161 S.E. 227 | W. Va. | 1931
On July 19, 1930, Mountain View Realty Company purchased, and had confirmed to it on that date, certain real estate situate in Raleigh and Fayette counties, sold at public auction in pursuance of a decree entered in the chancery suit of Pugh and others against D. W. Boone and others — a creditors' suit against Boone. On July 24, 1931, Mountain View Realty Company petitioned the circuit court to direct the *274 special commissioners, who sold the property, to pay the 1930 taxes thereon out of funds in their hands, or allow it abatement to the amount of the taxes on its purchase money notes yet unpaid. The Beckley National Bank, a creditor of Boone and whose debt had been decreed to be paid in the order of its dignity and priority by decree of March 28, 1930, demurred to the petition, which demurrer was overruled; the bank then answered the petition and upon demurrer to the answer, the court sustained that demurrer and certified its rulings to this court for review.
The creditors' suit was referred to a commissioner on October 14, 1929, to make report of the properties owned by the debtor, and the liens thereon in the order of dignity and priority. The commissioner filed his report on February 5, 1930, and it was confirmed without exception on March 28th, following, and a decree of sale then entered. On July 19, 1930, the commissioners sold the real estate involved here to the petitioner, Mountain View Realty Company, which sale was confirmed on that date. The master commissioner included in his report, as liens, unpaid taxes for the years 1928 and 1929, but did not include in his report, or make any mention of, the taxes for the year 1930. Indeed, he could not ascertain the amount at the time he filed his report because the taxes for that year had not been ascertained. The levies are not made on the assessed values until the latter part of August of each year.
The question here presented is whether a purchaser of real estate at judicial sale and after confirmation can obtain an abatement of his purchase money price for the amount of unpaid taxes on the property purchased by him and which was not reported as a lien in the suit.
For the purposes of this certification it may be conceded that the 1930 taxes became a lien on the property sold as of the first day of January, 1930, the beginning of the tax year, and that the taxes were personal obligations of D. W. Boone, secured by operation of law as a lien on his real estate. The fact that this lien was not reported (probably for the reason above suggested) would not divest the state of her lien on the property. Its lien still existed against that property *275
and is in no different status so far as the purchaser is concerned from any other unreported lien upon the property at the time of the sale. The ordinary lienor who fails to set up his lien after the notice to lienors, must look to any surplus left. He is penalized for not protecting his lien; but not so with the state. Mountain View Realty Company argues that the doctrine of caveat emptor does not apply to it, basing its contention in that regard on the case of Young McWhorter v.Smith,
It is also argued by the realty company that the decree of sale is not a final decree, because there is no order of distribution of the funds received from the sale and in the hands *277
of the commissioners; that therefore these funds are still at the disposal of the court without respect of priorities fixed, and the prayer of the petition could be granted by directing a payment of the tax lien from those funds, or by abatement upon the purchase money notes of the realty company yet in the hands of the commissioners. To do either would upset to that extent the decree which confirmed the commissioner's report and which fixed the liens on the real estate in the order of their dignity and priority. The effect would be to change the order of dignity and priority as set out in that decree and materially affect the bank and the other creditors who have had their liens fixed and who presumably would bid at the sale a sufficient sum to protect their liens as fixed by the decree. We are of the opinion that the decree confirming the commissioner's report ascertaining the property to be sold and the liens thereon in their dignity and priority is a final decree. It finally adjudicates upon the merits of the controversy and leaves nothing further to be done but the execution of it in accordance therewith. Our statute, section 1, chapter 135, Code 1923, recognizes such a decree as final because it provided that an appeal therefrom may be had. It says that any decree which directs real estate to be sold, or possession or title of the property to be changed, or adjudicating the principles of the cause may be appealed from. Ordinarily, an interlocutory decree is not appealable. The decree under consideration is such that a bill of review would lie to it for errors apparent upon the face of the record. InCore v. Strickler,
Ruling reversed.