138 F. 476 | U.S. Circuit Court for the District of Northern West Virginia | 1905
John H. Kelley and Clara V. Kelley,, on March 29, 1898, by deed which was admitted to record April 2, 1898, conveyed to plaintiff, Barnes, a citizen of Ohio, “one-sixteenth part of all oil and gas and other mineral substances in and under” two parcels of 69% and 2% acres of land, situate in Ritchiecounty, this state, fully described in the deed by metes and bounds,, for the consideration expressed of $2,000 cash. By deed of September 21, 1898, recorded September 24, 1898, Barnes conveyed a half of this, or V82 interest in all, to Mallory Bros., but they subsequently by deed dated March 29, 1903, reconveyed back this interest to Barnes. The surface and remaining 15/ia undivided interest of the “oil, gas, and other mineral substances” remained vested in Mrs. Kelley. On the landbooks of-Ritchie county, Mrs. Kelley, for the year 1898, was assessed with these two tracts separately as 69% acres and 2% acres in fee, as situate on “Wts of Bond Creek,”' northeast 9 miles from courthouse, valued each at $6.50 per acre, and a total valuation of $425 for the 69% acres, instead of $451.75, the true total at that rate, and for the 2%-acre tract of $15, instead of $16.25, the true valuation at that rate. She was assessed for state purposes on the 69% acres at the rate of 25 cents on the $100,. the sum of $1.13, the full amount due on the true valuation, 6% cents more than due on the valuation given; 45 cents for state school purposes, at a rate of 10 cents, the correct amount on the-
Casting aside all minor and technical objections, the grounds set forth and insisted upon as the basis for this relief may be reduced to three: First. Because of errors and variances apparent on the face of the tax record. Second. Because the whole property, including the one-sixteenth undivided interest in the “oil, gas, and other mineral substances” sold, was, for the year in question — 1899—assessed to Mrs. Kelley, and all taxes due thereon were paid by her. Third. Because the assessment of the one-sixteenth undivided interest in the “oil, gas, and other mineral substances” was wholly unauthorized by law, and therefore void, and, in consequence, no sale could be made thereof, and no title thereto secured thereby.
Taking up the first ground, it may be noted that the following objections may be urged to the tax record: (a) The description given in the assessment as “1-16 oil, &c., reserve,” was wholly misleading. Barnes had not “reserved” any such interest in 72 acres, or, so far as shown, in any other tract. He had sold no land then in which to “reserve” anything, (b) The assessment of such interest in 72 acres was misleading. He never had owned such interest in a single tract of 72 acres, but had purchased said interest in two distinct and separate tracts of 69# acres and 2# acres, which had theretofore been, and were that year, assessed as separate tracts tc Mrs. Kelley; and he had made no request for, and had no knowledge of, any consolidation, (c) The assessment to him of a one-sixteenth interest was erroneous and misleading, for on the 1st day of April, 1899, the assessment date, he'had no one-sixteenth interest in a 72-acre tract, nor in the 69# and 2# acre tracts, which could be consolidated into such. He had sold one-half of a sixteenth interest in the parcels in September, 1898, to Mallory Bros, by deed which had been duly recorded, and knowledge of, by statute, was expressly required to be taken by the assessment officers. It is insisted that Barnes had right to presume that officers would discharge their duty in this behalf, and that, if he was assessable at all upon an undivided interest by the action of the assessment officers, he would be so assessed upon the true interest owned by him as disclosed by the record, and not upon a wholly different interest, (d) Both the delinquent and sale returns vary wholly from the assessment. These returns show Barnes to be returned delinquent
There would be no difficulty in this matter had this tax sale and conveyance been made prior to the year 1882, but on the 24th of March of that year (chapter 130, p. 387, Acts 1882) the Legislature enacted what is now section 25 of chapter 31 of the Code of West Virginia of 1899, making sweeping changes in the law as then existing. The purpose and object of this section is very clear. It manifestly was designed, as Brannon, J., expresses it in Winning v. Eakin, 44 W. Va. 19, 28 S. E. 757, “to render these tax sales efficient to collect delinquent taxes, and to confer upon the purchaser a substance, and not a shadow.” Changing the former law as contained in chapter 117, p. 308, Acts 1872-73, which provided a tax deed should not be set aside except for irregularity apparent on the face of the proceedings, and of character such as “materially to prejudice the rights of the owner whose real estate is sold,” it enacted such tax deed should not be set aside unless the “irregularity appear on the face of such proceedings of record in the office of the clerk of the county court, and be such as materially to prejudice and mislead the owner of the real estate so sold, as to what portion of his real estate was sold, and when and for what years it was sold, or the name of the purchaser thereof; and not then, unless it be clearly proved to the court or jury trying the case, that but for such irregularity, the former owner- of such real estate would have redeemed the same.” Not content with this, it proceeds at great length to exclude in detail the consideration of almost every such material and prejudicial irregularity that could be conceived of that might possibly come within the scope of the already very restricted exception. For example:
“No irregularity, error or mistake in the delinquent list, or the return thereof, or in the affidavit thereto, or in the list of sales filed with the clerk of the county court, or in the affidavit thereto, or in the recordation of such list or affidavit or as to the manner of laying off any real estate so sold, or in the plat, description or report thereof, made by the surveyor, or other person,” shall invalidate the sale and deed. Again: “But no sale or deed of any such real estate under the provisions of this chapter shall be set aside, or in any manner effected by reason of the failure of any officer mentioned in this chapter to do or perform any act or duty herein required to be done or performed by him after such sale is made, or by the illegal or defective performance or attempt at the performance of any such act or duty after such sale, or by reason of the conveyance by the deed hereinbefore mentioned and prescribed, of a less quantity of real estate than that mentioned in the list of sales made out and returned as provided in the twelfth, thirteenth and four*481 teenth sections of this, chapter, if the real estate so conveyed by such deed, be in fact, the same which was sold as delinquent.”
The wisdom, not to say the honesty, of such legislation, may well he doubted. When the people elect men to offices strenuously sought for by them, require them to take oaths properly to perform their duties, they may reasonably expect them to perform such duties honestly, legally, and accurately. If they do not by reason of either negligence or incompetency, they ought to be either made to suffer for the one or be removed for the other. This sweeping con-donation and practical legalization of their illegal negligent acts, their criminal carelessness in fact, cannot be justified by saying the state and county must be secured in their revenue, a considerable part of which is collected for the very purpose of paying these officers’ salaries; and this is especially so when the gross carelessness and illegal actions tend to involve taxpayers living miles away, frequently in other counties and other states, in a penalty loss, often of thousands of dollars of property, because the state would otherwise lose, or be delayed in the collection of, a few paltry cents of its revenue. To say that these sworn officers can perform their duties erroneously, irregularly, negligently, corruptly, illegally, and yet the citizen shall suffer all the consequences of this conduct on the part of the state’s agents to the extent of the loss of his property, sounds more like practical confiscation than taking property by “due process of law.” The courts have to enforce such legislation, but they are not restrained from expressing their condemnation of it, and in equity may construe it strictly under the well-settled principle that equity abhors penalties.
The Supreme Court of Appeals of West Virginia has gone a long way in upholding this statute in its broadest scope. They have held in State v. McEldowney, 47 S. E. 650, that the return of the delinquent list to a term other than the one required by law is cured by sale under this statute, and that these curative provisions apply to purchases by the state itself at tax sales; expressly overruling as to both points their prior decision in McGhee v. Sampselle, 47 W. Va. 352, 34 S. E. 815. Thus the state itself is to be permitted to enforce this penalty against the private citizen arising from the misconduct of its own agents or officers.
Again, in Homage v. Imboden, 49 S. E. 1036, decided in February last, they hold failure to make out and swear to a list of land delinquent by the 1st of June, as required by section 18 of chapter 30 of the Code of 1899, failure to post a list of delinquent lands as required by section 18 of the same chapter, failure to present the delinquent list to the term of court required by section 21, the unwarranted action of the court upon these lists at a special term without notice published in the call for the special session of their purpose to do so, the fact that an affidavit to a list of sale contains no venue and does not show of what county the notary is a notary, are defects, violations of plain legal requirements in fact, held to be cured by this statute. Apparently there is one legal requirement governing these sales that has not been swept away by this amend
“A list of lands delinquent for taxes and a list of lands sold for taxes, giving no specification or description whatever of a tract or lot of land sold for taxes — utterly blank therein — are void, and render a tax sale of such tract and deed under it void; and such defect is not cured by section 25, c. 31, Code 1899.”
in this case decides that a delinquent list is actually required; that, if there is no delinquent list, the presumption arises that taxes have all been paid, and no lands are delinquent, and therefore none could be sold. Then he goes a step farther, and holds that in making these delinquent lists the officer ought not to simply return the name of the party and the amount of the taxes, thus: “Eliza E. McMillen, $18.14,” but ought to give some description— some number of acres — (possibly any number would do), just some little something that might identify! And he thinks the same thing ought to be true about the sale list, notwithstanding the curative features of section 25. However, Dent, J., could not, it seems, go so far. It meant too much future labor for the state and county officials, perhaps, so he filed a dissenting opinion, valuable because it collates and cites the numerous cases decided by that court touching tax sales, in which he holds such delinquent and sale lists as Brannon, J., objects to, are all “cured” after sale and deed by the omnipotent section 25! It would require entirely too much time and space to consider the more than. 30 other cases decided by the state court touching irregularities in these tax sales. Dent, J., in his dissenting opinion just referred to, points out a number that have been superseded by the change of the statute; others are in irreconcilable conflict with each other; while others have been expressly overruled. It is sufficient for me to say with the utmost respect and deference that I have no sympathy for the purposes and objects designed to be accomplished by this section 25, and I am constrained to think that the Supreme Court of the state has gone much too far in construing liberally, if not enlarging, its scope, instead of construing strictly its provisions as being contrary to common right and honesty. I fully appreciate the obligation upon federal judges to follow in a spirit of comity the courts of the state touching its statutes, and I will certainly discharge this obligation so far as possible; yet in view of the conflict and confusion existing in the state court’s decisions, in this case, if it stood alone upon that point, I do not believe I would hesitate to set aside as void the sale and deed, notwithstanding section 25, because of the irregularities on the face of the proceedings materially prejudicing the owner Barnes “as to what portion of his real estate was sold,” because an estate of “M. R.,” which he never had, and which is undefined in the law, and would be unintelligible without explanation, was sold and conveyed to an extent of at least double the amount of interest he had in the two tracts at the time of the assessment, the delinquent and the sale return. If, as counsel for defendant contend, when Barnes took his conveyance he held thence adversely to the
The second objection to the validity of this deed is because the whole property, including the sixteenth undivided interest held at the time by Barnes and Mallory Bros., was for the year in question —1899—assessed to Mrs. Kelley, and all taxes due thereon were paid by her. It is too well settled in this state to longer admit of doubt that the state is entitled to but one payment of taxes on lands held under one and the same title. A payment by one heir of the whole amount inures to the benefit of his coheirs; so, too, payment by the vendor inures to the benefit of his vendee, and a payment by one co-tenant or by one joint owner of the whole inures to the benefit of the other co-tenant or joint owners. Whitham v. Sayres, 9 W. Va. 671; Simpson v. Edmiston, 23 W. Va. 675; Bradley v. Ewart, 18 W. Va. 598; Gerke Brewing Co. v. St. Clair, 46 W. Va. 93, 33 S. E. 132. See, especially, the case of State v. Low, 46 W. Va. 451, 33 S. E. 271, an oil case very much in point. It is therefore a simple question of ascertaining whether all interests in these two tracts were assessed to and taxes paid by Mrs. Kelley for this year 1889. In the statement of the facts of the case I have pointed out the true situation. In 1898 — the year previous — by the carelessness and mistake of the officer making out the assessment book, the total valuation of the 69j4 acres assessed to Mrs. Kelley at $6.50 per acre was set down as $425, when it was in fact $451.75. The levies, however, were properly made and extended, based upon the true total valuation, and not upon that set down in the book. The same careless mistake was made in regard to the 2J^-acre tract, incomprehensible as it may seem, whére the total valuation was set down at $15, when in fact it was $16.25, and here, too, the levies at the proper rates were extended upon the true, and not the given, total valuation. It would be useless to try to determine how this mistake could be made in two items one after the other, yet a minute’s calculation will show that it was done. In 1899 precisely the same mistakes were made as to the total valuations of the tracts, doubtless arising from the fact that the official copied mechanically the book of the year before, the matter to that point being unchangeable from year to year substantially so long as the ownership remained the same, until a new reassessment was made. This year, however, unlike the preceding one, he forgot entirely to extend the levies upon the true valuations, but did so upon the erroneous one which he had carried over and set down from the book of the preceding year. This is the exact situation, and by the error of their officer and agent the state, county, and district lost, all told, the sum of 55 cents of their taxes. Shall this error of the officer be made the excuse for the assessment to Barnes independently, upon
This settles the case, but, if I am to follow the rule laid down for the state courts, and decide all the points fairly arising upon the record, a brief consideration may properly be given to the third objection- — that the separate assessment of the undivided interest in “oil, gas, and other mineral substances” was wholly unauthorized by law, and therefore void. No valid sale can be made for nonpayment of delinquent taxes where there has been no legal assessment of such taxes. Cunningham v. Brown, 39 W. Va. 588, 20 S. E. 615. Section 25 of chapter 29 of the Code of West Virginia of 1899 provides:
“Where a tract or lot of land becomes the property of different owners, in several parcels, or one person becomes the owner of the surface and another of the minerals under the same, or of the timber alone on said land, the assessor shall divide the value at which the whole had before been assessed, among the different owners, having regard to the value of each interest, compared with that of the whole and enter the same in the land bools.”
It is clear from an examination of the tax laws of Virginia ana of this state from the Revised Code of 1819 (Va.) down to the present day that the system of taxation for farm and other lands,, except town lots, has been based upon the “tract” as a whole as a particular identity. The “tract,” the “parcel,” the “homestead,” the “farm,” are words the most common known to the law in these states, and they all convey the same meaning involving a boundary of land identified and distinct as such. All these tax laws have required the separate and distinct tracts to be assessed. Section 8-of chapter 183, Rev. Code (Va.) 1819, directs that;
“Tbe commissioners shall enter each tract of land separately in tbeir said' books; and according to tbe best information which they can obtain, shall particularly describe the same in the manner following: In the first column, they shall enter the name of the person, who, by himself, or his tenant, has-the freehold in possession; in the second, the place of his residence; in the-third, his estate, that is, whether for life, or in fee; in the fourth, the number of acres of land; in the fifth, the description of the land as to the water courses, mountains, or other notorious places, on which or near to which it.*485 lies, other lands which it adjoins, and the number of the tract, if any; in the sixth, its distance and general bearing from the court house of the county.”
These requisites for the identification of the “tract" of land as such have been continued from that day to this in our assessment laws, and are substantially found in section 37, c. 29, of the Code of 1899, and also in section 49 of chapter 35, p. 303, of the Acts of 1905. In all it is to be observed that the “tract" was to be assessed in the “name of the person who, by himself or his tenant, has the freehold in possession.” The man in possession would have the use, the rents, issues, and profits, hence should pay the taxes, was and has been the reasonable theory. Section 25 of chapter 29, so far as it provides for separate assessment of surface and mineral held by different ownership, was a departure, first enacted February 29, 1860, and was incorporated into and made a part of section 22, c. 35, Code Va. 1860, from which it has come down to us with slight amendment regarding timber held separately. As I have said, the theory of our tax laws has all these years been to assess lands by “tract” identities to the person having the freehold in possession. I do not think there can be any doubt of the fact that this new section contemplated division of assessment of a tract only where there had been complete severance of the surface and minerals in ownership. This is made very plain by the words of the original act:
“In all eases in which the surface of land is held by one person, and the minerals under the surface are held by another, the commissioner or commissioners of the revenue in counties in which any such mineral and surface titles exist, are hereby authorized and required to determine the relative value of each,” etc.
This makes clear that the severance was to be complete, and the holding to be by separate titles. It seems to me clear that no such severance could possibly be considered as having been made where there has been conveyed, as in this case, only a fractional undivided interest in the minerals. It being an undivided interest, the idea of severance is, on the contrary, refuted. It is an interest with the owner in and to every drop of oil, every inch of gas, and every atom of mineral substance. Therefore section 25 of chapter 29 does not apply. On the contrary, the general rule does apply that the person was to be taxed who had the freehold in possession; in this case Mrs. Kelley. It is therefore, without need of further discussion, sufficient to say that the undivided sixteenth interest could not be assessed to Barnes, that there was no warrant in law for such assessment; therefore for this reason the sale and deed made to Bee were absolutely null and void.
In conclusion I have some trouble in my mind in determining what direction should be made herein as to the payment of costs. The plaintiff, Barnes, has tendered and deposited with the clerk of this court $15 on account of the taxes paid and expenses on the part of defendant Bee in obtaining the tax deed. The Supreme Court of Appeals of West Virginia has determined that, where a tax deed is vacated for irregularities in the proceedings, the owner, as a condition precedent, must pay these taxes, interest, and expenses as
