96 W. Va. 117 | W. Va. | 1924
The purpose of the bill is to set aside and annul as a cloud upon the title of plaintiff, a tax deed made to defendant. The decree denied relief, and plaintiff appeals.
Lot No. 18 in Block D of the town of Mullens was owned by Thurmond in the year 1917, and on the 3d day of June of that year he conveyed it to- Worrell, who, on the same day, conveyed it to Slab Fork Land Company; on the 30th day of April, 1921, this company conveyed the lot to plaintiff C. H. Koontz. It appears that the taxes for 1917 were not paid, and in January, 1920, the sheriff sold the lot, and defendant John Ball purchased the same. Afterwards, on June 1, 1921, the county clerk executed to the purchaser a deed in statutory form to defendant, and it is to set aside this deed as a cloud' upon the title of Koontz that the bill is filed.
It appears that the purchaser caused notice to be issued by the clerk and served on Worrell on March 16, 1921, and by publication as to Thurmond, in whose name the property was returned delinquent, advising them that he would demand a deed from the clerk for the lot. These notices with returns thereon, or the manner of serving, are not in the record. They are alleged to have been issued and served on the persons in the manner and for the purpose above stated. Upon being served with the notice Worrell, who lived in the town of Mullens, about sixteen miles from Pineville, the county seat, wrote to his brother, E. W. Wor-rell, to examine the county records, and if there were any delinquent taxes unpaid on this lot, to redeem the same, enclosing him • a check for a sufficient amount of money to make the redemption. E. W. Worrell, upon finding that the lot had been sold for delinquent taxes approached Ball for
The bill charges that the notice to Thurmond of the sheriff’s sale and that a deed would be demanded was published in a newspaper printed and published in the town of Mullens for four consecutive weeks and that a similar notice was served on G-. C. Worrell on the 16th day of March, 1921, but that neither of) these notices nor the return of service thereof was recorded with the deed as required by law; the bill further charges that the tax deed is a cloud upon plaintiff’s title and the prayer is that the deed be set aside and can-celled. It is true that the failure to record these notices with the returns thereon with the deed as required by the statute is not stressed in the bill as one of the main grounds for setting it aside. The bill, in the main, seeks to have the deed cancelled because of the promise and representation of Ball to E. W. Worrell that he would procure the sheriff’s receipt and allow a redemption and that no tax deed would be taken ,- and the testimony is all upon that feature of the ease. However, the deeds above mentioned, including the tax deed, are exhibited with the bill, and it appears from an inspection of the tax deed that these notices with the returns thereon have not been recorded. The answer does not deny that they have not been recorded. What effect does this failure to have the notices with the returns thereon recorded have upon the validity of the deed? The statute, section 19, chapter 31, Code 1923, requires that the purchaser, within three months after the expiration of one year from the day of sale, shall file with the clerk a survey or report mentioned in the 17th and 18th sections of the chapter, with the request for a deed, when it shall be the duty of the clerk to issue notice to the person "in whose name .the real estate was returned delinquent and sold, and to any grantee or vendee of such person, which shall be served at least sixty days before execution "of the deed. Provision is made for serving non-residents
We are of tbe opinion to reverse tbe decree, order and decree that tbe tax deed to John Ball dated tbe 1st day of June, 1921, executed by tbe county clerk, Dan W. Cook, conveying Lot 18, Block D, in tbe town of Mullens in Wyoming county, and recorded in Deed Book No. 60 at page 223, et seq. in tbe office of said clerk, be set aside and annulled as a cloud upon plaintiff’s title to said lot, conditioned upon tbe payment by plaintiff to defendant of sucb sum of money expended by tbe latter in tbe purchase of said lot at tbe tax
Reversed, decree entered here; cause remanded.