41 W. Va. 95 | W. Va. | 1895
This is an appeal taken by Samuel Eddy and others from a decree of the Circuit Court of Cabell county to which court the cause had been removed from the Circuit Court of Lincoln county.
The Transmóntame Land Company, a corporation, was the owner of certain lands, the greater portion of which were located in Lincoln county, W. Va., described as containing one hundred thousand acres, which lands were mortgaged to secure certain bonds. A suit was brought in the United States court by Frederick Prentice to subject the land to sale for the payment of the bonds, and one Howell Smith was appointed receiver. During the pen-dency of said suit the receiver, under direction of the <. ourt, borrowed fifteen thousand dollars from one William G. Sands to pay taxes on the lands for years prior to 1879. On the 17th day of October, 1883, said lands were sold by Smith and Knight, special commissioners under a decree of the United States district court, at which sale said lands were purchased by J. C. Saunders, as agent for W. G. Sands, for the sum of twenty seven thousand, live hundred dollars. On the 3rd day of November, 1883, one Otto Ker-sten bid thirty thousand dollars for said property, and offered to comply with the terms of sale; and on the 20th
This land was wholly omitted from the land books of the county of Lincoln for the years 1879, 1880, 1881, and for each of said years no taxes were assessed against the same. In the-year 1882 it was entered on the land books of said county, and assessed with taxes in the name of Howell Smith, receiver for the Transmóntame Land Company for the years 1879, 1880, and 1881, and duly assessed with the back taxes and interest for said years respectively. These lands, not having been redeemed, were returned delinquent, and in the year 1888 certified to the sheriff of said county of Lincoln to be sold to pay the taxes due thereon, with the interest and costs; but side thereof was enjoined by the district court of the United States in a suit therein pending of John Win’d and others against the sheriff of Lincoln county and others, which was prosecuted for the benefit of said Transmóntame Land Company, its creditors having lions thereon, and others interested therein. Said lands were also charged on the land books of Lincoln county for the year 1888 in the name of said Howell Smith, receiver, and for the year 1884 in the name of W. G. Sands, the taxes not having been paid, and the land returned delinquent. In the year 1885, the auditor certified said lands to the sheriff of Lincoln county for sale for the taxes for the years 1883 and 1881, but failed to certify them again for the years 1879, 1880, 1881, and 1882. The sheriff of said county advertised the land for sale for the years 1888 and 1884, as certified to him, and sold it for the taxes of said last named years, at which sale Samuel Eddy became the purchaser of the land for the taxes of said two years; and, the same not having been redeemed within one year from the date of the sale, said Eddy obtained a tax deed from the clerk of the County Court of Lincoln count}'’ to himself in pursuance of said purchase. The land was then entered in the name of said Eddy as owner upon the land books of said county for the years 188G and 1887, the taxes were paid for the years 1885 and 1886, and said lands were
Cinder said statute a suit in equity was instituted in the name of the state. The original bill does not appear as a part of the record, but on the 19th day of February, 1890, the plaintiff was permitted to file an amended and supplemental bill against Samuel Eddy, the Trans-móntame Land Company of West Virginia, a corporation created and organized under the laws of the state of West Virginia, John Ward, Robert T. French, and Thomas Foulkes, trustees, Samuel T. W. Sanford and Thomas Ball, trustees, Howell Smith, receiver, W. G Sands, Frederick Prentice, Edward B. Knight, and Howell Smith, special commissioners, in which bill were recited the fads as to the manner in which the title to said one hundred thous- and acres of land was conveyed to trustees for said Trans-móntame Land Company; that said company subsequently directed said land to lie conveyed by trustees to secure the payment of two hundred and fifty bonds of one hundred dollars each; and that, default having been made in the payment of said bonds, Frederick Prentice, a holder of part of said bonds, on the 28th of December, 1881, brought a suit in equity in the United States District Court for the district of West Virginia for the purpose of enforcing said
To this bill answers were filed by Samuel Eddy, Frederick Prentice, and Catherine Packard, heir at law and personal representative of William G. Sands, putting in issue the material allegations of the bill, and responding to said interrogatories, a portion of which responses was excepted to.
A second amended and supplemental bill was filed on the
A third amended and suplemental bill was tiled by the plaintiff charging that on or about the 15th day of June, 1890, Samuel Eddy and his wife executed and delivered to Joshua C. Saunders a deed conveying all his interest in said lands sold in the name of William G. Sands for taxes, and that said deed from Eddy and wife has never been placed upon record in Lincoln county; that said Joshua C. Saunders was president of the Transmontame Land Company, and the same person who bid in said lands in the name of W. G. Sands at the judicial sale made by Knightand Smith, special commissioners, and that said J. C. Saunders was one of those who aided, abetted, and helped to perpetrate the scheme set out and described in the first amended bill to defraud the plaintiff'and the county of Lincoln and the districts thereof of the taxes on said lands; that J. C. Clark,
Several depositions were taken and tiled in the cause, and on the 9th day of April, 1894, a decree was rendered therein, in which it was held that at the time of the alleged tax sale in November, 1885, to the defendant Samuel Eddy, the taxes on the land in the bills described were, as therein alleged, due and unpaid for the years 1879, 1880, 1881, and 1882, in addition to the taxes for the years 1883, and 1884, for which said lands were certified by the auditor for sale in 1885; that the owners of said lands from whom said taxes were due for said years from 1879 to 1884, inclusive, allowed said lands to be offered for sale for said taxes for the years 1883 and 1884 for the purpose and with the intent of avoiding the payment of the taxes thereon due for the years 1879 to 1882, inclusive, and that said Samuel Eddy, in attempting to purchase said land at said sale in November, 1885, acted at the instance and by the procurement and for the benefit of said owners, and for the purpose of avoiding the payment of said taxes for the years from 1879 to 1882, inclusive; that the alleged tax purchase of the said Eddy in the said year 1885, and the alleged tax deed thereafter made to him on account of said purchase, were in fact by and to said owners of said land, and in their behalf, and were in law and in fact a redemption by said owners from, and a payment by them of, the taxes for the years 1883 and 1884, and did not discharge or affect the liens upon said lands of the state, the county of Lincoln, and the several districts thereof for the unpaid taxes for the years 1879 to 1882, inclusive; that the tax sale of said land to the defendant Joseph S. Clark was null and void for the reasons set out in the amended and supplemental bill to the third
In determining the questions raised in this case the Court is required, as it has been in former eases, to seek among the circumstances appearing in the record a response to the question raised as to the existence of fraud in the purchase made by Samuel Eddy at the tax sale in November, 1885, and by Joseph S. Clark in the year 1889.
Fraud, like crime, seeks concealment, and its sinuous track is many times only discovered under the search light of surrounding circumstances. The language we quoted from Story, J., in the case of Reilly v. Barr, 34 W. Va. 107, (11 S. E. 750) is so pointed and appropriate that we may be pardoned for again using it: “Fraud or no fraud is generally a question of fact to be determined by all the circumstances of the case. Direct proof of positive fraud in the various kinds of covinous alienations which we are to discuss is not, as we shall presently see, generally attainable; nor is it vitally essential. The fraudulent conspirators will not be prompted to proclaim their unlawful intentions from the housetops, or to summon disinterested parties as wit
In this record we are also confronted with the unusual and unprecedented circumstance of the Transmontaine Land Company, through its officers and bondholders, seeking to sustain as valid a tax sale of its property which is
At this point we may call attention to the relation existing between several of the parties to this suit and the Transmontaine Land Company. Joshua C. Saunders, as we have seen, was its president, and for some reasons held 26 bonds of the Transmontaine Land Company in the name of Samuel Eddy. Mr. Frederick Prentice seems to have been closely connected with the business of the Transmontaine Land Company, held a considerable number of its bonds, and brought the suit to foreclose the mortgage; and Joseph S. Clark in his deposition says: “I considered Mr. Prentice worth a great many hundreds of thousands of dollars, and that his warrant was perfectly good.” Frederick Prentice seldom comes to the front in this case, but he nevertheless appears to have taken an active part in the defence of the same. Joseph S. Clark, in his deposition, in answer to question 100, says: “I represented Mr. Prentice [in this suit] and I am the general attorney of Messi’s E. W. Clark & Co., and for them have consented to certain proceedings therein because I knew they would not deny my right to do so; but I have no instructions from them, nor authority to represent them in this suit, or any one else except Mr. Prentice. I have, however, seen Mr. Eddy, and prepared an answer for him; but he takes no personal interest in the suit, and I have done this for him as attorney for Mr. Prentice.” Can it be regarded in any other light than significant that Prentice should feel more interest in this suit than Eddy, the purchaser at the delinquent sale? E. L. Buttriek was, and for some time had been, the attorney for Frederick Prentice, previous to said delinquent sale in 1885, in looking after the land in controversy; and it taxes our credulity to a considerable extent to ask us to accept as true the statement that said E. L. Buttriek merely upon the receipt of a telegram from Samuel Eddy, without any previous conference or understanding with Prentice or Saunders, would proceed at once
The appellants contended that the purchase made by Eddy at the tax sale was a civil contract made by him with the state, and that he became clothed with every right and immunity conferred upon such purchasers by the statutes of the state in force at the time of his said purchase, and it was not in the power of the state by subsequent legislation to in anywise alter or impair said contract, either directly or by prescribing new methods of procedure by which it could assault said contract, not then in existence; and cite and rely on Forqueran v. Donnally. 7 W. Va. 134, etc. If, however, the conclusion we have reached from the testimony in the case that Samuel Eddy, in making this pur
Now, it appears that although Sands purchased the land at the commissioner’s sale, Prentice held a contract for the title thus acquired by him, and Eddy acted as the agent of
As to the sale made by the sheriff to J. S. Clark, section 29 of chapter 31 was in force at that time, giving the state the express right to assault a tax sale for any defects of which the owner might avail himself. No deed has ever been made to said Clark by the clerk of said county court, and the affidavit of the sheriff, appended to the list of sales of real estate for the years 1887 and 1888, is defective, containing precisely the same defect as did the affidavit in the cases of Jackson v. Kittle, 34 W. Va. 207 (12 S. E. 484) and Hays v. Heatherly, 36 W. Va. 613 (15 S. E. 223); and, besides, the state redeemed the land from this sale by depositing the money with the clerk; and again, it is manifest that this purchase was made by Clark under an understanding with said Prentice to cure any defects that might be shown in the purchase made by Eddy, as said Clark states in his deposition when asked what understanding he had with Prentice as to what he should do with his tax purchase, that “It was understood that he should secure a tax deed in pursuance of his purchase at the tax sale, and convey said tax title to Colton and others, trustees; and the reason for this understanding was in order to cure any defects or questions of title that could be cured or settled by the tax sale or deed”—showing conclusively the object of said Prentice, and that he was seeking to deprive the state of four years’ taxes on said land by the same scheme which had been practiced by Eddy. It is but fair to said
The appellants also rely on that portion of the statute (c. 81 s. 4, Code) which says : “But if the real estate has been sold for the non-payment of taxes, the same shall not be charged with or again sold on account of any tax for any years previous to that for the taxes of which the same was made.” This statute surely was not intended to cover a case like the one under consideration, where the land is purchased at the sale by the owner or his agent, and only amounts to a redemption. 1 Blackw. Tax Titles, § 566, says: “There is a class of frauds now to be noticed which includes purchases made by those who are bound by covenant or upon legal or equitable principles to pray the taxes and yet suiter the land to go to sale for the purpose of acquiring a title against the owner under whom they claim the possession, orto whose title they are in some manner privy. Some cases hold that any person who is not under a legal obligation to pay the taxes may be a purchaser, but the better opinion is that one who holds a position of trust or confidence in reference to the subject of sale, or has a duty to perform which is inconsistent with the character of a purchaser, can not buy. If any one who has a right to redeem becomes a purchaser at a tax sale, it is merely a payment of the taxes. Any obligation, legal or moral, to pay the taxes, will prevent the accruing of a valid tax title.” Now, under section 15 of chapter 81 of our Code, “the owner of any real estate so sold, his heirs or assigns or any person having a right: to charge such real estate for a debt, may redeem, etc. Samuel Eddy, as trustee for J. C. Saunders, held certain bonds of the Transmóntame Land Company, and as such trustee had a right to charge this real estate with the debt of his cestui que trust, even if he was not, as the evidence shows, as I think, .clearly, purchasing the land as his agent, and therefore he could acquire no title by purchasing at said sale. So in the case of Christy v. Fisher, 58 Cal. 256, it was held that one who is under a moral or legal obligation to pay the taxes is not in a posi
These authorities appear to me to propound correctly the law bearing upon the questions presented by this record, and, applying the principles therein indicated to the facts disclosed, lam led to the conclusion that there is no error in the decree complained of, and the same is affirmed, with costs, and the cause is remanded.