149 S.E. 881 | W. Va. | 1929
This suit was instituted against R. L. Adkins, Jr., J. A. Logan and Ellis England, for the purpose of having a certain deed, executed by the Commissioner of School Lands to R. L. Adkins, Jr., set aside, and for the further purpose of permitting the plaintiffs to redeem the land so conveyed. The plaintiffs, Henry Asbury and W. T. Moore, claim that they were not served with process in the School Commissioners suit, although made parties thereto. On the hearing, the trial court held that Asbury was not served, that he was not a necessary party, and dismissed his bill of complaint. It is from this ruling that Asbury appeals.
J. A. Logan and Ellis England were owners in fee of a certain lot in the town of Dunbar in 1920. On September 30, 1920, England and wife transferred a half-interest in and to said lot to W. T. Moore. On March 24, 1923, J. A. Logan and wife conveyed a one-half undivided interest to Henry Asbury, and Asbury on April 5, 1923, conveyed his interest to W. T. Moore; and W. T. Moore, to secure the payment of the purchase money, represented by four promissory notes, executed a deed of trust on the entire lot of land to O. B. Bobbitt, trustee. The taxes for the year 1921, assessed in the names of Logan and England, were not paid, and the land became delinquent for taxes and sold to the State for taxes of 1921, on January 14, 1924. The chancery suit, instituted at the instance of the School Commissioner in 1925, styled State v. T. C. Hall and others, included this tract, which was sold to R. L. Adkins, Jr.
As to the question of whether or not the appellant here was served with process in the former suit, we are bound by the finding of fact of the lower court. The only question remaining is: Does the appellant have such an interest as entitles him to redeem? If so, he is a necessary party; otherwise, no.
In referring to Chapter 31, Code, this Court has held that statutes must be liberally construed in favor of persons entitled to redeem. Danser v. Johnsons,
"6. * * * the former owner of any such tract of land at the time of forfeiture thereof, or the person in whose name the same is forfeited, shall, if known, be made a party defendant in such suit, and all persons claiming title to or interest in any such lands, shall, also, as far as known, be made parties therein," etc.
"17. The former owner, his heirs, devisees or assigns of any real estate forfeited * * * to the state of West Virginia, may at any time during the pendency of the suit for the sale thereof, * * * file his petition therein," etc.
Did Asbury come within these provisions? The Commissioner of School Lands upon filing his suit for the sale of delinquent lands, including the lot here in question, acted on the theory that Asbury was a necessary party, and included him as a party defendant. But, as we have already adverted to, lack of service of process upon him made futile the act of making him a party to the suit. The manifest object of the statute is to afford all known claimants of real estate sought to be sold for the benefit of the school fund an opportunity of establishing any claims they have to the title of the land and give them the right of redemption. Preston v. Bennett,
The decree complained of is, therefore, reversed and the case remanded for further proceedings to be had therein, according to the principles herein enunciated.
Reversed.