39 W. Va. 332 | W. Va. | 1894
On the 11th day of November, 1879, O. A. Snodgrass became the purchaser of a tract of land containing thirty acres, and situated in the county of Marion, at a sale of delinquent lands made by the sheriff of said county, and on the 29th day of December, 1880, John B. Crane, clerk of the County Comí of said county, executed and acknowledged to said C. A. Snodgrass a deed for said tract of land. This tract of land was returned delinquent as the property of E. C. Snodgrass for the year 1878. In the early part of the year 1881 the said C. A. Snodgrass took possession of said tract of land under his deed from the clerk of the County Court, and remained in possession, paying the taxes assessed thereon until March, 1888, when one Solomon Knox took the possession thereof under authority from one Morgan Billingsley. E. C. Snodgrass was in possession of said tract of land at the time the -sale was made, and had been since the spring of 1874.
On the 3d day of August, 1881, C. A. Snodgrass filed his declaration in ejectment in the Circuit Court of said county against Margaret II. Hawkinberry and Y. W. Hawkinberry for the recovery of said tract of land, and during the pend-ency of said action óf ejectment, to wit, on the first Monday in December, 1891, the said Margaret II. Hawkinberry and Y. W. Hawkinberry filed their bill in equity in said Circuit Court against said C. A. Snodgrass, alleging that on the 14th day of June, 1889, the plaintiff Margaret R. pur-purchased from one Morgan Billingsley a certain tract or parcel of land in said county of Marion on the waters of Pyles fork of Buffalo creek, consisting of thirty acres more or less, for the sum and price of six hundred dollars, and that plaintiffs took possession of said tract of land at the time of purchase and had ever since had the exclusive possession of the same and paid the taxes on the same ever since the said purchase; and that they were aid vised and believed that the said Morgan Billingsley, who owned the land prior to the said purchase by
An injunction was awarded as prayed for by J. M. Iiagans, judge of the Circuit Court of Marion county, on the 9th day of November, 1891.
On the 10th day of December, 1892, the defendant C. A. Snodgrass moved the court to dissolve the injunction awarded in said cause and also tiled his answer to the plaintiff's’ bill, in which he admits that said land was conveyed to Margaret R. Hawkinberry by a paper purporting to be a deed; that said laud was charged on the land-books of said county to said Billingsley in the year 1886 aud not before that year; he denies any irregularity in the sale of said thirty acres of land; he admits that said delinquent salé was made by the deputy sheriff, while his deed recites it was made by the sheriff, but he claims that the variance is immaterial, and that neither the plaintiff's nor their grantor were prejudiced thereby; he puts in issue all the material allegations of the plaintiff's’ bill, and insists that the plaintiffs have no right to question said tax-deed made by the clerk of said County Court nor the sale in pursuance of which the said deed was made, nor any record or official act connected therewith.
The deposition of C. A. Snodgrass was taken in the
The first error assigned by the appellants is, that neither the said Margaret R. Ilawkiuberry and V. W. ITawkin-berry nor either of them nor the said Morgan Billingsley, their grantor, have or had any right to question the said tax-deed from the clerk of said County Court to the said C. A. Snodgrass, nor the sale in pursuance of which said deed was made, as the record shows that said plaintiffs and also said Billingsley were mere intruders upon said land.
blow the delinquent sale at which the appellant became the purchaser of said thirty-acre tract of land, appears to have been made in the month of bTovember, 1879, and the deed to him from the clerk of the County Court bears date on the 29th day of December, 1880; that the title to and possession of said tract of land was in one E. C. Snodgrass from the 30th day of March, 1874, and the laud was forfeited in his name for the non-payment of the taxes for the years 1877 and 1878. The only title, upon which the plaintiffs rely, is a deed bearing date the 14th day of June, 1889, from Morgan Billingsley and wife to Margaret iiawk-inbcrry, in which it is recited, that it is the same land conveyed by Raw ley Morris, trustee to said Morgan Billings-ley, by deed dated June 2, 1884; and, if any weight is givcu to this recital, the said plaintiff or those under whom she claims do not appear to have had any claim to this land until nearly five years after the delinquent sale, under which C. A. Snodgrass became the purchaser.
Section 29 of chapter 117 of the Acts of 1872-78, which corresponds with section 29 of chapter 31 of the Code in many respects, provides : “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
At the time this tract of land was sold in 1879 there is no pretense that Margaret R. Iiawkinberry or those, under whom she claims, were owners either legal or equitable of said tract of land. At that time and for years afterwards they must be regarded as entire strangers to the title, and in fact they have in no manner as yet shown any privity with the title that was forfeited and sold at the delinquent sale in November, 1879. So far as appears from the record, neither Margaret R. Iiawkinberry nor any person, under whom she claims, ever had any right to redeem said real estate so sold; for section 15 of chapter 117 of the Acts of 1872-78'provides, that the owner of any real estate so sold, his heirs, assigns or any person having a right to charge such real estate for a debt may redeem the same by paying to the purchaser, etc., and section 29 of the samo chapter provides, that “in all eases, 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, etc., and all other persons who might have redeemed the same, etc., an d. conclusive evidence against all other persons, etc., * * * that such estate as is mentioned in the 25th section of this chapter vested in the grantee of the deed,” meaning the title that was vested in the party assessed with the taxes, for which it was sold, etc.
The only question for our consideration in this case is as to the propriety of the decree complained of. ITad the plaintiff any right to have the deed from the clerk of the County Court of Marion county to C. A. Snodgrass for said thirty-acre tract of land canceled and set aside and de-
High on Injunctions (volume 1, § 415) states the law in regard to equitable interference with proceedings at law as follows: “Where, therefore, complainants are in possession of real estate, they can not enjoin defendant who is out of possession from prosecuting an action of ejectment against them for the recovery of the premises upon the ground that the deed under which plaintiff claims is absolutely void, either for want of delivery and acceptance or because
In this case Margaret R. Iiawlcinberry being neither the legal nor equitable owner of the title to said real estate, at the time it was sold, and not having been entitled to redeem the said land within one year, as provided by statute, said deed could not be regarded as prima facie but must be considered conclusive evidence against her, that the material facts recited in said deed are true, and that such estate was vested in th,e grantee, as was vested in the said E. C. Snodgrass at the commencement of or at any time during the year or years, for which said taxes were assessed, and in auy other person or persons having title thereto, who have not in his or their own name been charged on the assessor’s books of the proper county or district with the taxes on said real estate for the year or years, for the taxes of which the same was so sold, and actually paid the same as required by law.
Black in his valuable work on Tax Titles (§ 452) gives a clear and lucid statement of the law on this point. Under the heading, “Extent of Legislative Power to make Tax-Deed Conclusive,” he says: “But, keeping in mind the general control of the legislature over remedies, and its power to validate irregular or defective proceedings where the act omitted was one which the legislature might have dispensed with in advance, or where the irregularity consists in something which it might have declared immaterial, it will be evident that there are some points in the tax proceedings in regard to which the deed may be lawfully made conclusive; for, if the legislature has power to obviate these objections by a retroactive curative statute (which can not be doubted) it plainly has power to accomplish the same result by making the tax-deed conclusive. It is immaterial what means are employed. What the legislature may do in oneway it may do in another. In both cases the power is present and the end is identical. The rule may therefore be stated as follows : Any statute is unconstitutional which attempts to make a tax-deed conclusive evidence as to jurisdictional facts, or facts vital to
This doctrine has been well set forth and explained in a recent decision of the court in Louisiana, from which we quote as follows: “ There are, however, certain requirements absolutely essential to constitute a valid exercise of the taxing power, without which no tax-sale could be validly made. The chief of these indispensable requirements are : — First, that a tax has been levied; second, that the property sold is subject to taxation; third, that the property has been assessed; fourth, that the taxes had not been paid; fifth, a statutory warrant for the sale ; sixth, a sale made under such warrant. Any statute authorizing the sale of a man’s property for taxes which had not been levied, or where the property was exempt from taxation, or where the property had not been assessed, or where the taxes had been duly paid, would unquestionably be a taking in excess and outside of the taxing power, and such taking would not he with due process of law.”
So, any statute which would attempt to cure such substantial defects, or should attempt to debar the owner from proving, in defence or assertion of his right, that a pretended tax-sale was wanting in any of the essential prerequisites, would violate the constitution, and could not be enforced. But, outside these fundamental and quasi jurisdictional requirements, and with reference to the time and manner in which the tax proceedings shall be conducted, the legislative discretion is supreme andean not be judicially controlled. As the legislature may in advance prescribe and direct the time and manner, in which these things shall he done, it may likewise provide, that failure to comply with such direction shall not defeat the sale, and may constitutionally provide; that the tax-deed shall be conclusive evidence that such directions were complied with as to time, manner, and every other matter originally within the legislative direction. Broadly stated the doctrine is that the legislature may make the tax-deed conclusive evidence of compliance with every requirement, which the legislature
The same author, in § 430, under the head of “Parties Plaintiff,” says: “It may be regarded as settled that the right to bring suit for the purpose of setting aside a tax sale, and having the deed declared void, is not confined to the original owner of the land, but may be exercised by his mortgagee or other creditors, aud, we presume, by any person who can show such an interest in the estate as would have entitled him to redeem” — citing Miller v. Cook, 135 Ill. 190 (25 N. E. Rep. 756) where the same thing is field.
This ruling, as we have seen, is in accordance with our statute; and the plaintiff’in this case not having shown herself to be either the owner of the title to the real estate in controversy, at the time the same was sold, or for any other reason entitled to redeem said tract of land, my conclusion is that the plaintiff in said bill was not entitled to have said tax-sale declared null aud void for irregularities and omissions of duty of the officers making the same, or to enjoin the said C. A. Snodgrass from prosecuting said action of ejectment, and the decree complained of must be reversed, the injunction dissolved, and the plaintiff’s bill dismissed with costs, etc.