65 W. Va. 241 | W. Va. | 1909
Isaac J. Lohr and wife owned a 16 acre tract of land in Barbour county, which was charged with taxes, in the name of Isaac J. Lohr for the years 1898 and 1899, as a tract of 11 acres and 30 poles, and, for the years 1900, 1901, 1903 and 1903, as a tract of 16 acres. It was returned as delinquent for non-payment of the taxes for the year 1899, in the name of D. J. Lohr and sold for such delinquency in December, 1901, in the name of B. J. Lohr, William T. George being the purchaser. A surveyor’s report, subsequently made, describes it as land conveyed to Isaac J. Lohr and Mary Y. Lohr, and as having become delinquent in the name of D. J. Lohr. The clerk of the county court later executed a deed, based on this report, by which he conveyed the land to S. L. Reger, trustee, assignee of George, and in which he recited that it had been charged with taxes for the year 1899 as a tract of 11 acres and 30 poles in the name I. J. Lohr. Reger and his cestuis que trustent conveyed it to Chas. W. Rosier, reserving to themselves the coal under it, and Rosier conveyed it to S. L. Wolfe. Lohr had previously conveyed the coal to J. M. Guffey. This suit was brought by Lohr to set aside the tax deed on the ground of irregularities in the tax sale proceedings, and for fraud on the part of George and his associates in effecting the purchase, and the court dismissed the bill.
Want of necessary parties is relied upon as justifying the decree, it appearing from the bill that Mary Y. Lohr had died intestate in -the year 1898, supposedly leaving heirs, who are not made parties. On her death, the plaintiff became seized of an estate by the curtesy in her interest, and so entitled to a freehold in severalty estate in .the entire tract. Independently of this, he had a right of redemption -as a former owner and his right to set aside this deed, if it is void, is co-extensive with his right of redemption.
The defect in the proceedings is a' mere irregularity in the return of delinquency and-sale, clearly cured, after deed made, by the provisions of Section 35,-phapter 31 of the Code. There was a proper and valid ’assessment, and this statute declares that no mere mistake, irregularity or defect in the return, delinquent list, or affidavit shall' constitute ground for setting-
The charge of fraud in the sale is predicated on the testimony of the sheriff who made it. The hypothesis, the plaintiff attempted to establish by this testimony, was that certain persons, including George, the purchaser of this tract, made a pretense of bidding against each other for the purpose of preventing bids in good faith by others, and, having reduced the quantity of land to be taken for the taxes by competitive bidding, they refused to accept it, withdrew all the bids but the first for the whole tract, and so obtained undue advantages. The witness admitted that in some instances the bidders refused to take the land in accordance with their bids and claimed that he, the sheriff, could then declare it sold to preceding bidders, but said that they had finally taken all the tracts as they had bid them off. He then named some of the persons who had made such contentions. He thought the parties had bidden against each other. Refusals to comply with the bids occurred after the sale, sometime in the evening after the crowd attending the sale had dispersed and gone away, and after the sale had been completed, but he protested throughout the examination the contracts were closed as they had been made. These parties had bought nine tracts at less than the quantity charged. Of the 71 tracts sold, they bought 47. He thought they had bid against each other, and, before the sale was closed, withdrew their bids so as to permit bidders for larger quantities to take the land, and said it was a very common occurrence among the parties named. On cross-examination, he said he had no recollection that more than one bid was made on the tract of land in question. He made, out receipts to the purchasers as it was sold. When speaking of withdrawals of bids, he meant they had occurred prior -to the declaration of the sale. Each party got what he
Duerr v. Snodgrass, 58 W. Va. 473, seems to assert that a tax sale may be set aside for fraud, perpetrated by the officer who made it, or the bidders. -That such frauds afford ground for setting them aside is undoubted. Cooley on Taxation (3rd Ed.),' pp. 941, 945, inclusive; Black on Tax Titles (3d Ed.), secs. 346, 347; Blackwell on Tax Titles (5th Ed.), sec. 557. The text in these works is fully sustained by numerous well-considered decisions, including Slater v. Maxwell, 6 Wall. 368; Dudley v. Little, 2 Ohio 509; Eldridge v. Kuehl, 37 Ia. 161; McCready v. Sexton, 39 Ia. 356; Kerwer v. Allen, 31 Ia. 578; Springer v. Bartle, 46 Ia. 688; Beeson v. Johns, 59 Ia. 166; Frank & Darrow v. Arnold, 73 Ia. 370; Gallaher v. Head, 108 Ia. 588; Merrett v. Poulter, 96 Mo. 237; Stephens v. Williams, 70 Ind. 536; Brown v. Hogle, 30 Ill. 119. In some of the cases cited, the' sales were invalidated because the purchasers prevented competition in bidding by representing that the owners would redeem the land. In others, it appeared that all the bidders had, by agreement, arranged to bid by turn and not against each other. In some others, the officers had virtually made private sales by allowing the ’purchasers to go through the lists and select, in advance of the sales, the lands they wanted. We think it may be clearly deduced from all the decisions that the fraud, in order to give relief, must have extended to the land as to which relief is asked. In other words, it does not suffice that somebody perpetrated a fraud at the sale in respect to land other than that
The sheriff says he thinks they resorted to by-bidding. He made the sale. This amounts to saying they did, according to his recollection. They admit that some purchases were made for all in the name of one. This tract was so purchased. Hence, the combination extended to it. -This makes a prima facie case to which they, have not responded. In our opinion^ the facts disclosed amply justify the inference of a combination in restraint of competition and there is no evidence whatever tending in the opposite direction. The verdict of a jury predicated upon it could not be disturbed by this Court. The charge cannot be presumed and must be proved, but the inference is strengthened by the silence of the defendants. Hone of them testified.
As to the allegations of fraud, we have carefully examined the bill and concluded that they are sufficient. The combination and mode of bidding is charged substantially as above set forth. The bill further alleges that Rosier and Wolfe colluded and conspired with the other defendants and that they paid no consideration for the successive conveyances .made to them. There is no specific or direct averment of notice to them of the circumstances under which, and the method by which, the other defendants acquired the deed, but, as stated, their complicity in the conspiracy is positively and directly charged. The joint and separate answer of all the defendants, denies the fraud, collusion and conspiracy and also that the consideration expressed in the deeds to Rosier and Wolfe are fictitious, but there is no averment 'in the answer that any consideration was paid by either Rosier or Wolfe. Aside from-the admissions of the answer, it is negative in character all the way through.
Rrom what has been said, it is plain that the deed must be set aside as to all of the defendants except Rosier and Wolfe. Whether their title must fall also depends upon whether their status is the same as that of ordinary purchasers from fraudulent grantees. We think it is. The defect in this conveyance from the sheriff to Reger is not a defect of record. Defects apparent upon the record of tax sales are generally treated as rendering the deeds, not merely voidable, but void. However this may be, the ground of relief here is not such a defect. It is one established by parol evidence, and does not pertain
From the conclusion above stated, it results that the court below should have set aside these deeds unless there is something in the objection that the bill fails to tender, or allege a tender
After the execution of the deed to Wolfe, he took possession of the land and the other defendants aided him in maintaining it. The bill prays an injunction, inhibiting and restraining them from the exercise of dominion over it, but no preliminary injunction was awarded. As the court has jurisdiction and the pretensions of the defendants rest solely on the tax deed, it may, on setting 'aside the deed, give full and complete relief in the premises, by awarding the plaintiff a writ for the possession of
For the reasons stated, the decree complained of will be reversed and the cause remanded with directions to ascertain the amount due the defendants, and, on payment thereof, by the plaintiff, to cancel and set aside the three deeds complained of in the bill and award the plaintiff a writ for the possession of the land.
Reversed and Remanded.