18 W. Va. 320 | W. Va. | 1881
announced the opinion of the Court:
I have stated the evidence in this case at considerable length. It is contradictory, but, I think, taken altogether we may draw from it the inference, that the following are the substantial facts of the case : On January 1, 1869, James Furbee and wife conveyed to their son Henry B. Furbee a fraction of a lot in Mannington containing only forty square yards covered entirely by a building known as a daguerrean gallery; twenty days afterwards the same grantors conveyed to Henry B. Furbee this forty square yards, on which stood this building, and also another parcel of land in the town of Mannington on the Baltimore and Ohio railroad, which we will for the sake of perspicuity call the railroad-lot. But four days before the making of this last deed, that is, on January 16, 1869, this gallery-ground of forty square yards was conveyed to the plaintiff, Koon, by said H. B. Furbee and wife. So that on April 1, 1869, Henry B. Furbee owned in Mannington the railroad-lot and no other property. The forty square yards, on which stood the photograph-gallery, he had sold and conveyed to the plaintiff for $200.00 on January 16, 1869. In the assessment of lands for 1869, which is to be regarded as made of April 1, 1869, (see Cpde of West Virginia, ch. 29, § 39, p. 161), there was assessed in the name of Henry B. Furbee a lot in Mannington. When this assessment was made, he owned no land in Mannington except what we have designated as the railroad-lot. He had then left Mannington and the State, and the defendant, Snod-grass, claims that he had abandoned this lot. But this does not appear to be the fact. The deed from his father to him was not recorded, but it had been acknowledged and delivered; and go far from bis abandoning this lot we find him after-
Before the end of the year, in which the party has a right to redeem his land (see Code of W. Va. p. 190 ch. 31 § 15) probably in the summer of 1872, the defendant, Snodgrass, told one Beatty, that the lot, which he had bought, and which was sold in the name of Henry B. Furbee, was this photo-gragh-gallery lot; and this he did confidentially, asking him to say nothing about it. But Beatty at once told Koon, the plaintiff, that Snodgrass claimed he had bought his gallery-lot for taxes, and he thereupon called on Snodgrass and offered to redeem the same by paying him the amount, which he had paid, and the interest at 12 per cent, per annum thereon. No specific sum, which he would pay, was probably mentioned, and no money was produced. Snodgrass, as appears by his answers, seems to have thought, that under the 15th and 16th sections of ch. 31 of the Code page 190 he was not bound to receive it, and he refused to receive it, telling him at the same time, that the lot he had bought charged in the name of Henry B. Furbee was not the gallery-lot but some other lot, in which the plaintiff had no interest. The plaintiff then went to the recorder and offered to redeem the land. This was probably in November, 1872. The recorder told him to go again to Snodgrass and tender him the exact amount, for which it was •sold, with the 12 per cent interest upon it, and if he refused to receive it, he, the recorder, would then receive it; and he told him the exact amount necessary to redeem it, This ex
The question involved in this case is, whether the defendant, Snodgrass, was entitled under these circumstances to a deed for this forty square yards, on which this photograph-gallery stood. Assuming for the present for arguments sake, that the land bought by the defendant at the sheriff’s sale was forty square yards, on which the photograph-gallery stood, and that it was properly sold, as listed, in the name of Henry B. Furbee, and had been properly returned as delinquent for the non-payment of taxes, and the sale was in all respects regular, would the defendant, Snodgrass, have been in this case entitled to a deed therefor ? His claim, that though there had been tendered to him by the plaintiff the correct amount for the redemption of this land within one year from the sale, still he. would be entitled to his deed, unless the plaintiff also paid it to the recorder within the year, is not sustained by a true interpretation of the 15th and 16th sections of ch. 31 of the Code of W. Va., p. 190, on which he relies. •
The 15th section provides, that the plaintiff in this case might redeem the same within the year by paying á certain sum to the purchaser. It is therefore obvious, that he could not be defeated in this his right of redemption by the plaintiff’s refusal to receive the money when tendered to him. The 16th section in providing, that if the purchaser refuses to receive the money, the' owner of the land may pay it to the recorder within one year, does not render such payment to the recorder essential to the perfection of the plaintiff’s right to the land, but was intended simply to prevent the recorder from making a deed to such purchaser, which he might otherwise have done in ignorance, that such a tender had been made to him, and to impose on the purchaser, after the recorder had received the money from the purchaser, the necessity of applying to the court to settle the rights of the party claiming the right to redeem and of the purchaser, before any deed should be ¿nade.
In the present case the recorder states, that the money to redeem this land was tendered to him by the plaintiff within the year; and it would be strange indeed, if his refusal to re
Now the law never allows a party to defeat another’s right by fraud. In Southworth v. Smith, 7 Cush. 391, A., the purchaser óf real estate at a sale, absented himself from home with the fraudulent purpose of preventing a debtor or his as-signee from redeeming the land within the time required by. the law; and the court decided, that this fraudulent conduct of the purchaser would exclude him from afterwards claiming, ■that a tender was not made to him within the time the law required. This case is cited approvingly by Judge Haymond in delivering the opinion of this Court in Gas Company v. Wheeling, 8 W. Va. 363.
The fraudulent misrepresentation in the case before us, made with the purpose of misleading the plaintiff and preventing him from formally redeeming the land, must have the same effect, and must preclude the defendant, Snodgrass, from now objecting, that a legal tender of the money necessary to redeem this land was not made to him within a year. In the case before us, however, what was the equivalent of a legal ■tender seems to have been made by the plaintiff to the defendant, Snodgrass, within a year. It is true, that the legal incidents of a valid tender are the actual production and proffer
But as there is contradictory evidence on the question, whether the plaintiff was prevented from redeeming this land within a year by the fraudulent conduct of Snodgrass, and also some uncertainty as to the actual facts, which accompanied the tender made by the plaintiff to Snodgrass within the year, I prefer to base the conclusion, which I have reached in this ease, on another ground, as in reaching such conclusion I have to rely on only the written evidence in the case and undisputed facts. To my mind it satisfactorily appears from the record, that the defendant Snodgrass, did not buy at the sheriff’s sale for delinquent taxes the forty square yards of land, on which stands the gallery described by the plaintiff, and is of course entitled to no deed therefor. On April 1, 1869, this lot in Mannington, whatever it be, which the defendant Snod-
This inference is greatly strengthened by the fact, that at the date of this assessment of a lot in Mannington in the name of Henry B. Furbee,' that is on April 1, 1869, he was the legal and equitable owner of another parcel of land in Mannington, which, so far as the record shows, was not built upon. This parcel of land lay on the Baltimore and Ohio railroad, and could certainly have been far more properly described as a lot in Mannington than this forty square yards covered by a building; and when we have in mind that Henry B. Furbee was the legal and equitable owner of this ground, while he had neither a legal nor equitable title to this forty square yards, there can be no doubt, that it is greatly more probable, that by this lot in Mannington was meant this railroad-lot, than the ground on which stood the gallery. It may not have been the purpose of the assessor by a lot in Mannington to designate this land in Mannington on the railroad; but whatever he did mean, it seems to me clear, that he did not mean this forty yards of ground on which this photograph-gallery stood. The language he has used in making this assessment, taken in connection with the surrounding facts precludes, it seems to me, the idea, that this forty yards of ground was meant. If it was not, then of course the defendant, Snodgrass, has no right by virtue of his purchase of this lot in Mannington to a deed for this forty square yards of land; and the injunction, which the court granted to prevent him from procuring such deed, ought on the hearing to have been perpetuated.
The decree of the circuit court of Marion county of November 8, 1877, must be reversed and annulled; and the appellant must recover of the appellee, Ezekiel C. Snodgrass, his costs in this court expended ; and this court proceeding to render such decree as the circuit court ought to have rendered, as the plaintiff is entitled to the relief he sought, must perpetuate the injunction heretofore awarded in this cause, and adjudge and decree, that the defendant, Ezekiel C. Snodgrass, do pay to the plaintiff his costs expended in said circuit court.
Decree Reversed,