To a petition for a rehearing by appellant—
JUDGE PRYORdelivered the following response:
Sections 14-17 of article 7, chapter 92, General Statutes,, can not control the decision of the question raised in this case. The sheriff or person making a sale of land for taxes, when there is no bidder at the amount of the taxes, is authorized by section 14 to buy the same in for the State, and the owner can reclaim within two years. The sheriff, by section 17, is required to make a report in writing to the county clerk within twenty days after the sale, showing when it was made and to whom, and for what price, giving; *622•a description of the land, which report shall be recorded by the clerk and indexed, &c.
In this case the land was purchased by the State, and afterwards sold as provided by the act of May 6, 1880, amending the revenue laws, and purchased by Grauman, who sold and conveyed it to the appellant. The appellee was then in possession, having acquired title by a regular •chairi from the original owner, and ■ on account of whose default the land was sold. Section 19 of the amended act, approved May 6, 1880, makes the deed to the purchase conclusive, except on certain conditions therein prescribed. Appellee was the owner of the lot at the time it was sold for the unpaid taxes, and, as the pleadings show, had no notice of the sale or the liability of the original owner for the tax. It is also averred that the lot had not been re-burned by the sheriff to the auditor as having been sold for the taxes, and had not been purchased by the State for taxes. Further, that the equity of redemption had not expired when the property was sold. Appellee also tendered the taxes due for 1875, ’76, ’77 and ’78, for which the property was alleged to have been sold.
Under the act of May 6, 1880, the agent of the auditor •can sell, after advertising the property for four weeks in .some newspaper, if any published,- or post notices in public places, if no newspaper, for the same length of time, to the •effect that so much of the land will be sold as may be neces.sary to discharge the taxes due thereon, or due from the -owner thereof at the time of sale. Now, it is averred that .appellee was the owner at the time of the sale, and invested with the title. This fact is not controverted, yet his land was sold for taxes in arrears and owing by some one else, without notice, and, if the averments in the answer are true-*623without the lot ever having been purchased by the State, or any return made by the sheriff of that fact.
This court can not take judicial notice of the records of •deeds or sales.' They must be pleaded, and, when pleaded, the petition must present a cause of action. We do not mean to decide that the allegation, if made that the sale had .been recorded, was notice to any subsequent purchaser, as it is not material to the inquiry in this case. What we mean to say is, that when the proceeding is not against the rightful owner, but against some one else for taxes due and unpaid while the latter owned the land, there must be some notice to the subsequent purchaser, and that a mere advertisement that the property will be sold for the default of the original owner is not such a notice as binds the purchaser in possession; nor is the deed ¡.made by the auditor conclu.sive of his rights, but, on the contrary, he must show a •compliance with the statute, showing the validity of the .assessments and the right of the auditor to sell. This is a proceeding to recover taxes that were past due, and not collected by reason of the failure of those in office in the county ■or city to collect the taxes as required by law, and by rea,son of their neglect the innocent purchaser is made to suffer, his land sold without notice, and his defense cut off by statutory provisions'that amount to a forfeiture of his estate. The burden was on the appellant to make out his case, and the cause having been submitted in the pleadings and the ■ demurrer to the response made overruled, the case was properly adjudged for the defendant. This was an action to remover the possession, and the State still having a lien, the tax claim can be enforced against the purchaser in possession. This judgment is not a bar to such a recovery. (City of Louisville v. Cochran, 81 Ky.)
Petition overruled.