87 W. Va. 313 | W. Va. | 1920
The bill dismissed upon final hearing upon the pleadings, without proof except such as the exhibits themselves furnished, sought a decree to cancel and annul two tax deeds, one dated November 4, 1905,, the other February 6, 1913, and general relief. The land affected by the tax delinquency consisted of a tract’ of approximately 90 acres situate in Mingo County on Mare Branch, a tributary of Cane Patch Fork of Twelve Pole Creek. . This tract Mary Yance by deed of May 3, 1879, conveyed to William R. Ellis and Martha Ellis, his wife. Plaintiffs are the children and heirs at law of the grantees. Defendants Chloe Ellis and C. F. Hager are the holders of xlre tax titles sought to be set aside, and defendant Louverna Hager is the wife off defendant C. F. Hager and sister of the plaintiffs and .therefore one of the heirs at law of William R. and Martha ' Ellis.
The pleadings and exhibits filed in the cause disclose substan- ’ tially these facts: In 1887 the 90-acre tract was returned delinquent for alleged nonpayment of the taxes assessed against it for that year, sold by the sheriff and purchased by the state,
As grounds for setting aside these deeds "plaintiffs rely upon the fact that the taxes for the year 1887, for the alleged nonpayment of which the land was returned delinquent, sold and purchased by the state, were in fact paid by them, and to support their contention in this respect they file as an exhibit a tax receipt for that year signed by the proper officer. Defendant Hager rests his defense not alone upon the proceedings based upon the alleged delinquency of 1887, but also upon a deed from Martha Ellis, dated March 10, 1898, which purports to convey to him the 90 acres in question. Tn this connection, however, and before considering plaintiffs’ right at this late date to assail the alleged improper delinquency of 1887 and sale thereunder to the state, even if it be assumed that that transaction and the deeds based thereon were void and the deed of 1898 valid, yet the latter deed conveyed to defendant Hager only the undivided
It is first necessary to consider whether plaintiffs are too late in their assertion of and reliance upon the actual payment of the taxes assessed against the property for the year 1887, as to which the alleged delinquency arose, followed by sale and purchase on behalf of the state. Section 27, ch. 31, Code 1918, provides: “If the owner of any real estate sold for the nonpayment of the taxes thereon, his heirs or assigns, claim that tlm taxes on account of -which the sale was made were not in arrears, he may, within five years after the deed shall have been obtained and admitted to record, institute a suit in equity against the purchaser, his heirs or assigns, alleging the payment of the taxes, and seeking to have the sale and deed declared void; or he may within such time, in any suit or action pending relative to the real estate in which the payment is not alleged, give to the purchaser, his heirs or assigns, parties thereto, notice in -writing of his purpose to prove the fact of such payment, or file such notice in the case at least thirty days before the trial or hearing thereof ; and having done so, may in such suit or action prove that such taxes were paid. But unless he shall, within said five years, institute such suit, or give or file such notice in a suit or action pending relative to such real estate, he shall -not prove such fact, or .on such account in any way question the validity of tire sale or deed.”
The five year period of limitation thus prescribed docs not begin to run until the purchaser’s deed for the property "shall have been obtained and admitted to record.” Where the state is purchaser, as here, no deed is made conveying to it the delinquent property. The owner’s right, title and interest vest in the state by virtue of the sale and purchase on its behalf, "without any deed or . other conveyance therefor to the state.” Section 32, ch. 31, Code 1918; Neal v. Wilson, 79 W. Va. 428. Hence in a purchase by the state of property sold for nonpayment of taxes the -event prescribed by statute as the initial or starting point for the period of limitation does not occur. There
The inapplicability of sections 27 and 33 to purchases on behalf of the state does not necessarily imply or justify unlimited right to assert and establish the fact of actual payment of the taxes on the real estate sold. Indeed, by the provisions of chapter 103, Code 1918, authorizing and prescribing the procedure for sales by the commissioner of school lands, there is apparent an attempt on the part of the Legislature to give to such sales a degree of finality consistent with due process of law. By the first section of that chapter lands purchased by or forfeited to the state, as well as those acquired by it in other ways, are subject to sale for the benefit of the state school fund. According to section 6, the owner of the land and all known claimants of title to or interest in it must be made parties defendant in the proceeding, and. any one 'so interested who is not so made a party therein may by petition become a party thereto. By section 17, the former owner, his heirs, devisees or assigns of such real estate, may redeem it, so far
Whether plaintiffs and their mother, Martha Ellis, were made parties to the school land commissioner’s proceeding to sell the tract does not appear from the record. The former as heirs at law of William R. Ellis, owner of one undivided half interest in the land, and the latter as owner of the other, probably were known claimants within the meaning of section 6. ch. 105, Code 1918, and should have been made parties to the suit. Neal v. Wilson, 19 W. Va. 482. Tf they were made parties and did not their assert their claim to annul and set aside the prior sale to the state, the final decree is a bar to this proceeding, for section 20, above referred to, prescribes its binding effect. On the other hand, if they should have been", but were not in any form, made parties to the proceeding, and did not voluntarily become such parties by petition, the final decree is not binding as. to them (Blake v. O’Neal, 63 W. Va. 483, pt. 9, Syl; Neal v. Wilson, supra), and the entire proceeding and sale thereunder, together with subsequent deeds based thereon, may be set aside at their suit.
Tt may be urged that even if these claimants were not made parties, yet such want of jurisdiction to make the sale is cured by section 19, ch. 105, Code 1918, as construed in State v.
On all these questions the record is very unsatisfactory. No proof was taken. . Much documentary evidence that should have been filed as exhibits or otherwise brought to the attention of the court was not filed; and the condition of the cause is such that we do not feel justified in passing finally upon these questions at this time. Nor shall we now discuss the effect of the deed of 1898, executed after the sale to the state but before the commissioner’s suit and sale to Chloe Ellis, by which Martha Ellis purported to convey the 90-acrc tract to defendant Hager. As said above, even assuming that she had the right at that time to make the deed, she thereby conveyed to Hager only her undivided one-half interest in the land. The other half interest was owned by plaintiffs and Louverna Hager as heirs at law of William R. Ellis.
Likewise we shall not now consider what effect the possession of Chloe Ellis under the tax deed of 1905, assuming it to be void, and of Hager under the deed of 1913, if continued for the statutory period, would have on plaintiffs’ rights. No proof discloses who was in possession of tho_tract during these years, or by whom the taxes were paid. Nor shall we discuss the effect of the purported redemption of June 7, 1912, prior to the date of the deed to Hager, or whether his purchase, as husband of a cotenant with plaintiffs, constituted a redemption of the tract in their favor within the rule announced in Abbott v. Williams, 74 W. Va. 652, and Cline v. Bailey, 85 W. Va. 139, 101 S. E. 171. All these circumstances are clouded in
Reversed and remanded.