57 W. Va. 206 | W. Va. | 1905
Six tracts of land, in all six hundred and thirty-six acres, were sold in 1897 for taxes for 1895 and 1896, in Fayette county in the name of Gersham Bulkiest and purchased by G. W. Imboden and J. R. Koontz, and George Homage and H. Y. J. Swain, claiming as owners of the land under Bulk-ley, brought a chancery suit to set aside the tax deed made under said tax sale, and the court haying dismissed the bill Homage and Swain appeal.
One ground of assault upon the tax deed is, that the sheriff did not make out and swear to the delinquent lists before the first Monday in June as required by section 18, chapter 30, Code 1887, but delayed so doing until August. From this it is argued that there were legally no delinquent lists, and no delinquency. State v. McEldowney, 54 W. Va. 695, holds that this defect is cured by Code, chapter 31, section 25, and close of opinion in Starr v. Sampselle, 47 S. E. 258.
Another ground of assault on the tax deed is, that the delinquent lists were not posted as required by Code, section 20, chapter 30. The only evidence of such failure is that the affidavits to the lists are dated 6th and 23rd of August, the same date of their presentation to the county court, and it is thence inferred that the lists had not been posted before those dates. It may be, and likely is, the case that they were posted before being sworn to. I hardly think this would matter,, as they would be notice. By section 14, chapter 55, Acts 1875, it is provided that the list should be posted “after being verified as aforesaid;” thus requiring a sworn list to he posted; but section 20, chapter 30, Code 1887, providing for posting, has no such provision. Chapter 13, Acts 1881, left that clause out, and it has ever since been out. The ■change means something. It does not seem probable that
Another ground of assault on the deed is, that the sheriff did not return the delinquent lists to the July term of the county court, that being the levy term, as required by Code, chapter 30, section -21. I think that as this relates to the time of the return, it is an irregularity in the “return” of the delinquent list cured by the letter of section 25, as held in State v. McEldowney. It says that “no irregularity, error or mistake in the delinquent list, or the return threreof, or the affidavit,” shall invalidate or affect the deed. We may surely say that the act of delivery of the list to the court is a part of the act of the “return” of the list, and the omission to make the delivery to a particular term of court is covered by the words “irregularity, error or mistake.” Those words signify an assiduous intent to cure such a defect. It could not be plainer, unless the law should say in words that failure to return at a particular term- should not harm the deed.
Another ground for assault upon the deed is, that the delinquent lists were presented to the county court at a special term in August, and that the call for it did not embrace action upon such lists. It is contended that the delinquent lists •were never approved by the county court, and therefore there .were never any legal delinquent lists, because the court which acted upon them was without jurisdiction to act upon them. It is true that it has been held that a special session of a county
Another ground of assault upon the deed is, that the sale report does not show the date of sale. Code, 1887, chapter 31, section 49, does not require the list of sales to show the day of sale. The sheriff seems to have used a form formerly used giving a column headed “date of each sale,” the law formerly requiring that column; but the form given in the statute as it Avas at the date of this sale did not contain that
Another ground of assault on the deed is,, that the sheriff failed to append an affidavit to the sale list. This is predicated on the sole ground that the notary’s certificate does not show of what countjr he is a notary’ has no venue of county, and does not show that the oath was administered in his county. Why this objection? The letter of section 25 says that no defect in the affidavit will avail. But without regard to the statute^ it is doubtful whether the affidavit is bad. Want of venue does not destroy an affidavit, if it appear of what county the notary is an officer. Kesler v. lapham, 46 W. Va. 293. The list is a sale list for Fayette county, and the affidavit recites that McVeyis sheriff of that county, and we can look to other parts of the paper than the jurat to collect of what county Tansill was notary. Carpenter v. Dexter, 8 Wall. 513, 529. But very plainly this error is cured by the .statute.
We will affirm the decree.
Affirmed.