Mashuwas v. Bennett

| W. Va. | Mar 14, 1922

Poffenbarger, President:

The decree under review on this appeal set aside a tax deed made more 'than two years after the date of the sale of property, for the taxes as to which it - was delinquent, without any proof or claim that execution thereof had been delayed by any proceedings under sec. 22 of ch. 31 of the Code to compel execution thereof, or that such execution had been enjoined or stayed by any legal process or proceeding. By sec. 24 of said chapter, as amended by ch. 67, Acts, 1917, execution of a tax deed after two years,' from the date of the sale of the real estate, is expressly inhibited, except in the two cases just mentioned. The property was sold, December 4, 1917, for delinquency as to the year 1915, and the deed made December 12, 1919. There is no disclosure of failure or refusal of the Clerk of the County Court to make or correct a deed, causing a proceeding to compel him to do so, nor of any injunction or other proceeding by which execution thereof was precluded or delayed.

The argument submitted to sustain the deed and reverse the decree is founded upon the provision of sec. 19 of ch. .31 of the Code, as amended by said ch. 67, Acts, 1917, allowing the purchaser the privilege of filing his survey or plat and making his request for a deed, at any time between the expiration of fifteen months from the date of sale and two years from the date thereof. The contention is that, as he can file his report or plat and request the deed, at any time after fifteen months and before (the jexpiration of two years, the Legislature must have intended to permit him, after having done those things within two years, to take his deed at any time after two years. Such construction would put it in his power to have unlimited time to take the deed. That result was not within the legislative purpose. There has always been a time limit upon acquirement of the deed. Formerly it was five years. In the amendment effected in 1917, it was reduced to two. This action discloses intent to adhere to it as a matter of policy. Both provisions must be read together and allowed such effect as they can have and be made to conform, as nearly as possible, with manifest legislative purpose and policy. So read, they allow nine months in which to perform all the acts required of the purchaser and clerk to vest the title in the former, and both are given reasonable and important operation and effect.

The claim of right under sec. 19, to take a deed after two years, is based upon mere implication. That section does not give it in terms. The implication is not a necessary one, because section 24 negatives it, saying the deed shall not be taken after two years. A mere implication can seldom, if ever, stand against express terms.

Upon this construction of the two provisions of the statute involved, the decree complained of will be affirmed.

Affirmed.