67 W. Va. 392 | W. Va. | 1910
Lead Opinion
This cause is here upon writ of error granted plaintiff to a judgment in ejectment rendered by the circuit court of Baleigh county on December 20, 1907, in favor of defendant. The case was tried by the court, in lieu of a jury, upon the title papers of the respective parties and upon an agreed state of facts. Plaintiff claims title by deed from J. A. Ewart, Commissioner of School Lands, dated February 4,1901, and defendant claims the same land under a tax deed made to his immediate grantors' bearing date the 7th- of January, 1897, and recorded January l‘4j 1897. The question is purely one of title. The land was returned delinquent for non-payment of taxes for each one of two succeeding years, in the respective names of the successive owners, and was twice sold at one and the same delinquent tax sale. In one instance it was bought by K Y. and J. P. B-uckland and G-. M. Smith who are defendants’ immediate grantors, and in the other by the state who afterwards sold it as school lands to plaintiff. The land was delinquent for nonpayment of taxes assessed thereon for the year 1893 in the name of Jessie M. Myers and Nettie M. Ferguson, the then owners, as a tract of 373 acres and 119 poles. On October 14, 1893, Jessie M.-Myers conveyed her interest to Nettie M. Ferguson, and by deed dated • February 5, 1894, Nettie M. Ferguson and husband conveyed
The majority of the Court are of opinion to affirm tire judgment of the lower court for the following reasons:
First. Because by the previous decisions of this Corrrt in the cases of State v. West Branch Lumber Co., 64 W. Va. 673, and State v. Snyder, Id. 659, the state is estopped from claiming title to the land as against Bennett who claims under the tax purchasers, Buckland and others, who had obtained their deed and placed the same on record, notwithstanding there may have been irregularity committed either by the Auditor in failing to certify both years taxes to gether as one lien against the land to be satisfied by one sale, or an irregularity committed by the sheriff in failing to combine the two years taxes and make one sale of the land to satisfy both. Whether the two sales amounted to an irregularity which would render either one, or both, of said sales voidable, and whether- or not it was the duty of the auditor to certify both years taxes to be satisfied by one sale, they hold it is unnecessary to decide inasmuch as the effect of the two decisions, above referred to, construing section 29 of chapter 31 of the Code, makes the tax deed to the Buck-lands and Smith conclusive evidence against the right of the state to set up any title claimed to have been vested in the state prior to the time of the recordation of their tax deed.
Second.. The sale of the land by the school commissioner to the plaintiff Preston is not binding on Bennett who claims by deed from the tax purchasers, for the reason that he was not made a party to the bill in that proceeding and was not served with process, and did not come into that suit by petition at any
I concur fully in the majority opinion, but I think the opportunity is clearly presented to the Court in the present case to interpret section 4 of chapter 31 of the Code which sets forth the duties of the Auditor ih relation to certifying delinquent lands to the sheriff for sale, and thus to avoid any future trouble which might arise in eases like the present one. In my opinion, the interepretation of this statute furnishes, of itself, a sufficient reason for upholding the tax deed to the Bucklands and Smith as against the state’s claim of title to the land, and-a better opportunity to construe it can hardly be again presented than is now presented by the record in this case. Its construction
This section is an express direction to the auditor to include in his certificate to the sheriff all the taxes due on the land with interest thereupon up to the 1st day of November of the year in ■which the list is returned to the sheriff, “for each year.” This means taxes and interest thereon for all the years for' which taxes may be unpaid, beginning with, and including, the year for which it was first returned delinquent. The sheriff then is required to sell the land once to satisfy all those taxes. It is the auditor’s duty to ascertain all the taxes due on the land which the sheriff is directed to sell, whether the land remains' all the time assessed to one person or whether it' has changed ownership and is assessed for one .year in the name of one person and for another year in the name of another person. I 'admit that in some cases this might be difficult to do, but it is a duty that evidently ought to be performed by some one, and I think the statute clearly defines it as one of the auditor’s duties. There is' certainly no statute directing the sheriff to do it; he is to be guided in making sale by the auditor’s certificate. The auditor, in turn, is guided by the land books that come to him from the various county clerks’ offices; these are duplicates of the ones remaining with the clerks of the counties, and if the clerks have performed their1 duty in noting the transfers of the lands on the land books. it is a comparatively easy matter for the auditor to keep track of, and to identify the land. In case the land is delinquent for two several years, first in the name of one party and then in the name of his grantee, opposite the name of the person in whose name it is delinquent for the first year there will be a memorandum showing the transfer to the vendee, and opposite the name of the vendee, for the succeeding year, there will also be a memorandum on the land book giving the name of the person from whom the land was transferred. It thus becomes a very easy matter for the auditor to trace the land and the taxes assessed thereon, and to dombine the taxes in one certificate to the sheriff, authoriz
In view of the statute as it was at the time the land in question was sold, and before the statute was amended so as to require the auditor to certify to the sheriff the unredeemed delinquent lands annually, instead of Menially, the same land was twice returned to him as delinquent before he was required to certify it back to the sheriff for sale. It was properly andregularlyreturned, and he should have ascertained all the taxes due on the land for the several years, with interest to the first of November of the year in which he certified it for sale, and should have combined all the." taxes in one certificate. But his failure to do so in the present case is' only such an irregularity as 'is cured by section 25 of chapter 31 of the Code, and the tax purchaser’s deed is good by virtue of this section.
Suppose in the present case an individual instead of the state
I am furthermore of opinion that in order to authorize the state to proceed to sell land under chapter 105, Code (1906), and to give to the decrees of the court in such proceeding a binding force upon claimants, the state, must be the owner of the land. The title must necessarily be in the state before it can proceed under this chapter (section 1, chapter 105, Code). This is essential to the jurisdiction in such a proceeding, and if the state has not title the proceeding must necessarily be void. If the state claims the land by forfeiture of some former owner, or by purchase at a tax sale, it must have the' title of such former owner before it can proceed to sell the land, and if it has not, in fact, such title the proceeding is ivithout juris
The judgment of the lower court is affirmed.
Affirmed.
Dissenting Opinion
(dissenting):
The decision in this case is rested on State v. West Branch, 64 W. Va. 673. My opinion of dissent in that case, by accident, did not appear with the Court opinion, but is found in 66 W. Va. 1, and 65 S. E. 1058, to which I refer. It may be a question whether that case exactly applies to this case. Itis chapter 31, section 29, of the 1906 edition of the Code, that is made the foundation of decision in that and this case. I do not know that I presented a full view of that section in that opinion. Scanning it further I am confirmed in the opinion that the section does not conclude the state. I think its effect is that it is prima facie evidence as to the former owner, his heirs and assigns and persons having right to .redeem, as well as the state, and that such estate as section - 25 specifies passed by the tax deed,' and as to strangers is conclusive evidence of such title. Why the clause saying that the section should not bar the state and other taxing bodies from'such suit as any one claiming the land could maintain to set aside the sale? It was probably not necessary, this clause, but inserted as a precaution, to prevent any construction that would absolutely bar the state. Clearly a former owner can sue to set aside a tax deed. Cannot the state do so ? The same right is reserved to both. How can the Court make the statute an estoppel against the state when the deed is only prima facie, -and the right to attack it reserved ? The Court makes it conclusive. It is conclusive against strangers, not former owners and the state. It has been suggested that the intent was not ’ to make the deed evidence as to the state that the title of those named in section 25 passed, as the state is not sellei", or warrantor, - had nothing' in the land, and why make the act pass anybody’s title as against her when she claimed no adverse title; but waive that, and repeat
I think the sale for the later year, for a tax paramount to that of the former year, carried the better tax title. The first purchaser should have paid the tax for the second year.