66 F. 834 | U.S. Circuit Court for the District of West Virginia | 1895
The bill alleges that the tract of land in controversy in this case is a portion of two grants of land issued by the commonwealth of Virginia in 1795 to Robert Morris, one for 820,000 acres and the other for 480,000 acres. The evidence discloses a chain of title from the grantee down to Henry Cramond, who acquired the lands by deed from the heirs of Thomas Astley on the 10th day of December, 1840. It appears that the two tracts of land became forfeited in the name of Henry Cramond to the state of Virginia for the nonpayment of taxes thereon prior to the year 1842, and that the lands so forfeited and embraced in the two grants were sold in 1843, at which sale William Cramond became the purchaser; that subsequently Michael Bouvier, by various mesne conveyances, acquired the title to them, and, having had a resurvey made of them, he divided all of his lands into six tracts, one of which was 36,750 acres, — the subject-matter of this controversy. It is disclosed that the plaintiffs acquired the legal title to 36,750 acres by proper conveyances from the grantee in the patent down 'o the date of his deed in 1882. It also appears that the lands were charged with taxes to John Herman on the assessor’s books for Tazewell county, Va., for the year 1847 to the year 1861, inclusive, and were paid; that, owing to the Civil War, there were no taxes charged against these lands until the year 1865, when they were charged to Michael Bouvier, in McDowell county, with taxes for the years 1865-1868, both inclusive. In the year 1869 this tract was consolidated with a tract of 8,400 acres, one of the six divisions before referred to, and entered on the assessor’s books of McDowell county as a tract of 45,150 acres, charged with taxes, returned delinquent for their nonpayment that year, and sold by the sheriff of the county in October, 1871, and purchased by the state. After. the year 1869 the lands appear on the land books of Wyoming county in the name of Patterson and others, who were the owners of the tract from 1870 to 1874, inclusive, when they appear in the name of Francis Lasher from 1875 to 1890, inclusive,- — the year the plaintiffs brought this action. And in this connection it is to be observed these two large tracts of land, lying both in McDowell and Wyoming counties, appear to have been assessed sometimes in one county and then in the other.
It is apparent from this history of the title to the land in controversy that, with one exception, from the time it was purchased by William Cramond, at the sale made by the commissioner of forfeited and delinquent lands in 1843, it has been charged on the land books in the names of its various owners, and the taxes paid. It is, however, of little or no moment at this time to investigate the history of this title prior to the delinquent sale in. 1843. We must, at this late day, presume that the proceedings which resulted in the sale of the" land were regular, and that a new title began at that time, which has been transmitted by regular conveyances to the plaintiffs in this action. It follows from what we have said that the title to the land in controversy is in the plaintiffs to this action, unless they have lost it, since they acquired it, by neglect, or in some way permitted it to pass from them.
The contention of the defendants, first, is that, if the land was omitted from the proper assessor’s book for the year 1832, or any year thereafter, and the owner failed to have the back taxes charged for five successive years thereon, and such further omission continued for one year after the passage of the act, the land became forfeited; or, if the land had been omitted for any year prior to the passage of the act, including and after 1832, or shall not have been charged thereon for five successive years after the passage of the act, then, in either case, such failure operated to forfeit the land. I cannot concur in this construction of the act. It is, to my mind, a forced construction to cover the facts of this case. As we have before seen, the land in controversy was omitted from the assessor’s book in 1843 and 1844, and the omission was but for two years; but it appears on all the land books in the names of the various owners from 1847 down to the institution of this suit, with that single exception. What, then, was the duty of the owner of the land under the act of 1860, when it was omitted from the assessor’s bocks? Simply to cause them to be entered on the proper assessor’s book, and charge them with the state taxes thereon not charged to the owner for the year 1832, or “any year thereafter,”— that is, 1832, or any year “heretofore”; that is, prior to the passage of the act, and subsequent to the year 1832, or “any year hereafter”; that is, for any year after the passage of the act, — which have not been released or paid, and which were properly chargeable to the land. . This clause of the statute clearly points out to the owner what was required of him. The purpose of the next clause is to punish the party for his neglect or failure to comply with his duty “for five successive years.” What duty? Clearly, the duty to enter his lands as required by the statute, and charge them with the hack taxes. And if he fails to do this for five successive years, the penalty for his neglect is the forfeiture of his land. And for what is this penalty imposed? Is it the neglect to enter the lands for one year, or the failure to have them charged thereon for five successive years? Certainly, the legislature did not intend that the statute should be construed to deprive an owner of his lands for ¡he omission of a single year to enter them on the land hooks, and retain the taxes paid both before and after the passage of the act. Xo such injustice could be imputed to the legislature. Such a construction of the statute w'ould be not only unjust, but might be the means of inflicting great wrong upon an innocent owner. We must assume that the legislature, in passing this statute, acted
Before leaving this branch of the case, it might be well to allude to the act of 1869, and ascertain its purpose. I do not care to review the several acts of 1830, 1831, 1832, 1835, and 1836, relating to delinquent lands, more than to say that prior to the act of 1835 there was no law authorizing the forfeiture of lands for the failure of the owner to enter them on the land books, and have them assessed with back taxes, so that the state could get her taxes from such delinquent lands. The act of 1869, known as the “Huffman Act,” was passed with the view to remedy this evil. By that act it was intended to put lands delinquent for the nonpayment of taxes and those that were delinquent for nonentry on the commissioner’s books upon, the same footing, and for this purpose the year 1832 was fixed as the time in the statute when they would stand lipón a common footing. If I am right in the construction of this statute, was the tract of land in question liable to forfeiture when the proceedings were instituted by the .commissioner for that purpose? To answer this question we must ascertain against what land the proceedings were had, and if they were taken against the tract of land in controversy. It appears from the papers in this cause that the action of the commissioner was taken against the 480,000 acre tract and the 320,000 acre tract granted to Robert Morris. It does not appear that any proceedings were had directly against the land in' controversy, but, if affected by the proceedings, it is only by reason of the fact that it was originally a portion of one of these two tracts or of both of them. At the threshold of this investigation we are met with the fact that Robert Morris had conveyed all of his interest in the two tracts long before the institution of these proceedings; in fact the plaintiffs claim under a deed made by Robert Morris to William Cramond in 1797, more than 80 years before the commissioner instituted his proceedings. This statement of facts puts at rest the right of the state, through her commissioner of school lands, to move against these lands. The title to them had passed out of Morris, and he was no longer chargeable with them for taxes on them after their alienation by him. From all that appears in this case, the lands in the name of others had all been charged with taxes and paid. It does appear that, so far as the tract in controversy is concerned, the plaintiffs, and those under whom they claim, have been assessed with and paid
(31) “When any real estate is offered for sale as aforesaid, and no person present bids the amount to be satisfied to the state from the sale, the sheriff dr collector shall purchase the same on behalf of the state for the taxes thereon, and the interest and damages on the same, and shall make out a list thereof, under the following caption: ‘List of real estate within the county of-, sold in ihe month (or months) of-, eighteen hundred and -- for the nonpayment of taxes thereon for the year (or years) -, and purchased for the state of AVest Virginia.’ Underneath shall be the several columns mentioned in the tenth section, with a like caption to each column, omitting, however, the column headed ‘Name of Purchaser.’ The officer making out the said list shall make oath that it contains a true account of all the real estate within his county purchased by him for the state during the year •-, and return tlie list, with a certificate of the oatli attached, to the recorder of the county within ten days after such sale, who shall, within twenty days after such return, make an accurate copy thereof in a well bound booli, and transmit the original to the auditor.”
It is true that the caption provided for in this section differs somewhat: from that required by section 12 when the sale is made to an individual, it: is claimed by the defendants that under this section all that is required is for the return to show the month and year when the sale was made to the state. While this is true as to the caption, still that is not all that is required to he done. The succeeding paragraph, as we have seen, uses the following language:
“The officer making out said list should make oath that it contains a true account of all the real estate within his county purchased by him for the state during- the year and return the list with a certified copy of the oath attached to the recorder (clerk) of the county within ten days after such sale who shall*840 within twenty clays after such return make an accurate copy thereof in a well bound, book and transmit the original to the auditor.”
When you compare this clause of section 31 with section 14 of this act, it will be found that, while they are not the same in phraseology, they are the same in substance. In both sections the list is required to be filed within 10 days after such sale. This must be done, and it should appear that the mandatory requirement of the statute was complied with, otherwise this provision of the statute would be useless. The effort to distinguish this case from the case of Wakeman v. Thompson, supra, must fail. One of the five irregularities set up in that case was “that the sheriff failed to return his list of lands sold as delinquent for taxes within ten days after the sale and purchase by him for the state,” who was the purchaser in that case as well as in the one under consideration. In a well-considered opinion of this court it held “that the neglect of the officer to comply” with that requirement of the statute was “such an irregularity as tends to prejudice the rights of the owner whose lands have been sold.” It is true that neither the clerk nor sheriff is required by the express terms of the statute to note the day, but it is nevertheless true that the sheriff is required to return Ms list within 10 days, which fact must be established before the former owner could be divested of his title, and it passed to the state. It does not follow, because the state became the purchaser at this sale, that the statute should not be as fully complied with as in a case of a sale to a citizen. The irregularity complained of in this case is not that the sheriff or clerk failed to note the time of filing his list, but it is the fact that it does not in any way appear that he did file his list in 10 days. The court said in the Wakeman Case:
“That the former owner had a right to call at the recorder’s office after the sale of his lands, and demand the production of the sheriff’s report for his examination. If he discovered that there was no evidence when the report was filed, he could rest upon his rights, for the statute required the list to be filed within ten days after the sale. It must in some way affirmatively appear, and not be left to the presumption, that the sheriff had discharged his duty, which ordinarily, in this class of cases, would be a violent one.”
We adhere to the ruling of the court in the Wakeman Case, and hold that the irregularity complained of in this case falls within the previous rulings of this court upon this question, and is fully sustained by the supreme court of West Virginia. Barton’s Heirs v. Gilchrist, 19 W. Va. 223; Simpson v. Edmiston, 23 W. Va. 675; McCallister v. Cottrille, 24 W. Va. 173; Wakeman v. Thompson, supra, p. 1.
We come now to consider the defense of laches set up by the defendants to defeat the plaintiffs in this action. This is an equitable defense, and is often resorted to when the party who sets it up has no defense in law, and for this reason courts should be very cautious in applying this doctrine to defeat a rightful owner of the land who from neglect which may be the result of the want of proper information refrains from an assertion of his rights until the presumption of abandonment arises from his course of conduct. I am aware of the tendency in the courts of this day to recognize the defense with
The defendants deny the jurisdiction of this court to grant relief in this case, for the reason, as they claim, the remedy of the plain
I am authorized to announce that Judge GOFF fully concurs in this opinion.
See this case, 40 Fed. 375, sub nom. De Forest v. Thompson. — [Ed.