48 W. Va. 316 | W. Va. | 1900
John R. Boggess owned several tracts of land in Doddridge County,, among them one of one hundred and eight acres. In 1886 he conveyed fifty-three and one-half acres of that tract to Mary R. Starkey. By an instrument calling itself a deed, dated 1st April, 1890, Boggess conveyed to C. A. Boggess, in trust for Wheeler Boggess, three tracts, ohe of one hundred and eighty-three acres, one of two hundred acres and one of fifty-three and one-half acres, the last tract being the residue of the one hundred and eight acres after the conveyance of part of it to said Starkey. The said conveyance from John R. Boggess to C. A. Boggess, trustee, was recorded April 17, 1890. The said tract of one hundred and eight acres was charged on the land book of 1891 with taxes in the name of John R. Boggess, notwithstanding it had been conveyed away by him to said Starkey and said C. A. Boggess, trustee, and it was returned delinquent and offered for sale for said taxes of 1891, and Scott purchased sixty acres of the tract at such tax sale, and under this tax sale on January 8, 1895, he took a deed for fifty-three and one-half acres, and on the 9th of February, 1895, Scott conveyed a half interest in the sixty acres to Pratt. On the tax book of the same year, 1891, Wheeler Boggess was charged with the said three tracts conveyed by John R. Boggess to C. A. Boggess in trust for the benefit of Wheeler Boggess, the charge being, not by separate tracts, but as one tract of four hundred and thirty-six and one-half acres. The taxes under this charge were paid. By deed dated 30 August, 1890, recorded 13 September, 1890, C. A. Bog-gess as such trustee conveyed to Wheeler Boggess the three tracts which had been so convejred to said trustee by John R.. Boggess. Wheeler Boggess conveyed said fifty-three and one-half acres to Davis, and it was sold from Davis under decree of court to Dolan and conveyed to him, and Dolan conveyed said fifty-three and one-half acres to E. Stringer Boggess by deed dated 20 May, 1896. In 1894, Jarvis, as a creditor of John
The case involves simply the validity of that tax deed. The appellants contest the jurisdiction of equity to entertain this suit to cancel the tax deed and remove the cloud produced by it over Boggess’ title, claiming that the plaintiff must, to sustain such jurisdiction, be in actual possession, and so state in his bill. That such is the general rule of jurisdiction of suits to remove cloud over title, is admitted; but under the decisions in this State a suit to set aside a tax deed is an exception to that rule. Simpson v. Edmiston, 23 W. Va. 675; Forqueran v. Donnally, 7 W. Va. 114; Jones v. Dils, 19 Id. 759; Orr v. Wiley, 19 Id. 150; opinions of Dent, Judge, in Christian v. Vance, 41 W. Va. p. 757, and of Brannon, Judge, in Cecil v. Clark, 44 Id. p. 670, and Clayton v. Barr, 34 Id. 296. So, we must consider this question of jurisdiction as closed in this Court.
T think it clear that the tax sale cannot stand. Why? Because chapter 31, section 25, of the Code, gives the tax deed force to confer upon the tax purchaser only such right or title as was "'ested in the person charged with the taxes at the commencement of, or at any time during the year or years for which the taxes were assessed, and John R. Boggess had no title to the land at an}r time in the year 1891, having devested himself of title by his deed to C. A. Boggess of April 1, 1890. The assessment in his name was an erroneous assessment, one contrary to law, as the deed from John R. Boggess to E. Stringer Boggess was on record. Now, at common law that assessment would be null and void, because, at the commencement of the assessment year, there was no title in John R. Boggess, and the assessment in his
But in opposition to this view it is claimed that the assessment in the- name of Wheeler Boggess, which is so potent to nullify the assessment in the name of John R. Boggess, cannot have such force, because the deed from John R. Boggess to O. A. Boggess, trustee for Wheeler Boggess, is no deed, since it has no seal, and passed no title, but left the legal title still in John R. Boggess. The law seems to be that a deed must have a seal to pass technical legal title. 9 Am.& Eng.Ency.L. (2 Ed.) 147; but the question here is not one of technical legal title. On the contrary, it is merely a question whether an assessment of land in the name of the substantial owner, though he have no legal title, but has an equitable title, operates to save the land from a delinquency in the name of the party who holds the technical legal title only in trust for the benefit of the party holding such equitable title.
We must remember that we are in a court of equitj1', and that court regards the owner of the equitable title as the real owner, and says that all that the State can ask is one payment of taxes on a particular tract of land in one year, no matter whether it be in the name of the owner of the legal title or one hold inequitable title derived from that same legal title. It does not require a legal title assessment to save the land from delinquency
Another objection made for Scott and Pratt to show that there was no authority for the assessment of the land in 1891 to Wheeler Boggess is, that the deed from C. A. Boggess, trustee,
Another point made for Scott and Pratt is that the deed from John R. Boggess to C. A. Boggess, trustee, was held void as to creditors in the Jarvis suit. What effect has that in this case? Hone, for two reasons. The first is that the assessment of the land in Wheeler Boggess’ name was made in 1891, years before even the Jarvis suit was brought, and surely at that time the right of Wheeler Boggess as cestui que trust under the deed from John R. Boggess to C. A. Boggess, trustee, was intact from the later decree, standing as if no such suit had over been brought. The second reason is that even if the decree declaring said deed voluntary and void as to creditors had^been rendered prior to the assessment in 1891 in Wheeler Boggess’ name, it would not impair that assessment, for the reason that the decree held the deed void only sub modo, that is as to creditors, not totally void, giving Wheeler right to redeem from the debts, and leaving in him a title amply sufficient to warrant its entry on the tax books.
Another point made for Scott and Pratt is that it is not shown that Wheeler Boggess over ordered a transfer of the land on the tax books from John R. Boggess to anyone. That makes no difference. It was, in fact, on the tax book in Wheeler Bog-
Another point made against the assesment in Wheeler Bog-gess’ name is, that it was not by separate tracts, but as a whole, four hundred and thirty-six and one-half acres. If the tracts did not lie contiguous, a separate assessment of them would be more regular; but section 25 of chapter 31 of the Code gives the purchaser for taxes good title, notwithstanding such irregularity, by providing that “if more than one tract of land be charged as one * * * * all such right, title, interest and estate therein as is hereinbefore mentioned shall nevertheless pass to and be vested in the grantee in such deed.” Clearly, under this provision, if a sale for taxes has been made in the name of Wheeler Boggess,the purchaser would get his right,notwithstanding such irregular assessment of three tracts as a whole. The converse ought to be true. That assessment should be adequate, and is adequate, to save “Wheeler Boggess’ right from loss because of the assessment in John R. Boggess’ name. If good for the one side, it would be good for the other.
I should have stated above, in connection with the efficacy of the assessment in the name of Wheeler Boggess, that in as much as the deed of John R. Boggess to C. A. Boggess, trustee for Wheeler Boggess, created only a dry trust in the trustee, whatever its character, legal or equitable, with the absolute uso and benefit in Wheeler Boggess, giving him right to possession, though the deed from John R. Boggess had no seal, and only amounted to a contract to convey by a formal deed, and Wheeler Boggess being thus entitled to possession, and being in possession, the entry in his name would be regular under section 37, chapter 29, Code 1891, directing land to be charged on the land
Thus, I dismiss the subject of the validity of the assessment in Wheeler Boggess’ name with the statement that it is not only sufficient to save the land to Wheeler Boggess, and those claiming in privity with him, under the liberal principles of courts of equity, but that such assessment is strictly regular and proper.
Counsel for E. Stringer Boggess makes the point that the tax deed is void for the reason that the sheriff’s affidavit to the sale list is defective, because it omits the statement that the sheriff had no interest directly or indirectly in the purchase of any of the real estate sold by him, as required by sections 12 and 13, chapter 31, Code 1891. It is hardly necessary to discuss this point, though arising on the record, because ample reason to hold the tax sale void on another ground is stated above. The cases of Jackson v. Kittle, 34 W. Va. 207; Hays v. Heatherly, 36 Id. 613; Baxter v. Wade, 39 Id. 281, say that this defect is fatal before deed made under the tax sale, entirely sufficient to prevent or enjoin the execution of a deed under such sale. This stands on the reason that at common law such a defect would kill sale and deed; and in as much as section 25, chapter 31, Code 1891, is curative only of irregularities after the proceedings have progressed uncontested down to the execution and recordation of the deed, that section does not help or change the common law rule until after deed made and recorded. It is true that Phillips v. Minear, 40 W. Va. 58, makes this defect fatal even after deed made, and under that decision the deed in this case would be utterly void. In Winning v. Eakin, 44 W. Va. 19, 21, I expressed dissatisfaction with the case of Phillips v. Minear on account of the sweeping broad character of the curative provisions of section 25, chapter 31. I remain still under the same doubt of the correctness of that case, and I interpret the case of Gerke Brewing Co. v. St. Clair, 46 W. Va. 93, as logically overruling the case of Phillips v. Minear. I think that the clause in said section twenty-five making good a tax deed against defect “in the list of sales filed with the clerk of the county court, or. in the affidavit thereto,” and other provisions, would protect such deed against this irregularity.
As to the defect in the affidavit of the sheriff, it is contended that it might be supplied by oral proof of non-interest in the sheriff. I have no idea that it can be so cured. The sheriff’s
Seeing no error in the decree of the circuit court, the same is affirmed.
Affirmed.