66 W. Va. 444 | W. Va. | 1909
Plaintiff brought a suit in equity in the circuit court of Wood county to coneei a tax deed as constituting a cloud upon its title to a certain lot of ground situated in the city of Parkers-burg. On the 20th of March, 1908, relief was denied and plaintiff’s bill dismissed. From this decree it has appealed.
The following are the facts, viz: On the 22nd of April, 1902, E. G. Martin and L. D. Nutter conveyed to plaintiff the lot in question. The city collector returned it delinquent, June 15, 1904, in the name of E. G. Martin and L. D1. Nutter for the non-payment of the city taxes due thereon for the year 1902, and on October 12, 1904, the city council, by order of record, directed the city auditor to' certify the delinquency to tlie State auditor; he did so February 28, 1905; and the State auditor certified it to the sheriff of Wood county for sale for non-payment of municipal taxes about November 1, 1905. All state, county and district taxes had been paid. The lot was sold in Januarj’', 1906, and purchased by the defendant at $12.66, the amount of taxes, interest and commissions then charged against it; and on the 4th day of January, 1907, the clerk of the county court executed to defendant a deed for the lot. The plaintiff in its bill makes a tender of $30.00 to reimburse defendant for the amount of expenses incurred by him in obtaining his deed.
The delinquent list was not recorded by the clerk of the county court in his office. But it appears that the city coun
At the time the lot was returned delinquent, the amended charter of the City of Parkersburg was in effect, containing the following provision in relation to the recordation of the delinquent list after it has been examined by the city council and found to be correct, viz: “A copy of said delinquent list, immediately after confirmation by the council, shall be filed in the office of the clerk of the county court of Wood county, and recorded in a well bound, permanent book, to be furnished by the city and kept and preserved in said office for that purpose.”
The case presents the following questions, viz:
First, is it essential to the validity of a tax deed that the list of delinquent real estate should be "recorded in the county court cleric’s office?
Second, is the filing of a book in the county court cleric’s office, containing the entries made by the city auditor, riot attested or authenticated by the clerk, a recording by the county clerk ?
Third, is the failure of the county clerk to record the delinquent list such a defect in the proceedings under which a tax deed is acquired as is cured by section 2'5, chapter 31, Code?
Fourth; must the delinquent list be returned by the city col
In reply to the first point, it may be said that the general policy of the law is to preserve a record, ill permanent form, of all matters relating to, or affecting, title to real estate, in the county court clerk’s office. Concerning land returned delinquent by the sheriff for non-payment of state, county and district taxes, section 24, chapter 30, Code, provides that: “The original list shall be preserved by the clerk in his office, and the list of real estate delinquent shall be recorded by the clerk in a well bound book to be kept by him for the purpose.” The provision above quoted from the city charter just as clearly intends that the list of real estate delinquent for non-payment of city taxes shall also be recorded by the county clerk in his offee. The city is only required by the act to furnish the book. The record intended to be preserved. in it is to be made by the clerk; it then becomes a part of the permanent records of the county court clerk’s office where' all matters pertaining to, or affecting, title to real estate are kept in the custody, and under the official supervision of the clerk of the county court.
The purpose of the law in requiring the delinquent list to be recorded by the clerk in his office seems to be two-fold: (1) to preserve in permanent form the evidence of the delinquency which is essential to the validity of all tax titles; and (2) to continue to hold out to the delinquent tax payer notice of the fact that his land is delinquent. Judge Jackson, of the Federal Court, held in the case of Harmon v. Steed, 49 Fed. Rep. 779, that the provision of the statute in relation to the recordation of the delinquent list was only directory, and that the failure to record such list in the clerk’s office did not render invalid a tax title. But this, in our opinion, is not the proper construction. It is not the interpretation of it given by this Court in the case of Hogan, Adm'r, v. Piggott, 60 W. Va. 541. That case holds that such recording is necessary. In the opinion, page 548, PoeeeN-barger, Judge, says: “Delinquent lists returned by sheriffs and relating to state, county and district taxes on real estate must be recorded by the clerk of the county court fin a well bound book tó be kept by him! for the purpose.’ Chapter 30,
The legislature evidently intended to provide for a permanent ■record of the delinquent list, which should be open to the inspection of the public^ and intended it to operate as a continuing notice of the delinquency, to the delinquent tax payer; and he is entitled to this continuing notice until the time expires in which he is given a right to redeem. The legislature certainly did not ihtend that the mere filing of the delinquent list in the clerk’s office should be sufficient notice; but, in addition thereto, required the list to be recorded by the clerk in a well bound book to be kept in his office. The power of an officer to collect taxes by such summary proceedings as a non-judicial sale of land is derived solely from the legislature. It did not exist at common law. This is purely an ex parte proceeding, and, notwithstanding all the precautions provided by law may have been taken, still, it is very possible that the land owner may not have had any actual knowledge of the proceedings. The law is therefore so careful regarding the rights of the citizen as to require every essential provision of the statute to be strictly complied with. “In order that a sale of land for taxes should be valid and unimpeachable, and should pass a good title to the purchaser, it is necessary that all the preliminary requirements of the statutes, made conditions to the exercise of the power, and designating the various proceedings which are to culminate in the sale, should have been strictly complied with, and that the officers who execute the power should follow with precision, in so doing, the course marked out for them by law, and that the conditions subsequent to the sale, if any, should be duly observed. And upon this point the authorities are unanimous.55 Black on Tax Titles, section 155. In support of the text, the author cites numerous authorities. Indeed, we find none to- the contrary. The question is, is the recording of the delinquent list one of those essential prerequisite provisions? 'We think it is, for the reason hereinbefore stated. We therefore hold that the recording of the list of real estate, delinquent for the non-payment of taxes, in the county court clerk’s office is an essential prerequisite to the validity of a tax title.
The amended charter of the City of Parkersburg, in force
But is this omission to record the delinquent list in the county court clerk’s office one of the defects in the proceeding by which the tax title is acquired that are cured by the provisions of section 25, chapter 31, Code? One part of this section reads as follows: “no irregularity, error or mistake in the delinquent list, or the return thereof, or in the affidavit thereto, or in the list of sales filed with the clerk of the county court, or in the affidavit thereto, or in the recordation of such list or affidavit, or as to the manner of laying off any real estate so sold, or in the plat, description or report thereof, made by the surveyor, or other person, shall, after the deed is-made, invalidate or affect the sale.” It will be observed that the
The acts to be performed antecedent to the tax sale are in their nature jurisdictional, and are, generally, essential as constituting due process of law; they are, in a sense, analogous to the judicial process, or summons, in proceedings by attachment, or to judicial proceedings in rem, the last one of these antecedent acts, intended to give notice to the land owner and others interested in the payment of the taxes, being the public sale of the land at a certain time and place, designated by the law.
The keeping of the “'City Delinquent List Book” in the county clerk’s office, containing only the entries made therein by the city auditor, and in no way attested by the clerk so as to make it a record of his office, is not simply an “irregularity, error or mistake” in the recordation of the delinquent list in the county court clerk’s office. It amounts in law to an absolute failure on the part of the clerk to record the delinquent list in a booF to be kept in his office for that purpose; and the failure to perform this duty by the clerk is not cured by anjr of the provisions of section 25, chapter 31, Code, and such failure to record is fatal to the validity of the tax deed. The filing of such book in the county clerk’s office containing only such entries as are made by the city auditor can amount to no more than a filing of a copy of the delinquent list in the clerk’s office; and is in no sense recorded by the clerk.
The validity of a tax title must be determined by the record, and the failure of the record to show the recordation of a delinquent list in the county clerk’s office is presumed to have
The charter of the City of Parkersburg requires the delinquent list to be returned by the city collector “on the first day of June in each year, after he ascertains which of the taxes in the city have not been collected.” But this charter provision is subject to the curative provisions of section 25, chapter 31, Code, and the failure to return the delinquent list in time is only an “irregularity” in the return, and is, therefore, one of the defects expressly cured by said section, after deed is made. Hogan, Adm'r, v. Piggott, 60 W. Va. 632; Hornage v. Imboden, 57 W. Va. 206; State v. McEldowney, 54 W. Va. 695.
For the reasons herein stated it was error to deny plaintiff relief ■ and dismiss its bill, and the decree pronounced by the circuit court of Wood county in this cause on the 20th day of March, 1908, will be reversed, and the cause will be remanded with directions to the circuit court to ascertain the amount of money that appellee is entitled to have refunded to him pursuant to the provisions of section 25, chapter 31, Code, and upon the payment to him of such sum by appellant, then to enter a decree cancelling the tax deed.
Reversed and Remanded-