48 W. Va. 251 | W. Va. | 1900
This is a chancery suit in the circuit court of Randolph County by Z. Kendall against C. H. Scctt and R. B. Caplinger
H. E. Hayes owned a lot of land in the town of Elkins up to the 6th of November, 1890. By deed of that date Hayes conveyed it to E. F. Kendall, and on the 10th January, 1891, the deed was. admitted to record. In 1891 Kendall died,-leaving the plaintiff, Z. Kendall, to inherit said lot as the only heir of his father. On the tax book of 1891 the lot was charged in the name of the former owner, H. R. Hayes, and not in the name of Kendall, and was returned delinquent and sold for non-payment of taxes under that charge of taxes for 1891, and purchased by Scott and Caplinger. The ground assigned for setting aside the tax Reed is that the assessment was in the wrong name; that it should have been in the name of E. F. Kendall, and not in the name of Hayes, and it is alleged that this irregularity is one which makes the assessment void, and is an irregularity apparent upon the face of the record in the clerk’s office materially prejudicing Kendall, but for which he would have redeemed the land or paid the taxes. Therefore we have to say whether this irregularity is an irregularity apparent upon the face of the record in the clerk’s office, such as is meant by Code, chapter 31, section 25, where it is said that after a deed has been made under a tax sale, it shall, pass to the purchaser such right as was vested in the person charged with taxes, “and all such right, title and interest of any other person or persons having title thereto who have not in his or their own name been charged on the land books of the proper county or assessment district with the taxes chargeable on such real estate for the year or years for the taxes of which the same was sold, and have actually paid the same,” * * * * “notwithstanding any irregularity in the proceedings 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.” I do not think that the failure of the clerk or assessor to transfer the land on the land book from the name of Hayes to that of Kendall is such a defect as is apparent on the face of the record within the meaning of the statute quoted. That statute means the record of the sale proceedings. It would cover the assessment list, the delinquent list, the sale list; but would it allow you to go away from the face of those lists to find such a defect as the failure to make a transfer ? To find that defect you must go into the deed
Another consideration which we must note is, what we all know to be a prevalent case, that is, that lands are often kept on the land books in the name of former owners, notwithstanding conveyances, and that in order to cure any. defect in a tax deed from such assessment in the name of the former owner, instead of. that of the owner at the time of assessment, the legislature made the provision in the statute that the purchaser should get the title of the one charged with the land, or anyone else, not assessed in his own name therewith and paying the taxes. That clause of the statute covers this case. The statute makes it the personal duty of the real owner to have himself charged in his own name with the taxes, and if he fails to do so, and the land is kept on in the name of the former owner, assessment, delinquency and sale in the name of that former owner will pass to the purchaser the title to the land under the letter, spirit and aim of the statute.
It is objected that the affidavit to the sale list is defective. It contains all that is required of the affidavit by section 13, chapter 31, except that it omits the words “as well as a list of all the real estate redeemed, and the name of the person who redeemed the same.” Now, what has the list of redemptions to do with the list of sale? As Judge Lucas said in Jackson v. Kittle, 34 W. Va. 207, such omission is not material to affect the validity of a proper affidavit concerning sale. As this affidavit and
Reversed.