54 W. Va. 441 | W. Va. | 1903
M. S. Holt filed his bill in the circuit court of Lewis county against John King, W. W. Brannon, and B. A. Bennett, clerk of the county court of Lewis county, for the purpose of setting aside a tax sale of 100 acres of land to said King, and the assignment thereof made by him to said Brannon, and to prevent the clerk of the county court from making a deed therefor. Plaintiff bases his right to maintain this suit on the fact that he has a purchase-money lien against the land, and therefore had the right to redeem the same, but he does not seek to enforce such purchase-money lien. It appears, however, that there are suits pending already in which this may be done. The prayer of this bill is that plaintiff “may be awarded an injunction against the said E. A. Bennettt, clerk of the county court of Lewis county, restraining him from making such deed to said W. W. Brannon, and that said W. W. Brannon may be enjoined and restrained from taking such deed or further proceeding to obtain the same, and that he may have a decree declaring the said land redeemed, and the said assignment canceled and annulled, and that he have his costs, and such other, further, and general relief as the court may see fit to grant.” Defendant Brannon appeared, entered a demurrer, and filed an answer to the bill, claiming that he purchased the land, and did not redeem it, and denying the right of plaintiff to the relief prayed. Depositions were taken by both parties, and on a final hearing the court dismissed the bill.
Plaintiff admits in his bill that he knew of the delinquency
The controversy therefore narrows itself down as to whether defendant Brannon redeemed or purchased the land, and, if the former, whether- plaintiff has the right to maintain this suit to have such redemption declared, or to be permitted to redeem such land. A lien creditor, under section 15, chapter 31, Code 1899, has the privilege of redemption; but he is under no obligation to do so, and may waive such privilege and become a purchaser. But he cannot do both at the same time. That is, he cannot take advantage of the right to redeem in so far as the purchaser at the delinquent sale is concerned, and yet claim to be a purchaser in so far as the land owner or other lienors are concerned. A redemption, by whoever made, inures to the benefit of the land owner, and hence to all lien creditors, as it relieves land from tax delinquency, as though it had never occurred. While a purchase deprives the landowner and all other lien-holders of a.ll claim or title to the land, unless redeemed within the limit fixed by law. It would therefore be unjust to allow a lienholder, or even one claiming to be a lienholder, to compel the tax purchaser, by virtue of the statutory privilege, to submit to a redemption of the land, and yet convert it into a purchase, as to the owner and other lienors, by taking a secret assignment of the tax purchaser’s rights. An open, assignment is proper to secure to the lienor the right to hold the amount of taxes as a lien upon the land, or even to take the title in trust for this purpose, but not to give the lienor taking advantage of his statutory privilege of redemption the right to hold absolute title to the property. The defendant Brannon, in his evidence, states the manner in which he obtained from the tax purchaser an assignment of his rights as follows, to-wit: “I talked with Mr.
It is insisted, however, that Brannon owed no duty to Holt in connection with the matter, and that he had the right to redeem or buy without consulting Holt. This is undoubtedly true, if the transaction was open and free from any charge of fraudulent concealment or redemption to deprive Holt of his right of redemption. The indisputable facts in the case are as follows: Holt held a lien on the land in controversy for $1,700 far more than its value. Brannon held an individual lien subsequent to Holt’s and which could not be reached if Holt’s lien remained. King purchased the land at tax sale. Brannon insisted he had the right to, and would, redeem the land either from King or Holt. Holt informed King he wanted to purchase from him if it would be legal, and, if not, he wanted to redeem the land. King informed Holt that Brannon was going to redeem the land. On the same day King went to Brannon to let him redeem the land, when Brannon presuaded King, in the presence of Zinn, his clerk and typewriter, to make him an assignment of his purchase for the amount necessary to redeem the land — in the assignment recited “for valuable consideration.” Zinn, Brannon’s clerk, under Brannon’s direction, prepared the assignment, and, being a notary public, took the acknowledgment of King and his wife thereto. This all occurred on the 26th of December, 1901, and the time for redemption expired on the 1st day of January, 1902. No one knew of this assignment but the parties thereto and Zinn, Brannon’s clerk. It was not put
The undisputed facts in this ease show that Ilolt has been deprived of his property by the concealment of the truth from him after he had been misled by the conduct and representations of those who have deprived him of the same, and one of whom enjoys the full benefit of his loss, and retains the same after full knowledge of the wrong suffered. “Fraud has been defined to be any kind of an artifice by which another is deceived.” Pothier, cited 1 Mad. 205. All surprise, trick, cunning, dissembling, and other unfair way by which another is cheated is fraud. Collusion, in a court of equity,'is fraud. 3 Atk. 757. In short, “fraud is infinite.” 2 Tuck. Com. 411. The suppression of the truth is equivalent to the utterance of a falsehood, and both are frauds. 2 Tuck. Com. 415. There is no question but that King is guilty of fraud, in a legal sense, by concealing from Holt the assignment made by him to Brannon. If a person malee a representation that is true, and afterwards he renders such representation false by his own act, and another is about to be deceived thereby to his injury, he is guilty of fraud, unless he corrects the delusion produced by his former representation. 14 Am. & Eng. En. Law (2d Ed). 74. In Dickinson v. Colgrove, 100 U. S. 580, 25 L. D. 618, Mr. Justice Swaync says: “The vital principle is that he who by his language or conduct leads another to do what lie would not otherwise have done shall not subject
King is guilty of legal fraud, yet he derives no benefit therefrom. Why he concealed from Iiolt the fact of the assignment is a matter of legal inference from the effect thereof, as there is no positive testimony showing the reason therefor. If Holt had been given the opportunity, which was denied him, of cross-examining Brannon’s witnesses, this matter might have been made plain. Brannon claims to be wholly innocent, yet he receives, and after full knowledge retains, the benefit of King’s fraud. In section 211, Perry on Trusts, it is written: “So property obtained by one through the fraudulent practices of a third person will be held under a constructive trust for the person defrauded, though the person receiving the benefit is innocent of collusion. If such person accepts the property, he adopts the means by which it was procured, or, as Lord Chief Justice Wil-mot said, ‘Let the hand receiving the gift be ever so chaste, yet, if it comes through a polluted channel, the obligation of restitution will follow it.”’ Dewing v. Hutton, 48 W. Va. 576, (37 S. E. 670). When Brannon found out the manner in which Holt had been deceived, if he wished to relieve himself from the many imputations of collusion apparently justified by the facts and circumstances of thife case, and place bis conduct above suspicion, he should have promptly afforded the opportunity to Holt to have redeemed the land, and not have waited for the interference of the'court of equity. Whether he loved his enemy or not, ho should have meted out to him even-handed justice. It was the duty of King to have'relieved Holt from the delusion under which he was laboring by reason of the former’s representations, and it was the duty of Brannon, who profited by such delusion, when he became cognizant of the manner in which Holt had been deceived, to offer him proper restitution. Holt having in this manner been deprived of his right of redemption, equity will hold that the assignment was nothing more than a redemption, and will enjoin the clerk from making a deed to the purchaser’s as-signee. Nor will it be necessary for the plaintiff to make a tender and keep it good, for he was prevented from so doing during the redemption period by the conduct of the purchaser and
AVhile the allegations of the bill are not as specific as they might be, yet they are sufficient to justify the relief sought. They set out sufficient facts to show the fraudulent conduct of King, inuring to Brannon’s benefit, and that Brannon intended to retain the same to the injury of the plaintiff.
Nor has plaintiff been guilty of such laches as would bar his equity. The evidence shows that Brannon only redeemed the land, and that ho induced the purchaser to make an assignment, which, if enforced, operated to deprive plaintiff of his vendor’s lien, which was kept concealed from ITolt until the time of redemption had passed.
In some states notice is required in all cases before a redemption can be precluded. Black on Tax Titles, section 329. Equity requires notice where the proposed redemptioner is about to be misled todris injury by the representations of the purchaser in collusion with other redemptioners. If Brannon had notified Holt, or directed King to have notified him, in time for redemption, he would have received his outlay back, with interest, or. if he had offered to have permitted Holt to redeem, even after this suit was brought, he would have been entitled to be remunerated for his outlay; but, as he stands on his legal rights, he is entitled to no more.
On the solicitation of Mr. Brannon through his counsel, this opinion has been revised the third time. He disclaims all disposition to wrongfully deprive Mr. Holt of his property, and that if he has been guilty of any wrong in the matter, which he in no wise admits, it'is a mistake as to his legal rights. He is entitled to the full benefit of such disclaimer.
The decree is reversed, the assignment held a redemption of the land, and the injunction perpetuated.
Reversed.