72 W. Va. 632 | W. Va. | 1913
Harrison B. Smith, grantor, sues Lula D. Boyer, grantee, to enforce a vendor’s lien reserved in a deed to her for a lot on Brooks street, in the city of Charleston. From a decree in favor of plaintiff, defendant has appealed.
The court sustained plaintiff’s exceptions to defendant’s answer and struck it out, and this is assigned as error.
Plaintiff conveyed to defendant in April, 1904, by deed with covenant of general warranty. The answer avers that M. F. Clarke was the owner of the lot in 1902, and in February, 1903, sold it to M. D. Farley; that Farley sold and conveyed it to Harrison B. Smith in May, 1903; that in that year it was returned delinquent in the name of M. F. Clarke for non-payment of taxes of 1902, and sold in February, 1904, and purchased by Wm. Shoemaker, who, in April, 1905, obtained a tax deed, and then conveyed the lot to R. S. Spilman, the. partner of plaintiff; that it was returned delinquent, in the name of Farley, for1 the non-payment of the taxes of 1903, and sold in December, 1904, and purchased by defendant, and that she received a tax deed in June, 1908.
Defendant contends that plaintiff’s failure to discharge the
“A vendee cannot acquire a title adverse to his vendor by the purchase of the land at a tax sale.” Lamborn v. County Commissioners, 97 U. S. 181. It is a rule of universal application that neither party to a mortgage can destroy the right of the other by buying the property at a tax sale, if he objects thereto. The relation of the parties to this suit is essentially the same in equity as mortgagor and mortgagee, Mrs. Boyer being regarded as the -mortgagor in possession of the land.
If there had not been a second tax sale, and Mrs. Boyer, instead of Spilman, had acquired the tax title from Shoemaker, she could recoup damages to the extent of her reasonable expenses in acquiring the title, but she would not be permitted to claim under it adversely to plaintiff. Bigelow on Estoppel, (5th ed.), page 545; Bush v. Marshall, 6 How. 284.
The same rule is applicable in this suit as would be applied if Mrs. Boyer had paid the full purchase price, and had brought an action fpr breach of plaintiff’s covenant. It is well settled that, in such case, her recovery would be limited to the amount
Defendant’s obligation as plaintiff’s vendee is not affected by her purchase at a subsequent tax sale. The tax title which she acquired, being for taxes assessed in the name of a subsequent owner of the lot, operates to defeat the Shoemaker title.
The contention of defendant’s counsel that the Shoemaker tax title extinguished her title and also the lien of plaintiff, and that by her subsequent tax deed defendant acquired the land, discharged of the lien, and is, therefore, under no obligation to make further payment, is not supported by the law. The lien of a vendor can not be thus defeated.
The court sustained plaintiff’s exceptions to defendant’s answer on 21st of May, 1910, and allowed ten days in which to file further answer. On June 6th an order was entered filing further answer. But the final decree, made on June iuth, 1910, recites that the order of June 6th was improvidently entered, and set it aside, and brought the cause on to be heard upon bill and exhibits, without further pleading. This action of the court is complained of, but it does not appear why it should be considered as error. The court has control over all interlocutory orders, even after the adjournment of the term at which they were entered, and, until, adjournment of the term, has control also of its final orders and decrees. We must assume that the court properly set aside the order. Error must affirmatively appear. Only one answer appears in the
Defendant did not ask to have the money expended by her in acquiring the tax title credited on plaintiff’s lien, and it was not error to decree the full amount 'claimed by plaintiff.
The decree is affirmed.
Affirmed-.