106 Va. 356 | Va. | 1907
delivered the opinion of the Court.
By deed dated the 27th of January, 1851, George W. Probst conveyed to R. T. Wicker, trustee, certain personal property and a house and lot on Byrd street, in the city of Richmond, in trust for the sole and separate use and benefit of Elizabeth Ann Probst, the wife of the grantor, during the term of her natural life, and for the benefit of the children of the grantor, then living or thereafter to be begotten, and after the death of. the said Elizabeth Ann the trustee was to convey the property to the child or children of the grantor living at the time of the death of said Elizabeth Ann, by proper assignment and conveyance. The deed expressly stipulated that the trustee was to permit the said Elizabeth Ann Probst, during her natural life, to use and enjoy the property conveyed for the use and support of herself and the children of the grantor. It was further provided that the trustee, with the written assent of Elizabeth Aun Probst, might sell or exchange the property and hold the proceeds or the exchanged property on the terms of the original trust.
R. T. Wicker having died, the Hustings Court of the city of Richmond, on the 17th day of October, 1851, appointed Barnett Wicker trustee in said deed in the place of the deceased trustee, and Barnett Wicker, as substituted trustee, with the assent of Mrs. Probst, signified by her signing and sealing the deed, sold the house and lot on Byrd street, and by deed conveyed the same to the purchaser, John B. Davis. Subsequently Wicker, in accordance with the terms of his trust, invested the proceeds of the sale in a certain house and lot, known as Ho. 60S north Second street, in the city of Richmond, and the house and lot were conveyed to him by Erederick Anderson on the 15th day of March, 1855, upon the same trust contained in the first-named deed.
Mrs. Probst died in 1883, leaving Charles S. Probst as the only surviving child of herself and her deceased husband, George W. Probst. Charles S. Probst, on the 23d of July, 1886, con
During the lifetime of Mrs. Probst, and for the years 1876, 1877 and 1878, the said house and lot became delinquent for taxes, the same having been listed for taxation in the name of “B. Wicker, trustee for E. A. Probst, &c.,” and the said taxes not having been paid the property was sold for the delinquent taxes and bought in by the Commonwealth. Not having been redeemed as provided by law, Joseph E. Glenn made application for the purchase thereof, under section 666 of the code as amended by the Acts of 1897-’98, and on the 28th of November, 1899, Walter Christian, clerk of the Hustings Court of the city of Richmond, executed and delivered to Glenn a tax deed to the property.
B. Wicker, substituted trustee in the original’deed of January, 1851, departed this life some years ago, and one James E. Phillips qualified as his administrator.
The above facts, which are not controverted, indicate the nature and extent of the title to the estate vested in B. Wicker, substituted trustee, etc., and the following additional facts are agreed in the record, viz: That the real estate in controversy was duly transferred on the land books of the city of Richmond from Anderson and wife and charged to and assessed for taxes in the name of Barnett Wicker, trustee for E. A. Probst, &c.; that it was so assessed from 1876 to 1886, inclusive; that the taxes so assessed for the years 1876, 1877, 1878, 1879 and 1886 became delinquent and were never paid except by Glenn . . ; That upon the death of Mrs. Probst, Charles S. Probst, her only surviving child, took possession of the property and held the same until July 20, 1886, when he conveyed it by deed of that date to Willard E. Brown, whereupon the latter entered, took actual possession and held the same until November 28, 1899; but no conveyance of the title of the trustee was ever made to Charles ■ S. • Probst; that upon the recordation of the
The case now before us is the sequel to Glenn v. West, 103 Va. 521, 49 S. E. 671, which was a suit in equity brought by West to remove the cloud on the title to the house and lot in controversy by reason of the tax deed therefor from Christian, clerk, to Glenn, and the possession thereof having been acquired by Glenn under his said deed the bill was dismissed without prejudice to the right of West to take such further proceedings to recover the property as he might be advised. West having been adjudged by a decree of the Chancery Court of the city of Richmond to be the equitable owner and entitled to have a
TJpon the hearing of the cause it was submitted to the court, upon the facts above stated, without a jury, and judgment was rendered in favor of West, to which judgment Glenn obtained this writ of error.
The sole question presented is: What estate or interest, if any, passed to Glenn by his deed from Christian, clerk, of November 28, 1899 ?
In our view the decision of that question is practically controlled by the decision in Tabb v. Commonwealth, 98 Va. 47, 34 S. E. 946, 51 L. R. A. 283. In that ease the properties in question were held by a trustee, named, in trust for the use and benefit of P. M. Tabb and wife during their joint lives and the life of the survivor, with remainder after the death of the survivor .to their children living at his or her death and the descendants of such children, if any should be then dead, such descendants taking per stirpes. Willianna Tabb survived her husband, P. M. Tabb, and died November, 1897, leaving surviving her certain children and grandchildren, who, under the terms of the deed referred to, became the owners of the properties in fee-simple absolute. In that case the trustee took a legal estate pur autre vie in trust, and P. M. Tabb and his wife took an equitable life estate with the usufruct of the property, and the children and grandchildren took vested remainders as they came into being, which were liable to be defeated by their dying before P. M. Tabb and his wife, but were not liable to be defeated by any other event, and at the death of Willianna Tabb, the survivor, the trust ceased and the children and grandchildren took a fee-simple estate, freed of the trust. The only difference between the trusts in these two cases is that in the Tabb case, by the terms of the deed, the trust ceased upon the death of Mrs. Tabb, the survivor, while here the trustee, after
In that case, as in the case at bar, the life tenant “was in the full possession and enjoyment of the entire property. Upon her rested the duty and obligation to pay the taxes thereon as they accrued.” Downey v. Strouse, 101 Va. 226, 43 S. E. 348.
It is a well settled rule of law that the burden of paying current taxes is upon the life tenant rather than upon the remainderman. Hagan v. Volney, 147 Ill. 281, 35 N. E. 219; Esterbrook v. Royon (Ohio), 39 N. E. 808, 32 L. R. A. 805, and note; 1 Wash, on Real Property (6th Ed.), section 342; 2 Cooley on Taxation (3d Ed.), page 818; 27 Am. & Eng. Enc. Law, page 677.
It was a matter of no importance whether the property in question here was properly or improperly listed and assessed for taxation, or. what was the nature of the title held by the trustee; for clearly it was intended by the Legislature, in the enactment of the statutes governing the assessing and taxing of property in the Commonwealth, as shown by the opinion in Tabb v. Commonwealth, supra, that such taxes should be assessed against the person or persons in the possession and enjoyment of the property, whereby the duty is imposed upon such person or persons to pay such taxes as are authorized 'by law to be levied upon the property. It was never intended in a ease like this to impose the duty of paying'taxes upon the trust property-on the trustee, who holds merely the legal title, and not on another in the full possession and enjoyment of the property. The trustee had no right to the possession of the prop
The listing of this property and the assessment of taxes thereon in the name of “B. Wicker, trustee for E. A. Probst, &e.,” was in effect a listing of the property and the assessment of taxes thereon in the name of E. A. Probst, the life tenant, and the lien for the taxes as they accrued thereon during her life was a lien upon her estate in the land only. Upon the property being returned as delinquent for the taxes assessed thereon, “the person in whose name said real estate was listed when sold to the Commonwealth, or other person who had the right to redeem before it was sold” may redeem, etc.; but no provision whatever is made that the remainderman may redeem. It would, therefore, be a travesty upon justice to hold that the plaintiff in error here, acquired by his deed from Christian, clerk, not only the life estate of Mrs. Probst in the property, but the right of the remainderman to the fee, when the remainderman was not in default in the payment of the taxes for
We are, therefore, of opinion that there is no error in the judgment of the Circuit Court, and it is affirmed.
Affirmed.