224 F. 874 | 4th Cir. | 1915
The primary issue in this cause is whether the Pocahontas Coal & Coke Company has acquired the title of Max Uansburgh to a tract of land containing about 44,000 acres. This issue depends on the validity of two sales of the land as the property of Uansburgh, under which the coal company claims; one a sale by the order of the District Court October 20, 1897, of 16,504 acres, and the other a tax sale of the entire tract December 13, 1897. Uansburgh filed his bill on July 11, 1907, to set aside these sales. Henry McCormick, who was the purchaser at both sales, having died, his sons, Henry B. McCormick and Vance McCormick, as his executors, and the former in his own right, and Wm. M. Ritter, who received title from McCormick and conveyed lo the coal company, were made, co-defendants with the coal company. An accounting for timber cut and coal mined, and generally for the rents and profits, was sought against all the defendants. Uansburgh having died on June 10, 1910,
The judicial sale was made under these circumstances: On June 10, 1889, Lansburgh entered into a written agreement with Henry McCormick to convey to him 10,000 acres of the large tract above mentioned, to be ascertained and surveyed as indicated in the paper, for the price of $35,000, of which McCormick paid $23,353.33. A dispute arose as to the land to be conveyed, and Lansburgh offered to refund the money paid and annul the agreement. After refusing this offer McCormick brought suit for specific performance, and by his amended bill asked that if it should turn out that Lansburgh could not make a good conveyance, then that the court decree the return of the purchase money paid, making it a lien on the land. The litigation resulted in the rescission of the contract and a judgment against Lans-burgh for $27,899.37, which included the .cash payment made by McCormick and taxes paid by him pending the suit. The decree provided that if Lansburgh should'not pay the amount found against him within 60 days, two parcels of the land, aggregating 16,504 acres should be sold to pay the debt. At a sale made under this decree October 20, 1897, McCormick bought the land for $23,333.33. Lansburgh filed exceptions to the commissioner’s report of sales, but the sale was confirmed. After applying the proceeds and a sum paid into court by the Panther Lumber Company for timber cut, a balance of $12,623.65 remained in favor of McCormick against Lansburgh, which was decreed to be a lien on the remainder of the land.
“And, tlie court being advised that there are divers and sundry persons within the bounds of said tract of 50,000' acres, who claim to hold adversely tracts and parcels of land by titles inferior to the title of Lansburgh, and who have been and are committing trespass upon the same, and there being a possibility that the statute of limitations may be successfully pleaded should the prosecution of this action be extended, and no action speedily taken to stop the running of the statute, it is hereby ordered that unless the said Lansburgh, within 30 days from the date of this decree, institute actions of ejectment in his own name to recover such tracts or parcels of land, then the said complainant, Henry McCormick, or his assignee or assignees, is hereby authorized and empowered to institute and prosecute in the name of the said Lansburgh such action or actions of trespass or both as he may be advised, the expenses and costs of which, however, to be advanced by the said McCormick, whether instituted by the said Lansburgh or by the said McCormick in Ms name, so much thereof as shall not be recovered from the defendants in such actions of ejectment to be a charge upon said lands, subject to the or.der of the court.”
This order was made at the instance of McCormick and opposed by Lansburgh. It therefore amounted to a voluntary undertaking on the part of McCormick to advance the expenses and look to the land for repayment- if they could not be collected from the alleged trespassers. The order clearly made a community of interest in the litigation between Lansburgh and McCormick, and contemplated that any recovery of the land should be for the benefit of both — Lansburgh as owner and McCormick as lienholder — and that McCormick should have a further lien for his expenses. But it did not impose upon McCormick any other duty to Lansburgh, or any burden to pay the taxes on any portion of Jyansburgh’s land; and the record affords no evidence that McCormick in any other way assumed burdens either expressly or impliedly. Suits were brought in the name of Lansburgh for the recovery of the lands referred to, the declaration being signed by E. L. Buttrick, S. L. Flournoy, and M. F. Sides as plaintiff’s counsel. Mr. Flournoy was counsel for Lansburgh in his litigation with McCormick. He and Mr. Buttrick, McCormick’s attorney in the litigation with Lans-burgh, died before the trial of this cause. Mr. Stiles was brought in to assist in the ejectment cases, and testified to his recollection of the relations of the parties. His evidence and the letters of Mr. Flournoy written to Lansburgh’s counsel in Washington show that McCormick retained all the attorneys in the ejectment suits; that Flournoy communicated to Lansburgh’s counsel in Washington, where Lansburgh lived, his acceptance of employment from McCormick because of his belief that McCormick and Lansburgh had a common interest in the
At the time of the tax sale there was no relation of cotenancy. McCormick had acquired in severalty 16,504 acres of the tract, and he was a mere lienholder as to the remainder. As the taxes had accrued before McCormick had acquired the tract of 16,504 acres he owed no duty to pay the taxes; on the contrary, the duty was on Lansburgh to pay them. There was nothing then in the legal relations of the parties that forbade McCormick to buy Lansburgh’s interest at a tax sale. Summers v. Kanawha, 26 W. Va. 159; Holt v. King, 54 W. Va. 441, 47 S. E. 362; Towle v. Shelly, 19 Neb. 632, 28 N. W. 292; 37 Cyc. 1347. But even if there had been such relation, it was repudiated by Lansburgh.
“When the purchaser of any real estate so sold, and not redeemed as aforesaid. Ms assignee', or heirs or devisees, shall have obtained a deed therefor according to the provisions of this chapter and caused the same to be admitted to record in the office of the clerk of the county court of any county in which such real estate or any part thereof may be, such right, title and interest in and to said real estate, as was vested in the person or persons charged with the taxes thereon for which it was- sold, at the commencement of, or at any time during the year or years for which said taxes were assessed, and all such right, title, and interest therein 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 llie taxes of which (lie same was sold, and have actually paid the same as required by law, shall be transferred to and vested in the grantee in such deed, 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, and be such as materially to prejudice and mislead the owner of the real estate so sold, as to what portion of his real estate was so sold, and when and for what year or years it was sold, or the name of ihe purchaser thereof; and not then, unless it be clearly proved to the court or jury trying the case, that but for such irregularity the former owner of such real estate would have redeemed the same under the provisions of this chapter.” West Virginia Code 1013, § 1081.
Similar irregularities in the assessment, it seems, do not fall under the statute; and as to these, strict compliance with the law is necessary to the validity of a tax sale. Male v. Moore, 70 W. Va. 448, 74 S. E. 685. It is alleged that the assessment was—
‘null and void in that it was attempted to be made and purported to be upon the whole of your orator’s land described as 44,350.5 acres, including the part thereof lying in. the state of Virginia, as well as the portion thereof in said McDowell county, and was not apportionable, and in its description of the land attempted to be assessed the said assessment was fatally vague and indefinite, in that it described said land merely as 44,350.5 acres, Panther, Dry Fork and Bradshaw, in the Sandy River district.”
If this defect were set up by another person interested in the land it might present a serious question under the authority of the case last cited. So also if the assessment or delinquent list had contained no description at all it would be held fatal even as against the owner. Mosser v. Moore; 56 W. Va. 478, 49 S. E. 537. But an inadequate description in the assessment proceedings, or the inclusion of a larger area than was proper, cannot avail one who was the owner at the time of the assessment and the time of the sale, for the reason that the assessor is required by law to obtain from the owner the description of the land. Code of West Virginia, § 898. The presumption therefore is that the description was furnished to the assessor by Lansburgh, and he cannot now allege that it was' insufficient or incorrect after the rights of other persons have become involved. We conclude there is no illegality in the tax sale available to Lansburgh.
There would be no value in an analysis of the mass of testimony relating to the details of the sale by McCormick to Ritter. Careful consideration of all of it leads to these conclusions: McCormick, annoyed and vexed by the long and expensive litigation and the uncertainty as to the title, was very anxious to sell all his interest, and believed that he had acquired whatever title Lansburgh had. He also believed with good reason that Lansburgh had abandoned all claim to the land. Ritter, in proposing to purchase tried to get the best bargain he could, and had no other interest in the matter. The price of $60,000 was obviously inadequate for a clear title, but other persons were setting up claims, and McCormick accepted the low price in order to escape further trouble. The record furnishes no sufficient evidence of an intention to defraud Lansburgh by collusion between
Importance was attached in the argument to the fact that Mr. D. R. Flournoy, who represented Ransburgh in his litigation with McCormick, and who died before this suit was brought, was one of the representatives of McCormick in negotiating the sale of Ritter. In the light of subsequent events it was unfortunate that Flournoy took this course without the express and direct statement of Ransburgh that he regarded his title lost; but careful scrutiny of the record leads to the clear conclusion that he believed, and had good reason to.believe, that Ransburgh had abandoned all claim to the land when he failed to accept his advice and redeem it after the tax sale. For this reason his action leaves no shadow on his fair name.
In meeting the charge that Flournoy and his associates had betrayed the trust which as counsel they owed to' Ransburgh, all communications written and oral between them and Ransburgh or his counsel in Washington were clearly admissible in their vindication. Hunt v. Blackburn, 128 U. S. 464, 9 Sup. Ct. 125, 32 L. Ed. 488; Grant v. Harris, 116 Va. 642, 82 S. E. 718. We conclude: First, that Ransburgh’s interest-passed under the judicial and tax sales; and, second, if he had any legal or equitable right afterwards, he lost it by his laches.
Affirmed.