60 W. Va. 541 | W. Va. | 1906
Lead Opinion
On the 10th day of October, 1905, the circuit court of Wood county dissolved an injunction, previously awarded to John Hogan, suing as administrator of the personal estate of Laura Layne, deceased, and as special commissioner, appointed in a certain chancery cause, on his bill against J. T. Piggott and James A. Watson and others, the object of which was to set aside a tax deed, made by the clerk of the county court of said county to said Piggott and Watson, conveying to them part of a certain lot in the city of Park-ersburg, known as Lot No. 76, on Market street, pursuant to a sale thereof made by the sheriff of said county, for nonpayment of city taxes thereon for the year 1899, and to restrain said Piggott and Watson from prosecuting an action of unlawful detainer for the recovery' of the possession of said lot, and dismissed the bill. upon final hearing. From this decree, the plaintiff has appealed.
All these facts are alleged in the bill and not denied by the answer. In response to the allegations setting them up, the respondents Piggott and Watson, say, for the most part, that they are not advised as to whether they are true or false. Such of them as are favorable to the defendants are admitted. Belying upon section 36 of chapter 125 of the Code, providing that “every material allegation of the bill not controverted by an answer * * * shall, for the purposes of the suit, be taken as true,” and no proof thereof required, the plaintiff introduced no evidence to sustain the allegations not denied. If the protestations of want of knowledge of their truth had been accompanied by a general denial, it would have devolved upon the plaintiff to prove the facts, but a mere averment of want of personal knowledge is not a denial of the allegations. A general denial of all material allegations will be sufficient, if not excepted to. Richardson v. Donahoe, 16 W. Va. 686; Warren v. Syme, 7 W. Va. 475;
The attempt of counsel for the appellees to sustain the decree on the ground of want of power and authority, in the plaintiff as administrator and special commissioner, to maintain a suit for the purpose of setting aside the tax deed makes some of these facts very important and material. It thus appearing that the plaintiff’s decedent, by successive conveyances from the Gould estate, owned the lot at the time of her death, which occurred before the sale thereof, and that the personal property of which she died possessed was insufficient to pay her debts, in consequence whereof her general creditors, by virtue of section 3 of chapter 86 of the Code, making the real estate of decedent’s assets for the payment of their debts under such circumstances, could have charged her real estate for their debts, had it not been sold, and, .at any time within one year after the sale, could have redeemed, as persons having the right to charge the lot for debts, by virtue of section 15 of chapter 31 of the Code, it is insisted by counsel for the appellant that he, being authorized by section 7 of chapter 86 of the Code to institute a suit in equity to subject the real estate of his decedent to the payment of her general debts, has sufficient interest to entitle him to sue for the cancellation of the tax deed which constitutes a cloud upon the title, if invalid. In a sense, he has the right to charge the real estate of his decedent for a debt. He sues to subject it to the payment of the debts of all the creditors. He does not sue on account of any debt he has against the estate, but for the purpose of administration of the real, as well as the personal, assets of his decedent. Though he does not sue to charge it with his debt, he charges it with a debt, nevertheless. He has a double duty to perform, one of which is to discharge the valid indebtedness of his decedent, and the other to resist all invalid claims against the estate. Though in respect to claims of the latter class he defends and resists payment, in respect to the former he prosecutes and charges the land. In doing so he virtually ties the hands of the creditors; for, after the commencement of any such suit, if any creditor commence another, either
Suits to set aside void tax deeds are usually brought by the owner of the property, and there are few instances in which creditors have instituted suits for that purpose; but, as such a deed, when so defective, as to render it vulnerable to an attack, is treated as void, no reason is perceived why any person interested in the property may not, in a proper proceeding, cause it to be set aside. Since sales for nonpayment of taxes are purely statutory and the extent to which they destroy liens on the property sold and interests therein depends upon the statutory provisions relating to the subject, resort must be had to them to determine who are interested persons, not barred. When it appears from an examination of the statutes that the interests of certain persons are saved or are not barred and cut off by the proceedings, the courts must necessarily be open to them for the vindication of their rights. There must be remedies for vindication of sub
The grounds of .attack upon the deed are irregularity in the return of delinquency. These, or some of- them, are such as would, on common law principles, probably render the deed void; but if the curative provisions of section 25 of chapter 31 of the Code extend to irregularities in returns of delinquency by city collectors, the inquiry will be whether or not the defects are cured by the provisions of that section. It becomes necessary, therefore, to determine, first, whether said section is applicable to defects in such return, and, if so, second, whether the particular failures and omissions charged in this case are cured by said section.
The curative section provides that the deed, made by the clerk of the county court, pursuant to a sale for non-payment of taxes, shall vest in the grantee the title which the law makes such a deed pass, “notwithstanding any irregularity in the proceeding 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.”
Delinquent lists returned by sheriffs and relating to state, county and district taxes on real estate must be recorded by the clerk of the county court ‘in a well bound book to be kept by him for the purpose.” Chapter 30, section 21, Code. Such a |ist becomes a part of the “proceedings of record in the office of the clerk of the county court. ” The law makes no such express provision concerning city collector’s list of
At a later step in the proceedings relating to sale for delinquency as to city taxes a record is made in the clerk’s office of the county court, by express statutory requirement, but it is the record of the sale, not of the return of delinquency. After city delinquencies have been certified to, the auditor, he puts the delinquent city real estate in the same list for sale with the land returned by the county collector, and, if there be state, county, district and city taxes due on a given parcel of land, he makes one entry in the list on ac-county of it, charging all the taxes therein, and the sheriff makes one sale of that piece of property for all the taxes. If the only taxes due are city taxes, the land is entered in the auditor’s list to the sheriff with the city taxes only charged, and the sale is made by the sheriff although there are no state, county or district taxes as to which it is delinquent, áiter completing the sale, the sheriff makes a list of all the sales and returns it to the office of the clerk of the county court in which it is recorded in a book kept for that purpose, and thereby becomes part of the “proceedings of record.”
As to so much of the proceedings relating to the sale of real estate, delinquent in respect to city taxes, as becomes part of the proceedings of record in the clerk’s office of the county court, the provisions of section 25 of chapter 31 must apply, unless we can say, contrary to the letter of the statute,
The crucial question is whether, in contemplation of law, city collectors’ lists of delinquent real estate are parts of the proceedings of record in the clerk’s office of the county court. In other words, does the law require recordation of them in said office? There is no express direction in the statute to the city clerk, mayor or council to certify copies thereof to the clerk of the county court, or to the clerk of the county court to record them; but the legislature may nevertheless have so intended and its intent may be made manifest by some language it has used when interpreted in the light of the spirit of the statutory system relating to taxation and land titles.
Authority granted by the legislature to municipal corporations to sell real estate for non-payment of municipal taxes thereon, is power to change the status and ownership of land titles. For the protection of creditors and purchasers, a system of registration of the muniments of titles and proceedings affecting them has been devised and put into operation, and that registration takes the form of recordation, in the clerks’ offices of the county courts, of all deeds, wills, liens and other documents by which alienations are made, lands encumbered and titles affected or impaired. It has been wisely ordained that, for such purpose, there shall be but one such place in each county. Since the returns of real estate as delinquent for non-payment of taxes, by county collectors, become the basis of sales thereof, the legislature
Nor is it to be assumed that the legislature intended to make its curative statute applicable to part of the proceedings relating to the sale of real estate for non-payment of city taxes, and not applicable to other parts of the same. Reasons have been given for the conclusion that the sheriff’s list of sales for city tax delinquency becomes part of the proceedings of record in the clerk’s office of the county court, and is subject to the operation of the curative statutes. It is not returned by the sheriff elsewhere than to said clerk’s office. Being so returned and recorded there, it is, tested by the letter of the statute, part of said proceedings. The reasons which impelled the legislature to make it ■ so ought to have produced a like result in the case of the delinquent list. Otherwise inconsistency on the part of the legislature would be obvious. It could only be explained on the theory of in inadvertency or an intention to make the remedy practically useless in the hands of municipal corporations. Such a conclusion cannot be adopted otherwise than as a last and inevitable resort.
It is to be observed also that section 25 of chapter 31 of the Code, a statute applicable to tax deeds generally, no
Giving due effect to the general policy of the law as just stated, we must ascertain from the very general, and somewhat indefinite, language of the clause quoted from section 36 of chapter 47 of the Code, what the legislature intended. It does not in terms direct or require the preparation or return of any delinquent list, but it assumes that such returns will be made and such lists prepared, and authorizes sales based thereon. This necessarily gives, by implication, the power to so return real estate and make the lists. It does not define a delinquent list nor prescribe the requisites thereof. In order to determine what a delinquent list is within its meaning, it must be connected, in some way, with other statutes which do define delinquent lists, and prescribe the form thereof. There is no express directions in it to the clerk of the county court or any other officer to make a deed, conveying real estate sold for such delinquency; and yet his authority to make such deed cannot be doubted. It must be found in this statute, taken in connection with the statutes relating generally to sales of delinquent lands. The necessity of giving this provision a broad and liberal construction and reading into it, by implication, many of the provisions of the general statute, is thus clearly apparent. How far can this process be carried ? As far as may be necessary to effectuate the manifest intent of the legislature. Is there any language in the provision itself which seems to authorize recordation of the delinquent list in the office of the clerk of the county court? It says: “The same may be sold for the taxes, interest and commissions thereon, in the same manner, at the same time and by the same officer as real
The first ground of attack upon the deed is, in substance,
The second -objection is that the list was certified to the auditor of the state by the city clerk, without any direction from the council to so certify it. Although the charter of the citjq in force at the time the list was certified to the auditor, required the certificate to be made by the mayor, it seems that an ordinance of the city required the clerk to do so by direction of the council. This was not in conformity with the charter, nor was there any direction to the clerk, if it had been, to make the certificate. Counsel for the appellant insist that this certificate was made without authority, and is, therefore, void. Since both the law and the ordinance of the city contemplated and authorized such certificate to be made, and there was no departure except in respect to the officer who made it, it is by no means clear, that, although void when tested by the law, such certificate will not, under the operation of the curative provisions of the statute, sustain the tax deed. Many very grave defects and irregularities have been held by this Court to be insufficient to overthrow a tax sale after the deed has been made. Such sales have been upheld, under such circumstances, despite the positive and emphatic declaration of the legislature that a certain omission of duty on the part of an officer should render the sale absolutely void. State v. McEldowney, 55 W. Va. 1; Winning v. Eakin, 44 W. Va. 18; Boggess v. Scott, 48 W. Va. 316. In view of the the virtue and power thus accorded to the curative statutes, and The conclusion that they are applicable to sales of real estate for delinquency as to the city taxes, we conclude that this irregularity is not sufficient to invalidate the deed.
The last objection is the delay of one year in making and certifying the return of delinquency. Under the principles declared by this Court in Imboden v. Hornage, 57
As to whether the delinquent list was ever recorded in the the clerk’s office of the county court, the bill .is silent. For aught that the Court can see, it was so recorded. However, as a matter of fact, it may not have been and probably was not. But the bill does not attack the deed on the ground of the want of such recordation. The deed is prima facie evidence that the material facts therein' recited are true and that such estate as is mentioned in the twenty-fifth section of chapter 31 of the Code vested in the grantee. While the deed is not conclusive evidence of such facts or the vesting of such estate, and may be contradicted and overthrown, it casts upon the plaintiff the burden of showing wherein it is false and contradicting by proof the recitals thereof and the presumption of title in the grantee. It is the uniform practice in this State, to charge, by the bill, the particular defect or failure of duty upon which the plaintiff relies as cause of impeachment, when he attacks the deed in equity, and of course, he must sustain the allegation by proof. When the validity of the deed comes in question in an action of ejectment, the defect "is not specially averred in any pleading, but it must be proved, else the deed will control. Duquasie v. Harris, 16 W. Va. 345. In Mosser v. Moore, 56 W. Va. 478, 482, Judge Brannon, speaking for the Court, said: “ Likely, as the deed recites the lots were delinquent and sold, we have to say that some delinquent list and sale list was made and
For the reasons stated, the decree complained of will be affirmed.
Affirmed.
Dissenting Opinion
(dissenting:)
I cannot agree that delinquent lists of municipal taxes must be certified to the county clerk’s office.