Metcalfe v. Commonwealth Land & Lumber Co.'s Receiver.

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 lands 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 ar gument 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 deter mine 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 it may regularly and in an orderly manner adjudicate the controversy. Such adjudication can not affect either the title of others, not parties to the suit, nor can it affect liers 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

Metcalfe v. Commonwealth Land & Lumber Co.'s Receiver.

His sureties

litigants do

against the property. The sheriff is charged with these taxes, and is required to account for them. upon his bond are liable for them. If the 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 posses sion 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 leare 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 once 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 B. to take possession of a piece of property which was in

Metcalfe v. Commonwealth Land & Lumber Co.'s Receiver.

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 actnal 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, Rec., 138: "The appointment of a receiver over property which is subject to taxation in no manner affects or 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 or 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

Krinn v. Helmbold.

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 ap prove, to test any irregularities leading up to the sale, if there were any.

The judgment is reversed, and the cause remanded, with 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 Du Relle dissenting.

CASE 92-ACTION BY HELMBOLD AGAINST KRINN TO CONTEST AN ELECTION. JUNE 14.

Krinn v. Helmbold.

APPEAL FROM CAMPBELL CIRCUIT COURT.

JUDGMENT FOR PLAINTIFF AND DEFENDANT APPEALS. DISMISSED. ELECTION CONTEST-APPEAL-FAILURE TO FILE TRANSCRIPT IN TIME.

Held: Under the election law of 1900, providing that in election contests, either party may appeal from the judgment of the circuit court to the court of appeals by giving bond, "and by filing the record in the clerk's office of the court of appeals within thirty days after final judgment in the circuit court," the court of appeals has no jurisdiction unless the transcript is filed within the time prescribed.

H. M. BENTON AND SAM. E. ANDERSON, FOR APPELLANT.

The sole question involved in the motion to dismiss the ap peal, is whether the ordinary provisions of the code are ap

Krinn v. Helmbold.

plicable to the suing out of appeals, in the court of appeals, in election contest or are they repealed by implication.

Such repeals are not favored. One statute will not be regarded as repealing another by construction unless they are absolutely irreconcilable, or there is sufficient reason to conclude that the Legislature, so intended.

We contend that there is no irreconcilable difference in the election law, and in section 734 of the Civil Code. The only difference is, that the election law cuts down the time within which an appeal may be taken from the lower court.

The election law, relating to contests, does not pretend to be a complete and organic whole. It simply starts the machinery of the courts in motion, and a litigant may call into use any one or more of the code provisions. When once the machinery is started the whole of the machinery is at his ser vice, and the right to sue out an appeal in the court of appeals is a part of it.

We submit that no attempt has been made to make the appeal from the lower court the exclusive one. Adams Express Co. v. City of Lexington, 83 Ky., 657; Beatty v. Commonwealth, 91 Ky., 320.

C. J. & W. W. HELM, FOR APPELLEE.

The power of the Legislature to prescribe the terms on which appeals to the court of appeals may be taken in contested election cases, is so unquestionable and the intent of the Legislature so clear, that such shall be finally determined at the earliest moment consistent with a fair hearing, that we can not believe this court will place a construction on the act that will permit an appeal to be granted by the clerk of this court as in other cases, for if he may grant the appeal, he may do it any time within two years after the rendition of the judgment appealed from.

AUTHORITIES CITED.

Sec. 12, Election Law of Oct. 24, 1900; Constitution, sec. 110; 127, 153; Kentucky Statutes, sec. 1536, which has been superseded by sec. 12 of the Act of Oct. 24, 1900; Stone v. Berry, 96 Ky., 63-66.

OPINION OF THE COURT BY CHIEF JUSTICE GUFFY-DISMISSING.

This appeal is prosecuted from a judgment of the Campbell circuit court in a suit by August Helmbold against Wm. F. Krinn, it being brought by the appellee against