16 W. Va. 345 | W. Va. | 1880
delivered the opinion of the Court:
The real question involved in controversy in this case is, whether the tax-deed of the clerk above copied operated to convey the title of the plaintiff to the tract of land in controversy. If it did, the judgment of the court was right; if it did not, this judgment was erroneous, and a new trial should be awarded the plaintiff. The question was discussed at the bar whether in this case the twenty-fifth section of chapter one hundred and seventeen of the Acts of 1872-3, passed April 9, 1873, has any application to this case, or whether it is controlled by the twenty-fifth section of chapter thirty of Code of West Yirginia; and also whether these sections of the law are constitutional. But as the portions of these.sections which agree have not been complied with, so as to render thih tax-deed valid, in my judgment it is unnecessary in this case to determine, which of these sections control in this case, or. whether any portion of either of them be unconstitutional. These were the questions on which the court gave instructions, which were the subject of controversy in part in the court below. But as these questions are in my judgment immaterial in this case, I waive the consideration of the instructions
In considering this question we need not determine whether we should confine our attention to the report of the sales for delinquent taxes as recorded in the recorder’s office, or whether we may look also to the report of sales as recorded in the Auditor’s office; for both these reports agree in this respect: that the name of the person in whose name this tract of land was taxed for the year 1870, does not appear. And in my judgment this defect alone is sufficient to vitiate the sale of this tract of land, if sold for the taxes of 1870, either in whole or in part, and the deed on its face shows, that the land was sold in part for the delinquent taxes of 1870.
The twenty-ninth section of chapter one hundred and seventeen of Acts of 1872-3, provided : “In all cases, in which a question shall arise as to any such sale or deed or the effect thereof, such deed shall be prima facie evidence against the owner or owners, legal or equitable, of the real estate at the time it was sold, his or their heirs or assignees, that the person named in the deed as recorder or clerk of the county court was such, that the sheriff or other officer who made the sale was such sheriff or officer as stated in such deed, that the material facts therein stated are true, and that such estate as is mentioned in the twenty-fifth section of this chapter vested in the grantee in the deed.” Appropriating the language of Judge Allen in the case of Flanagan v. Grimmet et al., 10 Graft. 425, in reference to a similar act oí the Legislature of Virginia passed February 9, 1*814, I>may well say, that “when this act was enacted, the Legislature was fully aware of the construction which had uni-formally been put on laws of this description (tax-bale laws). Few principles of law were more firmly settled, and, from their influence on the transactions of others, more widely known than, that when the validity of a deed depends upon acts in pais, the party claiming un
“As the various directions contained inlaws for the sale for taxes were frequently disregarded by officers charged with the duty of making such sales; and, whether complied with or not by the officers, purchasers bad but seldom preserved the evidence of such compliance, even if, considering the number of such sales, it would have been practicable for each purchaser to procure and preserve that evidence, it followed that but few titles claimed under such sales were sustained by the courts. Confidence in such titles was greatly impaired and almost-destroyed. It was manifest, that, unless some assurance could be held out to purchasers at sales for taxes that a good title could be acquired, the commonwealth would continue to meet with embarrassments for want of an adequate mode for the subjection of land to the payment of taxes; and hence the passage of this and similar acts.”
In this case the tax-deed is made in the form prescribed by the fifty-eighth section of chapter one hundred and seventeen of Acts 1872-3, page three hundred and forty ; and it is therefore valid in its form according to this section. Uqder the twenty-ninth section the deed itself ■in this case would be prima faeie evidence of all the material facts cited in this deed. This deed is therefore valid and operative, unless this prima fade evidence of its validity is rebutted by showing that the material facts recited in it are contradicted by the material facts with relation to the sale appearing in the clerk’s office which ought by the law to be cited in the deed. See section nineteen of said act, page three hundred and eighteen. By sections twelve, ten and fourteen of said act, pages three hundred and thirteen and three hundred and fourteen, the sheriff is required to make a report of each tract of land sold, which shall show, among other things for what year or years of delinquent taxes the land was
The report of sale, it is however insisted by counsel of defendant in error, does not contradict the facts cited in the tax-deed ; but they are entirely consistent with each other. The tract may have been charged in the name of Lorenzo Dequasie for the year 1870, as stated in the deed, as the report of sale does not state that it was 'charged in the name of some other person for that year. It simply fails to state, as it should have done, in whose name the tract was charged for the year 1870. In such a case however the maxim quod non apparet non est, that which does not appear must be taken in law as if it were not, must be applied; and a material fact required by the law to appear in the report of the sale made by the sheriff, if it does not appear, must necessarily be re
This conclusion is supported by the authorities. Thus in Illinois the act of January 19, 1829, provides, that a “deed from the Auditor of public accounts shall be evidence of the regularity and legality of the sale, until the contrary shall be made to appear;' Provided however, that no exceptions shall be taken to any such deed, but such as shall apply to the real merits of the case and are consistent with a liberal and fair interpretation of the intentions of the Legislature.” Under this statute the courts decided : “"The presumption arises from the deed that all the prerequisites, necessary to constitue a valid sale of land, were complied with ; and the party asserting the reverse mustovercome this presumption by proof» or the deed will conclude him. When the claimant under the tax-deed brings an action of ejectment, he makes a prima facie case of title to the land by the production
So in Turney v. Yeoman et al., 16 Ohio 24, it was held, that though the statute of that State, like ours, makes the tax-deed prima facie evidence of the facts therein stated; yet a description of a tract of land in the deed as an undivided third part of a thousand acres is contradicted by the listing of this land as three hundred and thirty three acres in an original survey of one thousand acres. The court sáy: “Now it might be cun-tended, with much reason and force, that, it being the duty of the owner to list his land for taxation, he ought not to be permitted to question a tax-deed by showing that he failed to perform his duty by giving a wrong or too vague description. It would have been well in the first instance, perhaps, to have held this doctrine, but the opposite principle has always been observed and been too frequently asserted to be disturbed, except by legislative interference, which would giveita prospective operation.” The constitutional right of the legislature to so interfere seems to me to be very questionable.
In the case before us, I presume, the defect in the listing which appear in the sheriff’s report of sales •was in no manner the fault of the owner of the tract of land.
In Sibley v. Smith et al., 2 Gibbs (Mich.) 497, the court speaking of the character of the evidence necessary to rebut the prima facie made by this statute by the production by the plaintiff of the tax-deed, says: “ The defend
In Fitch v. Casey, 9 Green (2 Iowa) 305, only one fifth of a lot was assessed, but the collector sold two fifths. On this being proven the deed was held invalid, though in that State the tax-deed is prima faoie evidence that the statute authorizing the sale has been complied with.
The twenty-fifth section of chapter thirty one of the Code of West Virginia, page one hundred and ninety four, declares the tax-deed valid, “notwithstanding any irregularity in the proceedings under which the said grantee claims title, unless such irregularity appears on the face of the proceedings of record in the office of the recorder and be such as materially to prejudice the rights of the owner whose real estate is sold.” Chapter one hundred and seventeen of the Acts of 1872-73, section twenty five, declares the tax-deed valid “ notwithstanding any irregularity in the proceedings under which the said grantee claims title, unless such irregularity appears on the face of the proceedings of record in the office of the clerk of the county court, or be such as materially to prejudice the rights of the owner whose real estate is sold, and it be dearly proven to the court or jury that such diligence has been exercised by the party in whose name it was sold, that but for such irregularity the said party would have redeemed the same.”
It is in my judgment immaterial, whether these provisions be constitutional or not, or whether in this case in this respect the Code, or the Acts of 1872-3, is to control. The court below instructed the jury that the act of 1872-3, controlled in this case, and not the provisions intheCode. But it is immaterial whether the actof 1872-3,
The circuit court therefore erred in refusing to set aside the verdict of the jury, and in entering up a judgment for the defendant; the verdict of the jury being necessarily based on the assumed validity of this tax-deed.
The judgment of the circuit court in favor of the defendant, of April 6, 1878, must be set aside, reversed and annulled; and the plaintiff in error must recover of the defendant in error his costs in this Court expended; and this Court proceeding to render such a judgment as the circuit court ought to have rendered doth sustain the motion of the plan tiff for a new trial, and doth set aside the verdict of the jury, and award a new trial, the costs of the former trial to abide the result of this suit, and doth r’emand this case to the circuit court of Fayette county, to be further proceeded with according to the principles laid dqwn in this opinion, and further according to law.
Judgment Reversed, Case Remanded.