12 Gratt. 266 | Va. | 1855
Lead Opinion
This case turns on the proper construction of the 15th section of the 37th chapter of the Code, prescribing the mode in which lands, returned delinquent for taxes, are sold therefor, or vested in the commonwealth. Preceding sections of the chapter having declared when, where and how land is to be sold for taxes, and provided for a payment of the purchase money and a receipt therefor, and for the return of a list of sales to the court of the county or corporation whose officer may have made the sales; and ^having also pointed out the time and
And the fifteenth section provides that when an entire tract of land is so sold, and not redeemed within the two years, the purchaser shall have a report made by the surveyor of the county to the court thereof, specifying the metes and bounds of the land sold, and the names of the owners of the adjoining tracts; and giving such further description of the land sold as will identify the same: and the County court, unless it see some objection to such report, shall order the same to be recorded.
And the sixteenth section then provides that after the expiration of the two years, the purchaser of the land so sold and not redeemed shall obtain from the clerk or deputy clerk of the court of the county or corporation, whose officer may have sold such land, a deed conveying the same, in which shall be set forth all the circumstances appearing in the clerk’s office in relation to the sale. Moreover if the sale be of part of a tract of land, the deed shall refer particularly to the plat and certificate of survey returned, according to the fourteenth section, and the order of the court thereupon; and if the sale be of an entire tract of *land, it shall refer to the report made according to the fifteenth section, and the order thereupon. If the sale be of a town lot, or of an undivided interest in such lot, and a report be made by a surveyor describing the same, and such report be ordered by the court to be recorded, the deed shall refer to the said report. But when in the case of a sale of a town lot or of an undivided interest in such lot there is no such report, the clerk shall nevertheless execute a deed therefor to the purchaser, if he desire the same.
Can there be any reasonable doubt as to the nature and extent of the duty to be performed by the County court under the fourteenth section? After pointing out how the survey is to be made, and requiring a plat and certificate of it to be returned to the court, the section, in plain and unambiguous terms, limits the enquiry of the court to the question whether or no the survey is correctly made in conformity with said section. Does the plat and certificate show that the survey commences on one of the lines of the tract sold? Is it so made as not to include the improvements? Is it in one body? Is the length no more than double the breadth? If so, then the condition, the only condition on which the order for the record of the survey is in terms made to depend, is satisfied, and the duty of the court to make the order becomes absolute.
The duty of the court under the fifteenth section is, I think, equally simple and obvious. “Unless it see some objection to such report, ’ ’ it is to order it to be recorded. Does the report specify the metes and bounds of the land sold, and the names of the owners of the adjoining tracts, and give such further description of the land sold as will identify the same? If in any case arising under this section these questions are answered affirmatively, what possible objection can the court see to the report? And how can it make *objection to the regularity of some previous proceeding the ground for refusing to record the report, without violating the express command requiring it to order the report to be recorded, unless it sees some objection; not some objection generally, but some objection to the report?
The meaning of the terms employed in the section seems to my mind too plain to admit of any doubt as to the answer to be given. And indeed we cannot convert the examination by the court of the survey under the 14th section, or of the order under the ISth, into an occasion for contesting and deciding upon the regularity and validity of the previous proceedings, without imputing to the legislature a gross partiality and injustice. For we have seen that by the provisions of the 16th section, when the sale is of part of 'a tract of land, the deed is to refer particularly to the plat and certificate of survey returned, and when the sale is qf the entire tract, the deed is to refer to the report required by the ISth section. Whereas in the case of the sale of a town lot, the provision is, that if there be a report made by a surveyor describing it, and the report has been recorded, the deed is to refer to such report; but if there is no such report, the clerk shall nevertheless execute a deed for such lot to the purchaser, if he desire it. And thus as the purchaser may procure his deed, in the case of the sale of a town lot, without having had any survey or report made, the opportunity for showing defect in the previous proceedings, which under the construction contended for by the plaintiff in error is afforded in all cases to the owners of tracts and parts of tracts of land sold for taxes, is virtually denied to the owners of town lots so sold, by being made to depend on the mere option and course of the purchaser. Such a construction, therefore, is condemned as well by the results which flow from it as by the plain meaning of the language ^empkwed in the statute. And I feel no difficulty in coming to the conclusion that in cases like the one under consideration, the County court has no right to look beyond the return of the list of sales by the sheriff, and to examine into the regularity of the previous steps. No matter
Dissenting Opinion
dissented from so much of the opinion and judgment as held that in this case the action of the County court was to be treated as merely ministerial. The power was confided to a court of record, and the action of the court was judicial; the parties appeared and litigated the question ; the court has affirmed its jurisdiction by pronouncing judgment which would conclude the parties until reversed; and therefore it was proper for the Circuit court to review and if erroneous to reverse it. He was further of opinion that the authority of the County court, although *the court acted judicially, was limited to the enquir3' whether the report of the surve3Tor conformed to the requisitions of the law; and that it was not competent for such court, upon this enquiry, to require proof of the regularity of the proceedings leading to or attending the sale. He was further of opinion that the survey did conform to the requisitions of the law, and was therefore for affirming the judgment of the Circuit court reversing the judgment of the County court, and proceeding to enter the judgment it did.
The order was as follows:
The court is of the opinion that the County court, in passing upon any question arising under the 15th section of the 37th chapter of the Code of 1849, prescribing the mode in which lands returned delinquent for taxes are sold therefor or vested in the commonwealth, sits simply as a court of registry; and in determining whether or no it will order the report of the surve3ror, therein required to be recorded, is restricted to the consideration of objections to said report, and has no right to look beyond the return of the list of sales by the sheriff required by the eleventh section of said chapter, into the previous proceedings provided for in said chapter. That the said court, izi discharging its duty under the said 15th section, is vested with no judicial powers, but acts in a capacity purely ministerial; that it is its duty to see whether or no said report is in conformity with the provisions of said section, requiring the report to specify the metes and bounds of the land sold, and the names of the owners of the adjoining tracts; and to give such *other description of the land sold as will identify the same; and that in order to discharge this duty, no enquiry into the regularity or validity of the previous proceedings is necessary or proper. And if it sees that there is no objection to said report on the score of its failing to make the specifications or to give the description just mentioned, it becomes the imperative duty of said court to order said report to be recorded.
The court is, therefore, also further of opinion, that the County court had no authority to render the judgment of the 14th of March 1853, dismissing the motion of the defendant in error, and ordering him to pay costs to the plaintiff in error.
And the court is also further of opinion, that whether or no there was such objection to the report of the survey in the proceedings mentioned, as justified the County court in refusing to order the same to be recorded, is a question which it was not competent for the superior court to take cognizance of by means of writ of error or supersedeas; and that the propriety of the action of the County court in refusing to order said report to be recorded, can be tested in the superior court by mandamus only.
And the court is therefore also further of opinion that the Circuit court erred in undertaking to decide on the refusal of the County court to order said report to be recorded, and in rendering a judgment ordering the same to be recorded: And that instead of rendering its said judgment of the 20th July 1854, the Circuit court ought simply to have rendered a judgment reversing, with costs to defendant in error, the judgment of the County court dismissing his motion, and ordering him to pay costs.
It is therefore considered, that so much of the said judgment of the Circuit court as reverses the said judgment of the County court, with costs to the defendant in error, be affirmed; and that so much thereof *as orders the report aforesaid to be recorded, be reversed and annulled. And that the said plaintiff in error recover against the said defendant in error his costs by him expended in the prosecution of his writ of supersedeas aforesaid here. And the said defendant in error is at liberty to renew his application before the County court, or to take such other legal course as he may be advised to pursue in the premises. All which is to be certified, &c. „
