56 W. Va. 478 | W. Va. | 1904
Lead Opinion
Eliza E. McMillen owned three town lots, numbered 189, 190 and 191, in the town of Parsons, Tucker county.' The clerk of the county court of that county, O. S. Billings, made a deed, 10th January, 1903, conveying said lots to> J. Ii. Moore and A .A. Dorsoy, which deed recites that the sheriff of Tucker county, in January, 1903, sold to Moore and Dorsey the said lots for delinquency for taxes charged against them by the town of Parsons in the name of Eliza E. McMillen for the year 1899. These lots were once owned by Kutb N. Ryder, and she gave a deed of trust on them for debt, and afterward, while said deed of trust still rested on the. lots, Ruth N. Ryder conveyed them to said Eliza E. McMillen. Afterwards the lots were sold under said deed of
The plaintiffs contend that the lots were never returned delinquent for the taxes of 1899; that the lots were never advertised' for sale as delinquent for said taxes as required by law and the ordinance of said town of Parsons; that-such lots were never sold for said taxes, as recited in the tax deed; and that no proceedings were had or notice given that would have given notice to any owner of said lots or airy one claiming interests therein-of any purpose on the part of the town or any public officer to-sell the same for taxes for 1899 or any other year. I suppose that no one will deny that there must be a delinquent list including the particular land sold for taxes. There can no more-bo a sale without delinquency, and a delinquent list, than there can he a sale without an assessment, because the statute requires such 'delinquency and delinquent list. I repeat that there can he-no salo without delinquency, and delinquency to sustain a tax sale must be proven by that delinquent list. There can be no one thing pointed out as necessary to sustain a tax sale that is more essential than a delinquent list, because it is the only evidence of that without which no sale can be made, that is, non-payment of the taxes assessed. If land is not on that list the Code, chapter 31, section 51, says that it shall be presumed'
Furthermore as to the sale. No sale list appears to prove the sale. If there had been such list, we presume it would have been furnished by the defendants. The hill says there was none, but the answer denies that allegation. Likely, as the deed recites that the lots were delinquent and sold, we have to say that some delinquent list and sale list were made and filed, as the ‘Code, section 29, chapter 31, makes it prima, facie evidence of its recitals.
Then, what is its character? Not only must there be such a list, because required by law, but it must have requisites of legal cartaintv like assessment and delinquent lists. We can only surmise the character of that sale list, if it ever existed, from the advertisement in a newspaper by the sheriff of Tucker •county of the sale for taxes under which the tax deed was made. In that section of it relating to the town of Parsons the name of Eliza E. McMillen is given in the column containing the names of persons charged with taxes, but in the column headed “Quantity of Land” there is nothing in connection with her name, nor is there in the column headed “Local Description”; but they are both blank as to property and description, and only in the column showing amounts of taxes do we find anything connected with the name of Eliza E. McMillen, the sums $23.83 for ■¿mount necessary to redeem, and $24.30 for amount of taxes, costs and fee for receipt. We are justified from this
' It appears from the Code that irregularity in the proceedings fixed by law leading to a sale for taxes will overthrow a sale, if it be of a kind to mislead those interested in the land, except as to defects cured by the Code. This follows from the language of the Code, chapter 31,- section 25, that the purchaser shall get good title, “notwithstanding any irregularity in the proceeding-under which the same was sold not herein provided for, unless
The next question is whether the land owner must pay the taxes and costs proscribed by that clause of section 25, which says that no tax deed shall be set aside.for any mistake or irregularity in the proceedings until the land owner shall pay purchase money paid for the real estate at the sale and subsequent taxes and costs of survey and report. We hold that such payment must be made as a precedent condition to the vacation of the deed. That clause of the statute is important. It is argued that as the defects pointed out above make the proceeding null, not simply voidable, it logically follows that there is no duty to>
Defendants resist the vacation of the deed because not enough monev was tendered. But a tender was made. There was lacking only a small sum, which should not defeat relief. Wyatt v. Simpson, 8 W. Va. 394. Redemption statutes are to be liberally construed. Danser v. Johnson, 25 W. Va. 381. Besides, the defendants lydused redemption because too late, and this dispenses with the question of the amount. Koon v. Snodgrass, 18 W. Va. 320; Thompson v. Lyon, 40 Id. 87.
Therefore, we bold that the, tax deed is utterly void, and we reverse the decree of: the circuit court of Tucker county and send the case back to that court- with direction to ascertain the proper sum to be paid to Moore and Dorsey by the owners of the three lots, and then to enter a decree vacating the said tax deed on payment to Moore and Dorsey of the proper sum.
Reversed.
Note by
I add this note, though likely not material. What property was sold by the sheriff belonging to Eliza McMillen? Judging by the record of the sale he could not have cried iihe salé of
Concurrence Opinion
(concurring):
I concur in the conclusion in this case, but not in point one-of the syllabus, nor the reasoning of Judge Brannon's opinion in relation thereto. Under chapter 31, Code, there are four classes of cases in which suits can be instituted to set aside tax deeds.
First. Under section 25, when the owner has been misled by some irregularity in the proceedings as to what portion of hisreal estate was sold, and when for what year or years it was-sold or as to the name of the purchaser thereof, provided he-would have redeemed the same had he not been so misled by such irregularity, and provided further that he pay the tax purchaser the amount of his purchase money and the subse-
Second. Under sections 26 and 27, when the taxes are not in arrear, bust have been once paid. To avoid the deed under this head suit must be brought within five years after the deed is made. Both these classes represent privileges reserved by the statute to the owner, and of which no other person can take advantage except by his authority. Hence the deeds by virtue thereof are rendered voidable but not void. They are good against all others except the owner, his alienees, heirs or dev-isees.
Third. Under section 9, when the officer making the sale is guilty of fraud in connection therewith, that is, holds an illegal interest therein. The cases of Phillips v. Minear, 40 W. Va. 58, and McClain v. Button, 50 W. Va. 121, which properly come under this head, were both decided wrong, because they were improperly confounded with the first class of cases as above set forth. The sales were both set aside because of the fraud of the officer, when such fraud was neither alleged nor proven, but was conclusively presumed from a defective affidavit, contrary to both the rules of law and equity. Vance Shoe Co. v. Haught, 41 W. Va. 275; Billingsley v. Minear, 44 W. Va. 657; Trustees v. Blair, 45 W. Va. 812 (32 S. E. R. 203); First National Bank v. Boreman, 36 W. Va. 649 (14 S. E. R. 989); Pusey v. Gardner, 21 W. Va. 469. The cases of McClain v. Batton and Phillips v. Minear and Johnson v. Minear, 40 W. Va. 160, are in hopeless conflict with Boggs v. Scott, 48 W. Va. 316; Gerke Brewing Co. v. St. Clair, 46 W. Va. 93; State v. Sponagle, 45 W. Va. 415.
Fourth. Under ordinary equitable jurisdiction ‘ to remove cloud from title because the deed is void for illegality or fraud. Cases under the third class naturally fall under this head, but they are put in a separate class because section 9 provides that the interest therein of the officer making the sale shall render it void. This fourth class includes all tax deeds
There are a line of cases in which tax deeds were held to be void under the law as it existed prior to the enactment of the present statute in 1882, and which have been superseded thereby, to-witf: McAllister v. Cottrell, 24 W. Va. 173; Simpson v. Edmiston, 23 W. Va. 675; Barton v. Gilchrist, 19 W. Va. 223; Orr v. Wiley, 19 W. Va. 150; Jones v. Dills, 18 W. Va. 763; Dequasie v. Harris, 16 W. Va. 360; Burlew v. Quarrier, 16 W. Va. 108.
The reasons for such holding is given in Simpson v. Edmiston, cited, and is in short that a tax purchaser is not in law a bona fide purchaser, but takes only such title as the deed gives him, and it being void for defects in the tax proceedings is a nullity and passes no title, and creates no privity between the purchaser and the delinquent owner. These cases were so decided under the provisions of section 25, chapter 31, Code, 1868, and section 25, chapter 117, Acts of 1S72-3, which is in these words, to-wit:
“AVhen the purchaser of any real estate so sold, his heirs or assigns, shall have obtained a deed therefor according to the provisions of this chapter and caused the same to be admitted to record in the office of the clerk of the county court of the county in which such real estate or the greater part thereof may lie, such estate shall stand vested in the grantee in such deed in and to said real estate as was at the commencement of or at any time during the year or years for which the said taxes were assessed, vested in the party assessed with the taxes for which it was sold, and in any other person or persons having title thereto who have not in his or their own name been charged on the assessor’s books of the proper county or district with the taxes on said real estate for the year or years for the taxes of which the same was so sold, and actually paid the same as required by law, notwithstanding any irregularity in the pro-
The present section 25, chapter 31, Code, provides that all the right, title and interest of the delinquent owner of the land shall be transferred to and vest in the tax purchaser “notwithstanding any irregularity in the proceedings under which the •same was sold noi herein provided for, unless such irregularity appear on the face of such proceedings of record in the office of the clerk of the county court, and be such as materially to prejudice and mislead the owner, of the real estate so sold, as to what portion of his real estate was so sold and when and for what years it was sold, or the name of the purchaser thereof; and, unless it lie clearly proven to the court or jury trying the case that but for such irregularity the former owner of such real e-date would have redeemed the same under the provisions of this chapter.” * * * * * * * “And no deed for any real estate sold under the provisions of ibis chapter shall bo vacated or set aside in whole or in part by reaxon of any viislalx or irregular!lij in Uie, proceedings of record' as aforesaid, unless and until the person entitled to have the same so set aside, shall pay or tender to the purchaser or his heirs, devisees or assignee, or the person holding under him or some one or more of them, the purchase money paid for the said real estate at the time of the sale thereof, and all the taxes since paid thereon for any year or years for which such person so claiming oi- those under whom he claims, have not paid taxes thereon, and the costs of the survey or report made as hereinbefore required, with interest on each sum from the dale of the payment thereof to the time of such payment by the person so claiming.” Under these provisions, which cover every possible irregularity in a tax proceeding, the deed is not void but is voidable on compliance bv the owner with the stipulated conditions; that is, showing that he would have redeemed ilie land were it not for the misleading mistake or irregularity, and on payment of the sum necessary
This is virtually confessed in the opinion, which is confusing and contradictory. If the tax cleed is void, the tax purchaser .is not entitled to have his purchase money, taxes and costs returned, for redemption is not required. State v. McEldowney, 54 W. Va. 695; Holt v. King, 54 W. Va. 441; Totten v. Nighbert, 41 W. Va. 800; Cunnigham v. Brown, 39 W. Va. 588; Simpson v. Edmiston, 23 W. Va. 675.
Yet the opinion holds the tax deed void and requires the redemption of the land by repayment of the purchase money, taxes and costs as though tile deed were only voidable on such repayment. The same omission in the return of the officer as to the lands sold is held in both the syllabus and the opinion to-render the deed void in the very teeth of that clause of section 25 which provides, “But no sale or deed of any such real estate under the provisions of this chapter shall be set aside or in any manner affected by reason of the failure of any officer mentioned in this chapter to do or perform any act or duty therein required to be done or performed by him after such sale is made, or by the illegal or defective performance or attempt at the performance of any such act or duty after such sale.” This is a most just and commendable enactment of the legislature. There is no good reason founded in equity or justice why after a sale is made, it should be set aside or affected in any manner by the failure of the state’s agents to do or perform any duty required of them or the illegal or defective performance on their part of any such duty. To allow the state or ah individual to take advantage of any such failure on the part of its officers is to allow the grantor to annul its contract by reason of the unauthorized acts of its agents after the contract is fully made and the purchase money paid, before consummation by
Agents of the state should have no power to defeat lawful r sales made by them after they are made any more than private persons should have such power. Otherwise the tona fide .tax purchaser would be at the mercy of the state’s agents after his purchase, unless he can obtain an illegal deed to cure a void sale. Notwithstanding the fallacy of this decision, it appears to be the settled law of this state, and I only mentioned it here to emphasize the fallacious construction of the same ■ clause in the present ease, and to show to what extremes a fallacy -once adhered to finally leads.