70 W. Va. 726 | W. Va. | 1912
Mareellus Hardman and Mareellus Stump, in his own right and as executor of Susan M. Stump, deceased, have appealed from a decree of the circuit court of Gilmer county, made on the 15th of March, 1907, dismissing their suit which had been brought for the purpose of avoiding a tax deed made to Edwin L. Brannon on the 7th of June, 1904, for a tract of 95% acres of land.
Plaintiffs made a tender of the purchase money and interest. There was a demurrer to the bill, which the court overruled, and defendant answered denying every allegation of the bill, and plaintiffs replied' generally. The cause was heard upon the merits, on pleadings and proof, which was altogether documentary, and the court dismissed the suit without giving plaintiffs leave to amend their bill.
The tax deed, which is exhibited with the bill, recites that the sale was commenced and completed in the month of March, 1903, and plaintiffs say that the invalidity of the deed is thereby shown, because the sheriff could not then lawfully sell. The time when he shall sell depends upon statute. Section 6 of chapter 31 prescribes, with great particularity, the time when the sheriff shall commence his tax sales. After providing for the posting and publication of notices of sale, that section proceeds to fix the following time, or times, for commencing sale, in the following order, viz: First, on the first day of the next November or December term of the circuit or county court of the said county, whichever may be held first after the completion of publication of notice; or, second, if no term of either court is held in either November or December, then on the second Monday in December next after the publishing of said notice; or, third, in the event the sheriff should not receive the list of delinquent lands from the auditor in time to publish notice and make sale in November or December, he shall commence his
It is urged in brief of counsel for defendant, that it is not proven that the February term of the circuit court was actually held, nor that a regular term of the county court was not held on the 2nd of March, and that it was the first of either of the-courts held in- that year, in which event, they say, a sale on the 2nd day of March would be a compliance with the statute. We do not think this argument sound for two reasons. (1) Because, it is the purpose of the statute in fixing the first day of the term of a particular court, as a date for the sale, to have it at a time when the people collect at the court house; it is also a continuing notice, in the body of the law, to all delinquent tax-payers, that their land is liable to be sold on a day certain; and (2) the sheriff has to publish his notice in advance of the day fixed for the sale, and he must be governed by the statute fixing the time of the circuit court, and by the statute, or the previous order of the county court, fixing the time of holding that court, and he can not anticipate that a term of the
Sale of land for delinquent taxes is purely a statutory proceeding, summary in its nature, and, being in derogation of the common law rights of property, the courts uniformly apply to such statutes the rules of strict construction. They hold that every step in the proceedings which results in divesting the owner of. the title to his land must be strictly complied with. “A sale made at a time not appointed or provided for by law is without authority and void.” 1 Blackwell on Tax Titles, (5th ed.) section 488; Black on Tax Titles, (2nd ed.) section 221; Keith v. Preston, 5 Grat. 120; Thatcher v. Powell, 6 Wheat. 119. Chief Justice Marshall, who delivered the opinion of the court in the case last cited, at page 127 says: “In summary proceedings, where a court exercises an extraordinary power under a special statute prescribing its course, we think that that course ought to be exactly observed, and those facts which especially give jurisdiction, ought to appear, in order to show that its proceedings are coram judice.” This principle, we think, should apply with even greater force in a ease wherein a sale of land is made by a ministerial officer, acting by virtue of authority conferred 'directly by statute, and without any process or order by a judicial court. A history of the statutory proceedings, in Virginia and in this state, for the sale of land for delinquent taxes, and the court decisions bearing thereon, are reviewed in a well prepared and elaborate opinion written by Judge Holt, in Hays v. Hedtherly, 36 W. Va. 613.
But it is insisted by counsel for appellee that the failure to sell at the time provided by the statute, is cured by section 25, chapter 31, Code 1906. We do not think so. That statute is subject-to the same rules of strict construction- that govern the interpretation and construction of the general statute on the subject of sale of delinquent lands, -and it can not be properly held t-o embrace and cure any defect in the tax sale proceedings, not therein expressly included. The first part of section 25 prescribes the effect to be given to the deed which the clerk is authorized, by a prior section, to make to the tax-purchaser, and then proceeds to say that it shall have such effect, “notwithstanding any irregularity in the proceedings under which the same was sold, not herein provided for, unless such irregularity appear on the face of such proceedings of record in the office of the clerk of the county court, and be such as materially to prejudice and mislead the owner of the real estate so sold, as to what portion of his real estate was so sold, and when and for what year or years it was sold, or the name of the purchaser thereof; and not then, unless it be clearly proved to the court or jury trying the case,-that but for such irregularity the former owner of such real estate would have redeemed the same under the provisions of this chapter.”
In construing section 25, chapter 117, Acts of 1872-3, which contained the same provision, in substance, as section 25, chapter 31, Code 1906, in respect to proof of prejudice, and whether or not the former owner was misled, it was held by this Court in McCallister v. Cottrell, 24 W. Va. 173, (Pt. 2 Syl.), that, if the error -or irregularity appeared on the record of the proceedings, it must be presumed to have prejudiced the former owner,
There is no merit in the claim that plaintiffs were misled by the description of the land in the sheriff’s return of the list of sales. The land was assessed to Marcellus Stump as 59 acres, and described on the land book as “Steer Creek Mill,” and had been so designated since, and including the year, 1889. It was proper for the sheriff to get his description of the land from the land book, and he apparently did so, for his return list describes it as “Steer Creek Mill.” That was the description by which plaintiffs had paid taxes on the land for a number of years before.
The fact that the surveyor reported the land to contain 95% acres can not affect the ease. He did not make his survey and report until after the redemption year had passed. How, then, could that fact mislead and prevent redemption ? It could not. That the tract contained, by actual survey, more land than was shown by the assessment and bjr the sheriff’s list of sales, is not a matter of which plaintiffs have any right to complain. True it had been sold and conveyed to Hardman by the commissioner as a tract of 95% acres in 1898. But Hardman did not put his deed on record until 1902, nearly four years thereafter, and did not have the quantity of land corrected on the land books. It was the owner’s fault that the correct quantity did not appear.
It is urged that the invalidity of the tax deed, for want of authority in the sheriff to sell, can not be relied on here as cause for reversal, because that matter was not averred in the bill, and the attention of the lower court was not directed to.it. This point is well taken. The want of authority to sell depended on a fact which had to be established in some way, and it is a familiar rule of pleading that every fact, material to.plaintiffs’ case, must be alleged; pleading must precede proof. Belief may be granted upon pleading when not denied, without proof, but never upon proof without pleadings. Plaintiffs do not specifically aver that the sale was made at a time not authorized by law. and counsel for defendant insist that, therefore, the bill is bad, and that the demurrer should have been sustained. The bill attacks the deed on two alleged grounds only, viz: (1) Mis-description of the land, and (2) because they were misled into believing the land liad been redeemed, on account of the word "Bedeemed”, and the ditto marks under it, appearing on the list of sales filed in the cleric’s office. The bill then contains the following general averment, viz: "for the irregularities aforesaid and other irregularities appearing upon the face of the record of the proceedings in the office of the clerk of the county court aforesaid”, etc. This averment is too vague, general, and indefinite to be denominated good pleading. The’ particular fact relied on should be averred. That a part of the record of
“A bill to set aside a tax deed for defects in the proceedings under which it was sold must point out those defects.” State v. McEldowney, 54 W. Va. 695, (Pt. 9 Syl.), and authorities cited on page 702. Hogen v. Piggott, 60 W. Va. 541. But, inasmuch as plaintiffs’ documentary evidence exhibited with their bill, in connection with the fact that there was a February term of circuit court in Gilmer county, which we judicially know, proves a case which would entitle, them to relief, if the matter thus established had been properly pleaded, we will reverse the decree, sustain the demurrer and will remand the cause, with leave to plaintiffs to amend their bill to conform to the proof. The case being good as to proof, and bad only as to pleading, the court erred in dismissing the suit, without first giving plaintiffs leave to amend. Cecil v. Lamb, 25 W. Va. 288; Lamb v. Laughlin, Id. 300; Doonan v. Glynn, 26 W. Va. 225.