57 W. Va. 492 | W. Va. | 1905
Lead Opinion
J. T. Fisher, a resident of Winchester, Virginia, obtained this appeal from a decree of the circuit court of Berkeley county, requiring him to pay to the plaintiff, Ignatius Cain, the sum of $363.00, with interest thereon from the first clay of October, 1903, as ■ damages sustained by the plaintiff, in consequence of a breach of a covenant of special warranty in a deed, by which Fisher had conveyed to Cain a certain lot in the town of Elkins, in Randolph county, said sum being the purchase money of said lot with interest thereon to the date of the decree. The jurisdiction in equity is founded upon an attachment levied upon real and personal property in the county of Berkeley, owned by the defendant.
The deed, containing the covenant, bears date March 28, 1892, and conveys a lot described as “Lot No. 138 in Block 20” on the plat of the town of Elkins. At the time of the conveyance, there was a lien on the lot for taxes assessed thereon against Fisher for the year 1891. This lien dated from the 1st day of April, 1891. Code chapter 31, section 1, chapter 29, section 39, chapter 47, section 36, chapter 49 section 6. For non-payment of said taxes, the lot was returned delinquent, presumably before the first Monday in June, 1892, and sold by the sheriff in the month of November, 1893, to C. H. Scott, who procured the deed therefor, under his purchase, on the 1st day of December, 1894, and, afterwards, sold the lot to James Hanley. The lot seems not to have been in the actual possession of any one, at the time of the conveyance by Fisher to Cain, nor until after 'Hanley purchased it in 1895.
An assignment of error is founded on the action of the court in overruling the demurrer, but, as no reference is made to it in the brief and no defect in the bill is perceived, it is unnecessary to consume time and space in discussing it.
It is said that the court should have found for the defendant on the merits of the case. This raises practically all the questions in the case, the most important of which are as
The negative response of counsel for the appellant to the first question is based upon the character of the covenant. It being one of special wai’ranty, which is not strictly a covenant against incumbrances, he says the tax sale does not constitute a breach of it. The only difference between a covenant of special warranty and a covenant of general warranty, is that the former makes the grantor responsible for any eviction by any person claiming, or who shall claim, by, through or undei' him, while the latter makes him responsible for eviction or loss of title by reason of a claim or demand by any person whomsoever. Code, chapter 12, sections 13, 14; Rawle on Cov. for Tit. section 126; 11 Cyc. 1077. The distinction, therefore, amounts to nothing when the ouster or loss of title results from an act of the grantor himself or some person claiming under him. As the taxes, for which the lot was sold, accrued while the grantor owned the property, the character of the covenant is immaterial. It is further contended in this connection, however, that the lien for taxes was only an incumbrance upon the property and that an incumbrance works no breach of a covenant of warranty but only óf a covenant against incumbrances. That a covenant of warranty is not strictly a covenant against incumbrances is true, but an incumbrance may, and often does, work a breach of a covenant of warranty by resulting in a loss of title and eviction of the grantee. Ho right of action accrues under a covenant of warranty by reason of the fact that there is an incum-brance upon the property, but when that incumbrance results in a sale of the property, taking away the title of the grantee, a right of action does accrue on the covenant of warranty. “The eviction of a grantee by reason of an encumbrance resting on the land at the time of its conveyance is a breach of the covenant of warranty in the deed to him, unless, knowing of its existence at the time of the execution of the deed, he has agreed to discharge it.” 11 Cyc. 1123; Clark v.
Has there been an eviction? Cain never had actual possession. The lot was unenclosed and unoccupied. After the tax sale and conveyance and the subsequent conveyance, by
The charge of invalidity in the deed is based upon a departure in the granting part thereof from the record of the sale and recital in the deed in respect to the description of the lot. The report of the sheriff’s sale, as recorded in the office of the clerk of the county court, and a recital in the deed, describe the quantity of land charged, and the quantity of land sold, as “Pt. Lot 138 B. 20.” By the deed the entire lot was conveyed. Before procuring his deed, the purchaser, in obedience to the statute, caused a report to be made to
As supporting his position, counsel for appellant relies upon Jones v. Dils, 18 W. Va. 759, in which the deed to a purchaser at a tax sale was declared void because it conveyed a less quantity of real estate than had been sold. The sheriff’s report of sale showed that one hundred acres had been sold, but the purchaser took his deed for only eighty acres. The legislature very promptly provided for such cases, bjr declaring that no sale or deed should be set aside by reason of the conveyance by the deed of a less quantity of real estate than that mentioned in the list of sales made out and returned, if the real estate so conveyed by the deed, was,, in fact, the same which was sold as delinquent. Last clause of section 25 of chapter 31 of the Code. The case relied upon, however, would not be applicable had this curative provision not been inserted in the statute, for the reasbn that this deed conveys, not less, but more, land than is mentioned in the sheriff’s report of sale. There is' another provision of said section 25, clearly covering, and rendering harmless, the matter complained of, which reads as follows: “If more than one tract of land be charged as one, or the quantity thereof, or the residence of the party charged with taxes thereon, or the location of the real estate sold, or the district in which it is charged with taxes, be mis-stated, 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.” Fisher owned the whole of said lot No. 138, and the taxes charged to him on account thereof were the taxes on the whole lot, for there was no other entry on the book as to that lot in his name or in the name of any other person. Hence, the whole lot was taxed to him, returned delinquent and sold under the misdescription of part of No. 138 Block 20. It is clearly just such a mis-statement of quantity as is contemplated by the statute. It is in the form in which, as to a town lot, a mis-statement of quantity would easily and frequently occur. Such property is never taxed by the acre,
In support of the proposition embodied in the third question, the argument is, that, as the plaintiff was a resident of the county in which the lot was situated, for the greater part of the period within which the proceedings by which he lost his title took place,. some of which were made known to the public by publication, he must be deemed to have had notice
The effort to show payment of the taxes wholly fails for want of proof. No receipt is produced and nothing is offered to sustain it except the testimony of the defendant to the effect that the sheriff, at his request, rendered a bill for his
As the decree is plainly right, it will be affirmed.
Affirmed.
Dissenting Opinion
{dissenting):
I dissent because I regard the tax deed as void. A tax deed must rest on a valid assessment, delinquent and sale list. Mosser v. Moore, 49 S. E. 537, 56 W. Va. 478. All three in this instances were vague. ‘ ‘A description of property in an assessment roll which is so vague, indefinite and uncertain as to render it impossible to determine whether the whole or a part, or if a part, what part, of the'land ivas intended to be assessed to-the person named, is insufficient. And a description which states that the property is part of a larger tract, but does not clearly identify the specific and determinate part intended, is so inadequate as to fender the assessment a nullity. For not only would such a description be inadequate to inform the owner of the taxing of his land, but a deed convejdng a ‘part’ of a lot or tract would convey no legal title to any portion. The same objection applies to an assessment which merely describes the land as a certain number of acres in a specified tract, without locating or identifying the portion meant to be assessed. ” Black, Tax Titles, section 115. See 1 Blackwell, Tax Titles, sections 223, 229, 242. The statute referred to by Judge Poeeenbarger does not cure this fault, which bjr common law makes the deed void. The charge on the tax books, “Pt. Lot 138 B. 20,” is vague. It is not misstatement of quantity; it is no statement at all of quantity. What is the quantitv stated? None. It indicates perhaps part of the lot by the letters ‘ ‘Pt. ’ ’ What part ? Ten feet, or forty feet. One-fourth, or one half? The entry does not tell. It is faulty, vague, uncertain description. Can you sell part of a man’s tract or lot and make a deed for the whole? If mere misstatement of quantity, the statute would cure; but the entry does not purport to state quantity. Jones v. Dills, 18 W. Va. 759, is in point. It holds that if an entire tract is sold, there is no authority to make a deed for part. On like principle where a sale is of part a deed cannot be made for the whole.