82 W. Va. 319 | W. Va. | 1918
Upon a bill with attachment for damages for an alleged breach of warranty in a deed there was a decree for plaintiff and for a sale of the property attached to satisfy the same.
Defendant, Ms wife joining therein, by deed of September 7, 1912, conveyed to plaintiff a faiun of about 269 acres situated in Mercer County. The breach alleged was that defendant had not paid the taxes on the land conveyed for the year 1912, whereby twenty acres thereof owned by and assessed separately to defendant and his wife had been returned delinquent and sold for the taxes of that year by the sheriff in December, 1914, and purchased by one Bee, who prior to this suit had obtained a deed therefor, thereby ousting plaintiff by a better and paramount title, and whereby plaintiff had lost the same, and right of action had accrued to Mm upon the warranty of title in his deed.
That such failure on the part of a grantor to pay taxes accrued against land conveyed prior to his deed and whereby the same is so lost to the grantee, constitutes a defect of title, and a breach of the ivarranty of title, is well settled in this state. Cain v. Fisher, 57 W. Va. 492, 50 S. E. 752.
The only material defense interposed by defendant was that plaintiff was estopped by Ms conduct from setting up as
The evidence is that prior to the demand made by plaintiff upon defendant to be reimbursed the taxes paid by him he had notified him through an agent that said taxes were unpaid, and calling upon him to pay the same, but that after waiting until about the date for making the delinquent return he called upon the sheriff and finding the taxes still unpaid, and' in order to save his farm from delinquency he proposed to. pay the taxes thereon, and was presented by the sheriff with only one ticket, covering a tract of 269 acres charged to said; defendant, and which he supposed and was thereby led to believe covered the entire tract called for by his deed, being about the same acreage; that he did not know that the said twenty acres, part of said farm, lying in another district, was so separately assessed, but on the information so obtained, rested on the belief that the whole of said farm was covered by the tax ticket presented by the sheriff and paid by him on June 19, 1913, and knew nothing to the contrary until after the said twenty acres had been sold and purchased and deed, obtained by the said Bee as aforesaid.
That plaintiff made an honest effort to pay the taxes and', save his land and all of it from forfeiture is not controverted nor is it denied that when he afterwards wrote defendant, notifying him of such payment and demanding reimbursement therefor, he was acting honestly but mistakenly as to„ the twenty acres not i covered by the taxes paid.
But the authorities all agree that as this doctrine of estop-pel especially concerns conscience and equity that ignorance 'unaccompanied with culpability of any kind ought to excuse •conduct and language which would otherwise render one .justly responsible for the injury resulting to another. In 16 Cyc. 733, it is stated: “No estoppel arises where the representation or conduct of the party sought to be estopped is due to ignorance founded upon innocent mistake.” See, also, Preston v. Mann, supra; Brewer v. Boston & Worcester R. R. Corporation, 46 Mass. 478. In the case at bar the only •object plaintiff had or could have had in notifying defendant •of his payment of the taxes which it ivas the duty of the latter to pay, was to call upon Mm for reimbursement there•of; there was no intention to mislead him, or to cause him to act or to omit performance of his duty and obligation to pay Ms taxes. If defendant had responded to plaintiff’s demand and not ignored it and wilfully neglected to pay, undoubtedly he would have learned that the taxes paid was upon only a part of the land conveyed ; the tax ticket wMch plaintiff
Our conclusion is that the plaintiff is not estopped and that the decree should be affirmed.
Affirmed.