| W. Va. | Dec 2, 1913
Plaintiffs, as the heirs of A. Lawson, seek partition of a tract of 935 acres of land in McDowell county, for which a patent issued by the commonwealth of Virginia in 1861 to Lawson and M. A. Cartright. The circuit court having dismissed the bill on demurrer, the propriety of its ruling is challenged by appeal.
In 1866 M. A. Cartright conveyed his undivided half interest in the lands to his daughter Barbara, who conveyed the same interest to J. F. Johnson in 1873. Thence it passed by conveyance to Adonijah Shipe and Daniel Cloud in 1874. It was sold by the sheriff in 1879 in the name of Shipe as delinquent for the taxes of 1877, and conveyed by the clerk of the county court to D. R. Johnson in 1881, and by the latter to J. D. Sergeant in 1883.
From 1865 to and including 1867, the entire tract of 935 acres was assessed to M!. A. Cartright and A. Lawson; and thereafter, to and including 1872, to Barbara Cartright. In 1873 an acerage equal to a moiety of the whole tract was assessed to Barbara Cartright. Thereafter, until and including 1880, the same quantity was assessed to Adonijah Shipe. The Lawson undivided half interest did not appear on the land books in any form after 1872 in his name, unless the entries in 1880 of 467.5 acres to Shipe and 467.5 acres to M. A. Cartright and A. Lawson, and the entries in 1881 ,and
Plaintiffs, who assert title to the interest of their ancestor, allege the invalidity of the two tax deeds to D'. E. Johnson, under which the vendees of Sergeant now claim title to the whole 935 acres, and pray cancellation of both deeds as clouds on their title. Are they entitled to that relief, or to any relief, under the averments of the bill? A negative answer to that question must result in an affirmation of the decree from which they have appealed.
That the whole tract was forfeited to the state, because of non-entry on the land books from 1873 to 1883, a period of ten consecutive years, is clear, in view of the principles announced in Toothman v. Courtney, 62 W. Va. 167" court="W. Va." date_filed="1907-04-12" href="https://app.midpage.ai/document/toothman-v-courtney-8176070?utm_source=webapp" opinion_id="8176070">62 W. Va. 167, and more recently in Caretta Railway Co. v. Fisher, not reported. These cases hold that lands owned by cotenants can not lawfully be assessed to each of them by an acreage equal to his share, or by a fractional part representing his undivided interest; and that, if thus assessed, and any undivided interest is omitted from the land boobs and not charged with taxes for five successive years/title to the entire tract becomes forfeited, and vests in the state, notwithstanding entry and payment of the taxes assessed may have been made as to other undivided interests therein.
Therefore, by the failure to enter for taxation either the Cartright or Lawson interest and to pay the taxes thereon, for a period of five successive years, the whole 935 acre tract became forfeited, and title thereto vested in the state, notwithstanding the subsequent assessment of and payment of taxes on either interest. But the tax sales under the delinquency proceedings in 1879 and 1881, and the deeds to Johnson pursuant to such proceedings, while not passing the state’s title acquired by forfeiture, operate as an estoppel against the state, precluding her from asserting in any manner or for any purpose any title or claim of title hostile or adverse
Redemption from forfeiture is a mere grace allowed or withheld by the state, and is available only under proceedings instituted by her under the provisions of law, and not by another. But, as appears from what has been said, she is precluded from instituting any suit for that purpose; and plaintiffs can not do so. The state is estopped by the tax sales and deeds; and the statutes afford no independent redemptive proceedings by plaintiffs. Being without title, and without possession even though they had title, plaintiffs can not maintain this suit. Therefore, the circuit court did not err in its decree of October 25, 1909.
Affirmed.