87 W. Va. 643 | W. Va. | 1921
Lead Opinion
The decree reviewed for error denied the relief prayed for,
Although the bill purports to file certified copies of .Mrs. Lambert’s deed to the plaintiff and the sheriff’s deed to Mary. E. Kimbrough as exhibits Nos. 1 and 2, neither of them is in the record; nor is there any other exhibit of any kind in it.
The use of the term, Norena Lambert, instead of the true name, Norma E. Lambert, in the sheriff’s published list of property to be sold by him for unpaid-taxes, is an irregularity in the proceedings which is cured by section 6, ch. 31, Code. That statute provides that “no sale of any such real estate as is spld by such sheriff, as aforesaid, or deed therefor to the purchaser thereof, shall be, in any way or manner, affected by reason of any mistake in the publication or posting of such list or notice, * * * as to the name of the owner, * * * or otherwise.” It expressly includes within its curative function the alleged defect with which we are now dealing — a “mistake in the publication as to the name of the owner.” In support of this conclusion it is necessary to cite as additional authority only I-Hamill v. Glover, 74 W. Va. 152, where the notice of sale stated the owner’s name to be V. May Fitchner instead of V. Mae Fitchner; Gauley Coal Land. Co. v. Koontz, 77 W. Va. 583; and Matheny v. Jackson, 83 W. Va. 553.
But the bill further charges the existence of the same misnomer in the delinquent list and return thereof recorded in the office of the clerk of the county court. With respect to
. We are not now dealing with a misstatement or misnomer in the assessment list, which is of a different and more serious nature. In order to support a tax sale and deed based thereon, “there must be a valid assessment — one that will impart full notice to the owner or taxpayer and make the proceedings due process of law.” Male v. Moore, 70 W. Va. 448. In the case cited, the assessment relied on was in the name of Hoonbrook, when the owner’s true name was Hombrook, and the court held that to be such a variation as avoided the sale, saying at page 449: “Of course, errors in the delinquent list and subsequent proceedings are cured after the deed is made; but the error in the assessment is covered by no such curative statute.” There is a similar holding in Collins v. Reger, 62 W. Va. 195, where the owner’s name was Martha Helmick, but the assessment list incorrectly stated it to be Martha Hedrick. However, even where assessments are involved, not every departure from the true name will avoid the sale, for in Friedman v. Craig, cited, an assessment in the name of Joseph Freedman was held not to be a material departure from Joseph Friedman, the correct name.
It may be urged by appellant, however, that even though the statute quoted appears to be sufficiently broad to cure the mistake in the delinquent list, yet where the variation from the true name is so material as to be seriously misleading, it will not be held and considered as falling within its curative provisions. The statute, however, imposes no such limitation or •restriction. Its language is general and inclusive. But in support of his contention, appellant may cite the first portion of the same section (section 25, ch. 31), which vests in a purchaser at a tax sale, who has obtained and recorded his tax
But to this contention two answers may be made: (1) That the irregularities, to which the quotation refers are only those ‘ hot herein provided for,” whereas there is in the same section express special provision for irregularities in delinquent lists and returns, which we have heretofore quoted and discussed; (2) the irregularity involved in this case is not one that is misleading in any of the three aspects contemplated by the statute, i. e., as to the portion of the real estate sold, the year or years during which the delinquency occurred, and the purchaser’s name, but only as to the name of the owner. Hence there is no basis justifying resort to the provisions just quoted. And even if there were, plaintiff has not, in his bill, met the final requirement of that portion of the statute, by an allegation to the effect that, “but for such irregularity, the former owner of -such real estate would have redeemed the same.”
Bht as a matter of fact, the designation, Horena Lambert, is not seriously misleading. The family name is the same in both instances, and there is such similarity between the Christian names as to arrest attention and lead to an investigation to determine the identity of the taxpayer. And it is only fair to assume, from the allegations of the bill, that the description of the property is the same in the assessment book and on the delinquent list — a fact that should tend to remove any uncertainty that might result from the misnomer.
Of course, although that part of section 25, relating to delinquent lists, is broad and apparently all-inclusive, there prob
For these reasons, therefore, we affirm the decree of the circuit court dismissing plaintiffs bill.
Affirmed.
Dissenting Opinion
(dissenting) :
The demurrer to the bill admits as true that the land involved was returned delinquent and sold in the name of ISTorena Lambert instead of Norma E. Lambert, in whose name it was assessed for taxation. The error occurred in the delinquent return and it was carried into the sales return etc. I think this was a fatal mistake in the delinquent list, and according to our prior decisions amounted to no return quo ad the land of plaintiff. True, the mistake occurs in the Christian name, but “Norena” is not the equivalent of “Norma E.” The mistake was such as might mislead and deceive plaintiff, the purchaser from Norma E. Lambert. The fact that the mistake occurred in the Christian name instead of the surname is not material if it was such- as might mislead or deceive the owner of the land. In the case of Friedman v. Craig, 77 W. Va. 223, cited, in the opinion of the court, the delinquent return contained the name of “Joseph Fredman,” and the assessment was in the name of “Joseph Freedman,” instead of the true name of the plaintiff, “Joseph Friedman.” No one could have been mis-' led or deceived by this mistake in the delinquent return. In the case of Collins v. Reger, 62 W. Va. 195, we decided that the .assessment and sale of land in the name of “Martha Hedrick” ■of land belonging to “Martha Helmick” was void after deed. In Male v. Moore we held that the assessment and sale of the ' land of “Hornbrook” in the name of “Hoonbrook” was a sub
Applying the rules heretofore adopted by this court, I think the decree ought to be reversed.