155 S.E. 122 | W. Va. | 1930
This is a suit by the commissioner of school lands of Preston county. The bill alleges that the Auditor has certified to him as being liable to sale for the benefit of the school fund certain parcels or tracts of land, which were sold to the State at a sheriff's sale on December 15, 1925, for the non-payment of taxes thereon for the year 1923, and that the same had been reported to the court, and suit authorized. The tract in controversy in this cause is listed with several others in Reno District, and is described as "Tract No. 1566, being 873 A. fee Flag Run, delinquent and sold in the name of W. M. Ralphsnyder."
The decree of reference, after reciting that process was served on all the resident defendants (of whom the appellant was one), instructed the commissioner in chancery to report: First, on the character and location of said tracts of land, whether in fee or minerals, and the acreage in fee and minerals; Second, the advisability of dividing the large tracts into *386 small tracts, whether minerals or fee, for an advantageous sale; Third, in whose name the lands returned delinquent, and the years that the taxes have not been paid upon the same; Fourth, the amount of all taxes and interest thereon, upon the several tracts and the amount due the various funds; Fifth, and such other matters as any party in interest may require, the same being pertinent, or such other matters as said Commissioner himself may deem pertinent, or such other matters, whether so requested or not. It also directed the Commissioner before proceeding therein to give notice to all parties to the suit as required under section 8, chapter, 105, Code, and that he should report what he did to the next term of court, to which time the cause was continued.
A final decree was entered on the 31st day of December, 1928, confirming the report filed in pursuance of the decree of reference, to which report there were no exceptions, and holding tract No. 1566 liable for the taxes thereon for the year 1923 and forward, together with interest, and that if appellant, or some other person entitled to redeem, did not immediately redeem same, it should be advertised, as provided by law, and sold for the benefit of the school fund. The appellant did not appear to redeem, and after advertising the land, the commissioner made sale of it. However, owing to some defect in the advertisement the court refused to confirm the sale upon the incoming report thereof, and directed another sale in accordance with its former decree. A re-sale was had, and by decree of July 12, 1929, the same was confirmed.
The last mentioned decree recites that no exceptions were taken to said sale except such as were shown by the tendered answer of W. M. Ralphsnyder in regard to the tract in litigation; also, that on July 12, 1929, G. W. Ford and Isaac M. Ralphsnyder appeared as attorneys for W. M. Ralphsnyder and demurred to the plaintiff's bill, in which demurrer the plaintiff joined, which, upon consideration by the court, was by it overruled; and that thereupon appellant, by counsel, tendered and asked leave to file an answer, to the filing of which the plaintiff, and also the purchaser of the property, *387 objected, which objection was sustained. This decree ratified and confirmed the sale.
Is there error in any of the rulings of the trial chancellor calling for a reversal in this cause?
In regard to the sufficiency of the bill, the fact that appellant did not appear in the cause before a final decree was had therein, the bill operated as one taken for confessed. It contained the essential elements required by section 5(a), chapter 105, Code, and was sufficient. The demurrer, therefore, was properly overruled.
The commissioner's report was regular on its face. We have held that if such report is not excepted to, it is to be taken to be correct as to all adult parties, and it will not be examined by either the lower or appellate court, and no advantage of any error therein can be taken unless it be error apparent on the face of the report. State v. King,
Objection is made to that portion of the decree of December 31, 1928, which directed that the lands be advertised for sale if appellant did not "immediately" redeem same. We see no necessity for giving a day to redeem before sale. However, we are not unmindful of the general rule recognized by our decisions to the effect that a decree to sell land for debt of any kind without giving the debtor a reasonable time for payment before sale is cause for reversal. King v. Burdett,
*388 chapter 105, Code. Then what would be the use of giving a day to redeem his land before sale? We see none. The rights which a purchaser acquires under an ordinary judicial sale do not attach to sales in a school land suit until the confirmation thereof. If no injury resulted by such a provision, shall we hold it to be error? We think not.
Inasmuch as the remaining questions deal with matters set up in the answer heretofore referred to, a brief statement of its contents becomes necessary. It sets up the fact that the legal title is now in the name of John Parks, trustee, for the benefit of the Buckeye Savings Loan Company, the same having been given to secure the company in a loan to Ralphsnyder in the amount of $16,000.00; that the deed of trust is recorded in Deed Book No. 19, at page 344; and that it is still a substantial lien upon the property. This answer ends with the prayer that the sale be set aside, and that both the trustee and beneficiary thereunder be made parties defendant to the suit, and that only such portions of said tract of land may be sold as will be necessary to pay the plaintiff's delinquent taxes and the costs, and for further proceedings. Nothing is contained therein to show what equity of redemption, if any, the appellant would be entitled to should a re-sale be directed.
First let us consider appellant's right, if any, to have only such portion of the 873 acre tract sold as is necessary to take care of taxes and costs.
A proceeding to sell lands under chapter 105, Code, for the sale of forfeited and delinquent lands is a judicial proceeding — a suit, not simply an administrative proceeding. The court may in it allow anyone claiming right to the surplus proceeds of its sale to file his petition asking such surplus to be paid to him. Wiant v. Hays,
What was the effect of the information disclosed regarding the trust deed, etc.? The answer set out with particularity the existence of a deed of trust on the property. It not only gave the name of the cestui que trust but the trustee, the date that the deed of trust was executed, and the fact that it was of record, and the trust and mortgage record in the county of the sale, in which it was recorded, but also that a substantial amount of the debt secured remained unpaid. It was of record at the time of the institution of the suit by the commissioner of school lands. We have held that both these parties are necessary parties to such a suit. Asbury v. Adkins,
We must therefore reverse the decree of the circuit court confirming the sale and remand the cause with instructions to make the necessary parties and enter any such orders in relation thereto as may be right under the law.
Reversed and remanded.