- to constitute a valid tax sale, and that, therefore, the answer was in this respect bad under tire ruling laid down in Maguiar vs. Henry, 84 Ky. 1, 7 Ky. Law Rep. 695, 4 Am. St. Rep. 182. That case was decided under the act of 1880 (laws 1879-80, p. 209, ch. 1565, section 19), and was a suit by the purchaser of the land to obtain possession. This is a suit by the heirs at law of the owner of the land against the purchaser at the tax sale to oust him from possession 21 years after he,received his deed and took’ possession: of the property. The plaintiffs .brought in’effect an-action ofi ejectment,-, alleging that they were the owners of the land and entitled to the possession. The denial of these allegations was suf•ficient to .make-an issue upon.-the plaintiff’s title <and to put upon them the burden of showing their title to the land. It was unnecessary for the defendant to plead the evidence of his title1. He could give his title in evidence on the trial without pleading the-evidence of his title in his answer. Section 4030, Ky. Stats., 1903, is as follows: “In all suits and controversies involving the titles of lands claimed or held under the deed executed by the sheriff in pursuance of the sale for taxes, the deed shall be prima facie evidence of the regularity of the sale and of all prior proceedings and title in the person to whom the deed has been executed. ’ ’ This statute applies to all tax deeds whether made before or after its enactment. Alexander v. Aud., 121 Ky. 105, 88 S. W. 1103, 28 Ky. L. R. 69; Hughes v. Owens, 92 S. W. 595, 29 Ky. Law Rep. 140. The present statute is materially different from that before the court in the ease of Maguiar v. Henry. It was manifestly intended to do away with the old rule, and to obviate the necessity of the grantees setting out the steps required to be taken by the officers in the proceeding. The statute expressly dispenses with the proof of these steps, and it can serve no good purpose to cumber the record with a mass of allegations that need not be proved on the trial although traversed. Like other statutes, it must be liberally construed with a view to promote its purposes. Its evident purpose was to relieve the purchasers from the burden placed on them by the old rule. The statute should not be construed strictly so as to defeat the purpose of the Legislature in enacting it. It not only provides that the deed shall be prima facie evidence of the regularity of the sale and of all prior proceedings, but it also provides that it shall be prima facie evidence of title in the person to whom it has been executed. We must give some force to this provision of the statute, the manifest aim of which was to make the sheriff’s deed prima faoie evidence of title in the purchaser. As the title is the only thing in issue in this action, and as the sheriff’s deed is prima facie evidence of the purchaser’s title, when his deed was read in evidence-, he had made out a prima facie case, and the burden rested upon the plaintiffs to overcome the prima facie case which he had thus made out. Under this statute, a sheriff’s deed only differs from a deed executed by the party himself in this: That the sheriff’s deed is prima facie evidence, while the deed executed by the party himself is conclusive evidence until it is set aside; but subject to this distinction one deed when read in evidence is as effective to make out the defendants’ case as the other.

The instructions given by the court to the jury are not made part of the record, but under the evidence contained in the record the court should have instructed the jury peremptorily to find for the defendants ; there being no evidence in the record warranting a verdict for the plaintiffs, the deed being sufficient on its face, and there being no evidence to overthrow the presumption of official regularity..

Judgment reversed, and cause remanded for’a new trial.  