65 W. Va. 558 | W. Va. | 1909
Mullen purchased real estate at a tax sale. The sale was made for a delinquency upon an assessment, in the name of the Little Kanawha Lumber Company, of a lot on Depot street, in the city of Parkersburg. The lot was not redeemed from this sale. After the expiration of the statutory period for redemption, Mullen received a deed for the lot from the county clerk. Mc-Kain, who had purchased, through McGraw, the title of the Little Kanawha Lumber Company to the lot in question, sought by suit in chancery to set aside Mullen’s tax deed, for irregularities alleged. He had tendered to Mullen a proper amount for redemption before the institution of his suit. The tender was refused. In his bill he kept this tender good, brought the money into court, and it was deposited with the clerk. This suit resulted in a decree annulling the tax deed and directing the clerk to pay Mullen the amount necessary to reimburse him in the premises. Mullen accepted that amount, pursuant to the terms of the decree. He receipted to the clerk therefor. More than one year afterwards he applied for ap appeal from the decree. The appeal was allowed him. The appellee, McKain, moved to dismiss the appeal, upon the ground, that, by the ac
The motion to dismiss the appeal, is, of course, first in order. If that motion is well taken, we have nothing to do with the merits of the errors assigned and submitted for our consideration
Did Mullen lose his right to appeal? Clearly so, by reason and authority. The money he accepted represented what he had paid for the title declared void. It was tendered him by the decree as essential to the action of the court in setting aside the tax deed. Its tender to him was a substantial portion of the decree, made upon the equities arising between the parties. That portion of the decree was inseparably connected with the order annulling the tax title. And so inseparably was it connected therewith, that it could not be recognized by Mullen without his recognizing the decree annulling his tax deed. As the decree stood, it gave him benefit. True, it gave him not what he had sought in the litigation, but it gave him the fruits of the controversy that the court in equity and law deemed to be his. He voluntarily .accepted these fruits, yet he seeks by appeal to destroy the rights under the decree belonging to the other party. He cannot have the one and deny the other. The acceptance of the taxes tendered and deposited was a recognition of McKain’s title, and it is inconsistent with the prosecution of this appeal which attacks the title. The money was tendered, and later decreed to be paid, for the sole purpose of clearing that title of a claim to it. Therefore, .the acceptance of the money, so tendered and decreed, plainly recognized the clearing away of the claim. Mullen had no right to the money, except as compensation for What he had paid out as a basis of his claim of ti- . tie to the land.' When he accepted the money he relinquished something for it. That which he relinquished was the claim that he was a valid tax purchaser. Surely he was not entitled
“It is a general rule that a party who accepts the benefit of a judgment waives a right to prosecute an appeal from it.” Elliott on App. Pro., sec. 150.' This principle has been almost universally approved. 2 Cyc. 651; 2 Enc. Pl and Pr. 174; Paine v. Woolley, 80 Ky. 568; Dunham v. Randall, 11 Tex. Civ. App. 265; Tyler v. Shea, 4 N. D. 377. Extensive notes of eases touching the subject are found in 13 Amer. Dec. 546; and in 45 Amer. St. Rep. 271. The rule does not apply “to cases where the appellant is shown to be so absolutely entitled to the sum collected upon the judgment that the reversal of it will not affect his right to it.” 2 Cyc. 653; Embry v. Palmer, 107 U. S. 8; Reynes v. Dumont, 130 U. S. 394. The case before us is plainly without the scope of this exception. Mullen’s act in accepting the money decreed was wholly inconsistent with his appeal. He was not so absolutely entitled to the sum that a reversal would not affect his rights to it. A reversal, such as he seeks, would declare that he had no right whatever to the money which he received under the decree. “He stands thus in the attitude of holding the fruit of the judgment to which he may not be entitled if his appeal succeeds and yet persisting in his appeal. The trouble is that he cannot gain the right to recover more without incurring the hazard of recovering less.” Alexander v. Alexander, 104 N. Y. 643. A party cannot avail himself of that part of a decree which is favorable to him, and accept its benefit, while prosecuting an appeal to reverse such por
Mullen, when he was awarded his appeal, plainly had no right to it. Does his offer to make restitution avail him? We hold that it does not. Repayment cannot reinstate a right that he did not have. More than a year elapsed between his acceptance of the money decreed to him and his taking this appeal. During all that time he was enjoying what the decree had given —a return of the money he had invested in the claim of tax title. And during all that time, by his act, he was causing Mc-Kain to believe that all litigation affecting his lot by reason of the tax sale was at an end. Acting upon this belief, McKain had a right to treat the property as clear, to make improvements upon it, or to dispose of it without risk of further claim thereto by Mullen or depreciation in value of the lot. Shall we now change the situation that Mullen’s own act brought forth? ■ It would not be right to do so. Mullen, having elected to.adopt a course of action, must be confined to it, so as not to prejudice McKain. He cannot in fairness revoke his acceptance of the money and his positively implied waiver of appeal. “A party waives an error when he goes by and proceeds in the case with other matters, so that it would be unjust or unfair to go back and take advantage of it.” Powell on App. Pro., sec. 96. We assume that McKain relied upon the waiver, as he. had a right to do. After the right of appeal had been lost to Mullen, then McKain had a vested right to his decree, free from review. Ho further right of appeal from the decree can be conferred. 7 Cur. Law 130. “In some decisions it has been intimated that a restitution of the money collected upon a judgment restores the right to appeal, or bring error; but in those jurisdictions
The motion is sustained; the appeal will be dismissed.
Dismissed.