64 W. Va. 546 | W. Va. | 1908
Henry C. King has appealed from certain decrees made and entered by the circuit court of Marion county in the cause of the State of West Virginia against himself and others. The suit was brought for the purpose of selling, as forfeited for non-entry upon the land books for the purposes of taxation, so much of the western Robert Morris 500,000 acre grant as lies in the State of West Virginia and is not held by purchase from the state or by transfer under section 3 of Art. XIII of the Constitution so as to prevent such sale. The suit was commenced in the- circuit court of Wyoming county in 1893. On the 30th day of September, 1897, a decree was entered permitting King to redeem an unidentified 10,000 acres of the tract, taxes on which he paid in at the time, and defining the boundaries of the entire tract in accordance with a survey made by one W. D. Sell. The State, on appeal from this decree, obtained a partial reversal of it and the cause was remanded with leave to King to file a petition, accurately and definitely locating the .10,000 acres on which he had paid into court the taxes. See State v. King, 47 W. Va. 437. Afterwards the cause was removed to Cabell county and then to Marion. While pending in these various courts and before removal to Marion county, a great many
By cross assignment of error, counsel for claimants adverse to King attacked the title of the latter. In other words they say the persons under whom King claimed did not own the land at the time of the alleged forfeiture thereof for non-entry upon the land books. The basis of this contention is that the Morris title, at the date of an alleged forfeiture between the years 1811 and 1838, had been conveyed away by persons from whom King claims to deduce title. The grant was made to Robert Morris in-1794. Soon after-wards, he conveyed the land to James Swan. A power of attorney executed by Swan, reciting that he had sold the land in the year 1797 and a copy of the deed, or a draft of a deed unsigned, with an attestation upon it signed by Swan, are relied upon to prove these conveyances. In the former paper Swan recited that he had conveyed an undivided quarter of the land to Henry Jackson, Moses Michael Hays and John Coffin Jones in trust for Pierre Leroy Dallarde, and a one-half undivided interest to John Vaughan, Henry Jackson and...in trust for John Gas-pard Schweitzer. Another basis for the claim of outstanding title is a deed dated August 30, 1830, by which Swan conveyed all of his land in Virginia and Kentucky, described as being more than 2,500,000 acres, to Samuel Allison who, by deed dated July 16, 1838, conveyed them to Darius Blake Holbrook, who, on the 18th das’- of May, 1839, conveyed
However this may be, the Morris title was forfeited and vested in the state for non-payment of taxes charged for certain years, and for non-entry for the purposes of taxation for other years. The land was taxed and the taxes paid in the name of Swan for the years 1797, 1798, 1799, 1800, 1801. 1802, 1804, 1805, 1806, 1807, 1809, 1810 and 1811. It was taxed in the name of Swan for the years 1803, 1808, 1812, 1813, 1814 and 1815 and the taxes not paid. It appears to have been returned delinquent for the three years last named. After that it was not on the land books until 1841. The act of the legislature passed December 27, 1790, provided that the title to any tract the taxes whereon were not paid for the space of three years should be forfeited and vested in the commonwealth and the land .subject to re-grant in the same manner as waste and unappropriated lands. By the act of July 1, 1829, forfeited lands were made redeemable but the title remained in the State until redemption was effected. By the acts of April 1, 1831, and February 27, 1835, it was provided that all lands lying west of the Allegheny Mountains theretofore returned delinquent .for the non-payment of taxes and which should not be redeemed by the owners within a fixed time, and all tracts of land which the owners had failed to enter on the books of the commissioner of the revenue or should thereafter fail to enter by a given time, and pay the taxes thereon, should be absolutely forfeited to the commonwealth, or the president and directors of the literary fund, and should be thenceforth forever irre-deeemable unless the owner by himself or tenants was in the
But it is contended that King has not acquired the title 'vested in Dumas. On September 29, 1846, Dumas conveyed an undesignated, unidentified 300,000 acres of the -500,000 acre tract to John Joseph Marie Schmidt Thornfeld, who conveyed the same to Auguste Marie Francois Firmin Noverre de Sericourt and Louis Desverges de Maupertius, .’legal representatives and managers of the Virginia Company of Guyandotte. On the dissolution of the Virginia Com
Conceding, for the argument, all that may be said against King’s claim, in view of these mutations of the Dumas title, it still remains that he has, but for the forfeiture, at least an undivided interest in the land under the Dumas legislative grant. The land conveyed to Thornfeld, three-fifths in acreage of the tract, was never selected, nor set apart from the balance.* Dumas, after the conveyance to Thornfeld, still-owned two-fifths of the land, not separated from the balance* and which he is not shown to have parted with. The Ran-dalls and Reeds succeeded him and sold and conveyed this interest, if nothing more. An undivided interest in land* forfeited for non-entry or sold for delinquency, entitles the owner to redeem. His interest is not severed from that of his associate. It extends to every particle of the land. In case of tenancy in common, each tenant has the right to the possession of every atom of the land and the possession of
The decree of the circuit court of Wyoming county, made •on the 30th day of September, 1897, and the partial affirmance thereof by this Court, are relied upon by counsel for the appellant as having settled, in his favor, many questions .against the state and the numerous persons who have come into the cause since it was remanded. He insists that this •decree is binding upon them as to the location of the boundary line and King’s superior title, but for the forfeiture. With the exception of certain claimants of interests in a 480,000 acre Morris grant, not affected by the decrees of dismissal now under consideration, all the parties to the original and four amended bills filed in the circuit court of Wyoming county, before the decree of September 30, 1897, was entered, were King, himself and his predecessors in title. Before the entry of the decree Alexander McClintock had filed a petition claiming a right of redemption in respect to what was known as the DeWitt Clinton survey which partially overlapped the Morris 500,000 acre tract or was supposed to do so. McClintock, however, it seems, had parted with his title before this petition was filed and really had no interest in the DeWitt Clinton land. However that may be, his interests are not affected by the decree dealt within this opinion. Thus it appears that the appellees were not made parties to the bill by name. On the appeal from
We do not think the authorities sustain the position that participation in appeal by strangers to the cause in the court below, or advancing money for the prosecution of the appeal, would make the decree appealed from, after affirmance, binding upon such persons. They had no opportunity to plead in the court below and set up their claims. In the appellate court the record is taken as made in the court below. It cannot be altered. This Court decided the case upon that record. These new parties were not called upon before the decree was entered to come in and make their defense and possibly had no opportunity to do so, because of lack of notice. A.s we read the decisions, they do not hold persons bound as parties who, because of their interest in the legal questions involved, advance money to pay counsel fees or otherwise aid in the prosecution of an appeal, or even in an action, when they' bear no relation to the party aided, such an indemnitor or warrantor, and can not be affected by the decision otherwise than as a precedent. No such relation existed between these new parties and the state. “One who is not a party to an action but who is interested in the matter determined by the judgment, does not become a party so as to be bound by the judgment by becoming a party to an appeal prosecuted therefrom and paying his portion of the- expense.” Major v.
In aid of his contention that the appellees are bound by participation in the cause after it was remanded, counsel for the appellant invokes principles applicable to intervention in proceedings in rem. It may be true that in such proceedings an intervenor must take the case in the condition in which he finds it and assert his claims subject to all prior orders, judgments and.decrees; but a proceeding by the state to sell lands, forfeited for non-entry for' taxation, or purchased at delinquent sales and become irredeemable, is not a proceeding of that kind, though it may partake of the nature thereof. The primary object of such
On this branch of the case, we conclude that none of the appellees in these appeals are precluded, by the decree of September 30, 1897, from contesting the boundaries of the Morris grant as therein defined, nor from asserting superior title as purchasers from the state or beneficiaries of transfers under the provisions of section 3 of Article XIII of the Constitution. None of these appeals involves any controversy as to King’s right to redeem land, within the boundaries as fixed by the decrees of the Marion county circuit court, not claimed by any other person. Hence, there is no occasion for inquiry as to the effect of the decree in such case, although in King v. Mason, 60 W. Va. 607. there seems to have been no doubt in the minds of the Court that the decree is binding upon the state as to the boundaries and King’s right of redemption.
Without the aid of maps, it is difficult to understand the nature and extent of the controversy respecting the boundaries. It involved the quantity and form of the survey and the identity of streams and their courses as well as the existence and identity of trees called for as monuments and the
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As has already been indicated, the commissioner to whom the cause was referred-for the location of boundary lines, as well as other matters, followed substantially the courses and distances called for in the patent, departing from them only in these particulars: He stopped the first line at pointP, considering the monuments called for as having been located there and thus shortened the line about one-third. He shortened the fourth line considerably so as to reach the point M by running a line due east. Counsel for the appellant, regarding the question of boundary as one of fact, says it was
The commissioner regarded the evidence insufficient to prove the mouth of Gilbert’s Creek and the mouth of Turkey Creek as points called for in the patent. In this he was governed by evidence tending to prove that, at the date of the survey made by Taylor, September 9, 1794, Turkey Creek was not known by any name, but acquired its name long afterwards; that Gilberts Creek was then and for some years afterwards, perhaps a good many years, known as War Creek; that the sugar trees called for in the river bottom 20 poles below the mouth of Gilbert’s Creek had never been seen by any witnesses who testified concerning them; and that Thacker Creek was once known as Turkey Creek and Island Creek as Gilbert’s Creek. Some of this evidence was slight, and by far the greater portion of it traditional. There was no effort to prove any trees or marked monuments at the mouth of Turkey Creek. In fact, none are called for in the patent. The trees at the mouth of Gilbert’s Creek as to which witnesses testified were not 20 poles below the mouth thereof, but on its bank. Evidence was taken to show that a change in the location of the mouth of Gilbert’s Creek, to the extent of about 20 poles, caused by a great freshet, had occurred, so as to make these trees stand on the bank thereof instead of 20 poles below. The commissioner was of opinion that the land 20 poles below the mouth of the creek had all been cleared and was under cultivation as early as 1838, so that certain witnesses, who claimed to have seen such trees, could not have done so by reason of their having been cut down before these
The reasoning of the learned judge of the trial court as to this western line, and the location thereof, so as to run from the mouth of Gilbert’s Creek, is in part as follows:
‘ ‘ Tajdor seems to have been specially anxious to describe line number three by giving a large number of durable monuments by which to locate it. The same description, in a general way, will be found in the amended entry of October 28, 1794, but not in the first and second entries. He says this line begins on a branch of Knox Creek, and running North crossed Knox Creek, and continuing crossed Sandy Kiver at twelve miles; that is, that from this starting point, (the three poplars and a sugar tree by a small branch,) by running North he first crossed the main stream •of Knox Creek and then the Sandy River at the mouth of Turkey Creek, that Knox Creek was a branch of Sandy River. Me find all this to be true except the direction. He says the line crossed Sandy River at the mouth of Turkey Creek. We find Turkey Creek emptying into the Sandy River. He says he ran up the North West Fork of Turkey Creek crossing Buffalo and Pigeon Creek, and crossing the dividing ridge between Sandy and Guyandotte, to Gilbert’s Creek, crossing it twice; that Gilbert’s Creek is a branch of Guyandotte River, and that he located a corner-at three*570 sugar trees in a bottom, on the Guyandotte River about 20-poles below the mouth of Gilbert’s Creek. It is said Turkey Creek and Gilbert Creek were not known by these names, at that time; well, without stopping to inquire what induced Taylor to give them such names, the fact exists that, the creeks and rivers were there then, substantially as nowr some creek, whatever its name, emptied its waters into the Sandy, and another had its mouth on the banks of the Guyandotte. Then draw a line from the Guyandotte River twenty poles from the mouth of this Creek, which Taylor called Gilbert, south, crossing the creek twice, to where this other creek which Taylor calls Turkey Creek enters the Sandy River, and then protract this line until it intersects the southern line and you have the southwestern corner of the survey. Unless Taylor’s survey is false and fraudulent from beginning to end, he must have crossed Sandy River-at the mouth of a creek, then crossing other creeks, must have reached the Guyandotte River in a bottom some 20-poles below some stream.”
For a more elaborate statement of the evidence relating to the boundary, reference may be had to King v. Watkins, 55 C. C. A. 290, an action of ejectment in which the same question was in issue and in which the evidence was very much the same as in this case, both in character and extent, except that part of the evidence introduced here had been rejected in the court below, as will be seen by reference to King v. Watkins in 98 Fed. Rep. 913. In that-case, passed upon by two able judges, Pauli, District Judge, and Goff, Circuit Judge, no doubt was expressed as to the admissibility of the evidence that went to the jury, and that evidence was the same as the major portion of the evidence in this case. The district court gave instructions which virtually bound the jury to find for the plaintiff. At least, the appellate court were of opinion that the instructions trespassed upon the province of the jury by indicating a preponderance of evidence, or weight of evidence, in favor of the plaintiff, for which reason the judgment was reversed and the case remanded. While these decisions are not binding upon this Court as authority, nor upon the parties here as adjudications, they indicate to us the opinions and views of able jurists, concerning the admissibility and weight of this evi
The additional evidence in this case, rejected by the court below in King v. Watkins, consists, for the most part, of testimony of certain witnesses to alleged declarations of Isaac Spratt, a deceased person, relative to three stumps at the mouth of Gilbert’s Creek, supposed by King’s opponents, to have been the stumps of the three sugar trees called for in the patent. It was rejected in the case of King v. Watkins on the ground that there was no proof of any paper title in the declarant. The offer was to prove by oral testimony that Spratt was the owner of adjacent land, without the production of any patent, deed or other muniment of title. The syllabus of the case, dealing with this phase of it, says: “The declarations of a deceased person are only admissible to prove the boundary line of a tract of land, on the ground that when they were made he was the owner of an adjoining* tract, where his conveyance calls for such line as a common boundary; hence proof that he was in possession under a verbal contract cannot render such declarations competent.” The objection to the evidence has not been remedied. The witnesses introduced to prove these declarations were Frederick Trent, K. P. Spratt and F. S. Stafford: Trent says nothing about Isaac Spratt’s ownership of the land. Spratt, in response to a question as to ownership, said: “ I reckon he did, he paid taxes on it, and claimed it and cultivated it.” Stafford said: “He owned the Crawford survey beginning at twenty four poles still below thére as Mr. Sell measured.it and ran up to Leander Ellises and then crossed over to the river and down the meanders of the river is the way I understand it. Then he owned over a mile of the Cloyd survey. ” The Crawford survey was a tract of 248 acres, described in the patent as lying on Guy-andotte River at the mouth of War Creek and as beginning at two beeches and a poplar on the bank of the river a small distance below the mouth of W ar Creek. It did not call for any sugar trees. The Cloyd survey, containing 7,800 acres, is described as beginning at three sugar trees • and a beech at the mouth of Peter Huff’s Creek, thence with the Guyan-
Other evidence strenuously objected to consists of certain plats made in accordance with the contention of the contesting defendants by Harmon, Reynolds and Mathews, founded upon surveys made by them, respectively, in 1847, 1884 and 1886. The Harmon survey seems to have been made some time after the conveyance by Dumas to Thornfeld and by Thornfeld to Mau-pertius and Serricourt, trustees of the Virginia Company of Guyandotte, organized for the purpose of taking over 300,000 acres of land and colonizing it. The representatives of this company, some time between 1840 and 1850, came to Virginia to locate the land, but had difficulty in finding it. Harmon made a report of his survey May 7, 1847, but to whom it does not appear. This report says it was made pursuant to a contract between Harmon and Louis Chitti, Esq., and in the brief of counsel for the appellant it is said that Chitti was an attorney in fact for
All that can be found in the record in any way indicative of an express adoption of these surveys is the recognition of the Harmon line in the deeds made to Fougeray and Smith and the representation made by Buttrick, as attorney for Reed, trustee. Buttrick wrote the letter to Chilton and seems to have used the Reynolds map in connection with that and perhaps other transactions. But it is said that Fougeray and Smith, knowing the controversy over the location of the boundary line, surveyed their own lands SO’ as to be within the Morris grant in any event. They had the right to select from the entire bound ary their tract of 13,000 acres. They did so and adopted the Harmon line and a commissioner of the court made a deed accordingly.. We do not see. how this can be regarded as an adoption, of the Harmon survey by Reed, trustee, for any purpose-
Many decisions, cited in resistance of this conclusion by counsel for the appellees, were rendered in caveat cases, in which the issue was the location of boundary lines designated in entries and surveys, before any patent issued, and while the whole matter was in -fieri. Such cases involve the settlement of the boundary line in anticipation of, and by way of preparation for, the issuance of the patent, and before title has passed or been acquired. There is much more latitude in such cases for holding parties bound by their conduct. After the patent has issued, vesting title, it is no longer a question of location in the sense of selecting land or determining where the party wants the lines to run, or what is equitable and just between conflicting entries and surveys, but the mere ascertainment of the lines called for in the patent, and, as a general rule, if they are capable of certain ascertainment and location upon the ground, they cannot be varied or departed from or overcome or set aside by mere conduct.
From the evidence bearing on the location of the boundaries, it seems difficult to say whether the calls for monuments or the calls for courses and distances were random, •or merely conjectural. Taylor’s surveys all fell short in quantity and the length of the lines and the courses were found to be very inaccurate. Other surveys fell almost as far short as this one, and the courses and distances had to be largely ignored. These inaccuracies afford ground for the belief that he did not chain the lines from monu
In view of this, it is important to note the circumstances-bearing on the probability that the two points from which, the lines were located byHarjnon, Reynolds, Mathews and the court below, are called for in the patent. The patent, says the second line ended on the waters of Knox Creek. If so, it was impossible to have run due north and crossed the Sandy River at Thackers Creek. Nor could it have-crossed Knox Creek in so doing. It would have gone far to the west of it. It might have crossed at or-near - Beech Creek, but in that case, it would have gone directly down Knox Creek, and, after crossing the Sandy River, Pigeon Creek and dividing ridges, down the Island Creek Basin, crossing numerous branches, some of whicR
That Taylor did not know the country, nor the names, locations and relative positions of the streams, or knowing them, relied on his recollection in drafting the erroneous plat, returned with his survey, constitute the shibboleth of the argument against the actuality of the survey. A plat of a survey, made by him Jor Kettera, about six months •after he had surveyed the Morris tract, shows that the more important streams had then acquired the names they bear now. It shows that what are now known as Island Creek and Mate Creek bore the same names then. Horse Pen Fork of Gilberts Creek was designated “Horse Pen Creek” on it, and the relation it bears to Island Creek in respect to position and distance, fairly indicated. Against the use of this Kettera plat, for the purpose of showing the names then applied to the streams and Taylor’s knowledge thereof,
As we have indicated, much, evidence was introduced to prove that Gilberts Creek and Turkey Creek acquired their present names long after the Morris survey and that Island Creek and Thackers Creek were once known, respectively, as Gilberts Creek and Turkey Creek; but, regarding it as true and worthy of credit, it is indefinite as to when these creeks were so named, and whether they bore these names in 1795. On the contrary, Island Creek appears to have been known to James Taylor by its present name only a few months after he made the Morris survey. He also knew a branch of Gilberts Creek then had its present name. These and other salient circumstances disclosed by the evidence preclude us from disturbing the finding of the circuit court on the question of boundary, and except in so far as it purports to take away rights vested in any person by the decree of September 30th, 1897, as modified and partially affirmed by a former decree of this Court, we affirm the decree of December 6, 1905. But it is too broad and must be limited as aforesaid.
The lands of Egbert Mills and others, William J. Can-ady, Robert White and others, Joseph and Geo. W. Hinch-man, Richard Torpin and others, Trustees, W. A. Johnson, A. H. Toler and others, James Hatfield, Bruce McDonald and others, Alexander Yarney, Chas. L. Tracey and Elijah Eerrell and others were dismissed as being wholly outside the boundaries of the Morris grant, as fixed by the decree of December 6, 1905. That they are outside of it as so bounded is not questioned. Affirmance of the decree as to the boundary lines necessarily sustains the decrees of dismissal as to these tracts, and we need not further discuss them. Later decrees dismiss as to them under section 6 of chapter 105 of the Code.
All the other dismissals were based upon motions, accompanied by patents and School Land Commissioners deeds, under section 6 of chapter 105 of the Code, as amended by the act of 1905. These are not complained of otherwise than on the theory of invalidity of sections 3 and 6 of Article XIII of the Constitution, certain provisions of chapter 105 of the Code, and the amendatory Act of 1905. All of
It results from the views and conclusions, herein áta-ted, that the decrees of dismissal, complained of, must be affirmed.
Affirmed.
King insists that the Act of 1905 invades, in fact, destroys vital rights vested in him before its passage. He says that it divests vested rights of property, and impairs the obligation of his contract, and deprives him of property without due process of law, and is a violation of both federal and state constitutions because it does so. His theory is that when he filed his petition asking the privilege of redeeming the land from forfeiture for non-entry on the tax books, and when it was declared by the decree of September 30, 1897, that he had superior right to redeem over all others, section 17, chapter 105, of the Code, as 'that chapter was re-enacted February 23, 1893, gave him the right of redemption, and such right was by that decree adjudged to be vested in him. The claim is that the Act of 1905 ret-roacts and infringes upon such rights antecedently existing. It becomes thus material to see what rights were in King under the Act of 1893; to see under what conditions or restrictions they were,placed by that act, to enable us to say whether the Act of 1905 lessened King’s rights. The decrees’complained of in this appeal dismissed the suit as to •certain tracts and thus denied King’s right to redeem those tracts, and thus lost title as to them to him. This was done because the persons owning these tracts showed facts giving them a transfer of the state title under forfeiture by force of section 3, Article XIII, of the Constitution, or because they claimed under sales made by the state in suits to sell forfeited land brought under chapter 105
Above I have sought to show, to repeat, the limitations or restrictions imposed upon King’s right of redemption by the law in force under the Act of 1893 when he sought redemption. It now becomes material to see wherein the right of redemption of King has been worsted by the Act of 1905. Acts 1905, chapter 42; the Code published in 1906, sections 3518 and 3531. There we find that, “Any tract or parcel of land which has been heretofore forfeited, or treated as forfeited, waste and unappropriated or es-cheated, and which has been sold and conveyed as such under chapter 105 of the Code, or other act since 1872, or which any instrument executed under such decree or order purports to convey, shall not again be proceeded against or sold in any suit now pending or hereafter brought,” unless since such conveyance or - instrument the tract or parcel has itself been forfeited. I do not see how this deprives King of any right which he had before the act, or imposes any restriction on redemption not before upon it. It says that such land shall not be sold a second time. The old law said the same. Another clause says the court shall have no jurisdiction, power or authority to either sell or allow redemption of such a tract before sold, unless the state or other claimant allege and prove that such tract itself has become forfeited. This, so far as resale is concerned, only reiterates or emphasizes for care that there shall be no second sale of such tract, unless it too is forfeited. Of what importance is the feature taking away jurisdiction to sell ? It does not mean that the court is without color of jurisdiction in the whole case. It is only another way of saying there shall be no resale, or that if there is resale, it shall be void, or that upon its appearing that the land has been once sold, the court shall stop and dismiss the tract from the case. King is not ‘ by this clause harmed, if in fact his title had been forfeited and it had gone to a purchaser under such sale. That was the law by the Act of 1893. That said that
The act says there shall be no new sale or redemption to-the prejudice of any other grant, survey, piece or boundary of land which has been or is claimed to be forfeited, unless the state or claimant proves by a certificate 'of the auditor or clerk of the county court that such tract or parcel has, since the date of the conveyance under such former sale, been forfeited and so remained, and that in the absence of such allegation and proof the court shall have no jurisdiction either to sell or allow redemption against such other grant, survey, piece or boundary of land. I suppose that though such tract has been once sold, yet if it has been since forfeited, the state could sell it again or allow some other claimant, as King, to redeem, and- that such sale would pass all forfeited title, and that such redemption would give back the title of the redemptioner and also the title of the one who had purchased at a court sale. This may be so. This feature of the statute takes from King no right. After the statute has declared that there shall be no second sale; after the purchaser at the court sale has proven his right, he has shown a right to protection, and if the party asking to redeem, and whose right to redeem has apparently been lost by the sale shown by such purchaser, why should it not be the burden of the one asking redemption to prove that the right of such court purchaser has itself become forfeited? This clause only relates to proof, to evidence. It takes away from King no right which he had before. The sale had already taken away the right of redemption by the old law, and if he wishes to say that such sale would not debar redemption, he must prove it by showing that the right of his adversary has itself perished by forfeiture. The Legislature can, without infraction of the constitution, direct evidence, change the rules of evidenee, fix the burden of proof, even as to preexisting contracts and rights, provided it does not destroy the contract or right. Cooley’s Constitutional Limitations, 286, 288, 361. “ The right to have one’s controversies determined by existing rules of evidence is not a vested right. ”
The act of 1905 says that a copy of a conveyance under •a court sale, or of a purporting conveyance from the record, shall be evidence of the court proceeding. As said above upon authority this is á legislative provision that a document shall be prima facie. Such enactments are common, and constitutional. An instance is found in Code, chapter 31, section 29, making a tax deed pidona facie evidence of •certain things. Dequasie v. Harris, 16 W. Va. 345, holds it valid; and upon eminent authority there found it is said, “That the Legislature has the constutional power to •change the common law rule of evidence, and to declare that "the tax deed itself shall be received in all courts as prima .facie- evidence that certain or all the prerequisites of the common law have been complied with, and thus shift the onus proiaoidi from the purchaser to the owner, is clear and unquestionable, and has been almost universally admitted.” Marx v. Hawthorn, 148 U. S. 172, so holds.
The statute of 1905 authorizes a defendant in a suit to sell state lands for forfeiture to file letters patent, or copy thereof, purporting to grant land, and says that if he shall show that the land therein conveyed is within the land sought to be sold, the court shall dismiss the suit as to so much of the land referred to in such letters patent as lies within the forfeited land sought to be sold, unless within thirty days the state shall amend her bill and allege and show by cer-terficates of the auditor or the clerk of the county court that such tract is forfeited in the name of the grantee in such letters patent, his heirs, devisees or assigns, or unless some
It is very apparent that this Act of 1905 does not wholly take away King’s right of redemption or lessen it as it existed under the Act of 1893. . Let us note that this act does not at all deny King or any party whose land it is sought to sell the right to deny the forfeiture alleged as the basis of sale. Nor does the act deny King’s right to contest in any legal manner the right of his adversary. He can show that-the patent or deed of his adversary is forged. He can deny that there was a court sale. He can contest the right of his. adversary on which he seeks to bar redemption. The act, it is true, says that certain papers when produced shall be evidence sufficient to prevent sale and to cause dismissal of the suit as to controverted land; but it only makes that, evidence %>rimafacie; it does not make it conclusive evidence, and" close the door against evidence to repel it. In-short, the act in these respects bears only on evidence and procedure in the court, a matter within the power of the-Legislature. King argues that by State v. Jackson, the junior claimant must prove his right, as if the Act of 1905. changed this. That required him to prove his grant or deed.. When produced it has, ought to have, against the state legal' effect to pass its right, and if the state right passed, it left, nothing to be redeemed. The burden is yet on the claimant to show his title.
I said above that King claims that his right of redemption constituted a contract; that the state by her act offered
King adds that the decree of redemption of September 30, 1897, gave vested right. It declared that King had right to redeem, and he paid in a sum of money computed as the sum proper to redeem 10,000 acrés as the part of the 327,-
That provision of the Act of 1905 that if it appeared to the commissioner of school land that any land proceeded against is not liable to sale for the benefit of the school fund, he shall report the facts and reasons to the court, and if the court approves it, on investigation, it shall dismiss the suit as to such land, is nothing, but a repetition of other provisions of the statute already discussed. It is only another declaration that if the land has been transferred to another, or has been sold as forfeited under decree, it shall be discharged. Or if it be found that the land proceeded against is not really forfeited, it shall be discharged. Surely all this is within the competency of the Legislature. It is but a repetition of prior provisions. It simply pertains to remedy by authorizing the commissioner to recall his report and abandon a sale, and thus do away with useless further steps in a suit originated by him, after further investigation. The state sold under decree and got the purchaser’s money, and morally she should make it good by the transfer of any title in her.
The Act of 1905 in section 19 provides that any right or title of the state at the date of the sale or conveyance thereof by a commissioner of school land under order of a court in proceedings to sell as school land, however such title of the state may have been derived, shall be deemed to have passed to the grantee thereof under such sale, notwithstanding any irregularity or error in the suit or sale or con
Another clause of section 19, Acts 1905, says, that if land sold under court decree was charged with taxes, and the-grantee has paid all taxes assessed for at least five successive, years, and the land was not at the daté of the act forfeited in the name of such purchaser under decree, then all the-right of the state acquired by forfeiture of another title should be granted and relinquished to such purchaser. This, feature of the act cannot be.questioned. The state has always through many years transferred to other claimants, meritorious in its eyes, titles acquired by forfeiture or escheat, in order to merge and unify conflicting titles and vest them in one person, and perfect title and give peace and repose to settlers, and improve the country. The state should make her sale good with any title she may have.
Fault is found with those provisions of the Act of 1905 authorizing the dismissal at once of the state’s suits upon its appearing that land of certain defendants is not liable. It seems to be thought that this is hasty action, and that those defendants and their lands should be kept in protracted litigation until the full disposition of the suit. Is that the objection? If so, it is untenable. It is common chancery practice where there are numerous defendants with separate interests to dismiss as to them when their cases are ready for hearing, and continue the suit as to others. In this suit there are many, many defendants with separate claims of title to separate tracts, one’s case having nothing to do- with that of another. If the case justifies dismissal, why should such a defendant be kept in court? Not only did the Act of. 1905 authorize his prompt dismissal from the suit, but section 6 of chapter 105,'as enacted by chapter 24, Acts of 1893, in force when King came into the case, commanded the court, “ If at any time during the pendency of the suit it shall appear to the court, that any part of any tract of land in question therein,” had been sold as school lands under decree or transferred under section 3, Article XIII. of the Constitution, to dismiss the bill as to such part
It is said that the Act of 1905 is violative of th.e Four-' teenth Amendment of the Federal Constitution because it takes away property without due process of law. What property had King to be taken away? It had gone to the state, under her forfeiture laws- But it is said that the forfeiture laws are repugnant to that amendment. We have several times held that such is not the case, and we decline to reopen or reconsider this question, and will simply refer to the cases. King v. Mullins, 171 U. S. 404; Webb v. Ritter, 60 W. Va. 193, pts. 27, 28; State v. Sponaugle, 45 Id. 415, and cases there cited.
I repeat that the Act of 1905 does not take from King anything which he had under former law; it made no further restriction, its new provisions relating only to the prescription of evidence and procedure, matters within the power of the Legislature without infringment upon the Constitution. But suppose the act did so. I hold that it would be within the legislative power. What kind of a suit is it? A suit of State to sell its own land, not a suit to secure redemption for King. The state need not have instituted the suit or allowed redemption. There was no duty on the state to allow redemption. It was a mere grace, not obligation, out of which no vested right in King could grow. The title was in the state; King had no right of redemption which the state by legislation could not qualify or even repeal. The state as to its own absolute property can dictate terms of grace, mere grace.
From first to last “the whole history of legislation of Virginia and of this state on land titles show a strong and manifest purpose to protect the rights of actual settlers and occupants of land against the assertion of abandoned claims and neglected surveys held by adventurers and delinquent owners.” Garret v. Ramsey, 26 W. Va. 345. The Court by Judge Snyder, said that the whole history of this legislation showed a most earnest and determined effort on the part of the Legislature, the Judiciary and the people by the consti
It has been suggested by an amicus curiae after this •opinion had been written that the Act of 1905 is unconstitutional because Article» XIII., section 3, specifies three classes of persons to whom forfeited title shall go, while the act gives state title to persons not filling the demands of section 3, possessing less qualification to take the forfeiture, thus defeating the operation of section 3; that a person not qualified as that section demands might come in before one claiming under section 3, as for instance a purchaser under a deed from a school commissioner, with shorter possession, or without any possession or' payment of taxes. The answer is, as to the transfer of state title to former purchasers, that if at the date of the sale by the commissioner there was a person entitled to take under the constitution, the sale passed nothing, since the state had nothing to pass as title had already gone to the transferee under the constitution. If we construe that provision of the Act of 1905, which simply says that land once sold shall not be sold again, not expressly giving the purchaser state title but as, in effect, giving to the purchaser state title, because forbidding its sale, we make the same answer, that is, if the state had no title, but another transferee had, there is no title to pass from the state, and as there was no person in condition to take state title, then there was nothing, no person, to prevent the gift of state title to the purchaser under the court sale. For instance, suppose a person in possession under a junior title, or under color of title — in short, one whose condition to take state title was not then mature, but becoming so, as one in possession nine years under the first class or four years under the last class — his status not yet ripe to take — could not the state grant away the land, and thus defeat the maturity of the man in possession for nine or four years ? lie had not yet matured a condition entitling him to take state title; no vested right,
It is suggested that the Act, sec. 19, validates prior deeds, and is unconstitutional, if the state had no title at the date of sale. The act simply transfers state title, if it had any. If it had gone to another, the court sale passes no title. The sale, it is said, would be void if the state had no title and legislation can not validate a void thing. It may not do so as to others; but it can make it good as to itself. 8 Cyc. 766.
But our amicus argues another feature against the validity of the Act of 1905. He says that Article XIII., section 3, of the Constitution, defines three classes of persons only who may take the state’s title; whereas, this act creates a fourth class in purchasers at court sales by the commissioner of school lands. Do we need authority to warrant us to say that a state legislature can do anything not forbidden by the state or federal constitution ? Where is the provision that shall keep it from transferring forfeited land to persons whom it shall select, in order to further the high public purpose of merging and settling conflicting titles, and furthering the settlement and improvement of the country, and suppress litigation? The National Congress is limited. It has no power but that given by express or incidental grant of the Constitution; whereas a state legislature is different; it can do anything not forbidden by the constitution. Pierce v. Kitzmiller, 19 W. Va. 572; 8 Cyc. 771, 777. This brings up the question, Does the Constitution forbid the legislature making a fourth class of trans
Who shall question the constitutionality of the Act? The state is not doing so. It may be doubted whether King can, he having no title because of forfeiture, his claim to redemption not being a vested property right. “The Constitutionality of a statute affecting real estate cannot be questioned by those who have no interest in such real estate.” 8 Cyc. 790.
Some time after writing the above opinion, I conclude to add some authorities touching the question of the validity of our forfeiture laws as regards the Fourteenth Amendment, thinking they may be of some service for reference.
In State v. Sponaugle, 45 W. Va. 415, it is said that whether given action is due process depends upon the nature of the subject; that what would be due process in one instance would not be in another. In this instance we deal with that great power, in which the state is vested with power so wide, the power of taxation. There we remark, on authority of Witherspoon v. Duncan, 4 Wall. 210, “ The states have, as a general rulé, right of determining the manner of levying and collecting taxes on private property.” We must not forget this. There we said that process of collection or enforcement of taxes long used, as in the two Virginias by forfeiture, had always been regarded, before the amendment, as due process. And Kelly v. Pittsburg, 104 U. S. 78, says that systems of taxation established are not affected by the amendment. In the Sponaugle Case it is said that due process does not always require judicial proceeding, and that tax collection does not. Reference was made in the Spon-augle Case to the case of Murray v. Improvement Co., 18 Howard 272, where a distress warrant issued by an executive officer for a balance due from a collector of customs, under which sale of land was made, was held due process. There was no decree for sale. McMillan v. Anderson, 95 U. S. 37, says that suit is not necessary to collect taxes. Is the manner of enforcment of payment the established usual mode of the state? If so, it is due process under the amendment. Hurtado v. California, 110 U. S. 537. What
Since King v. Mullin, 171 U. S. 404, held our forfeiture law not repugnant to the Federal Constitution, the case of State v. Swan, 46 W. Va. 128, again sustained them, and on appeal to the U. S. Supreme Court that court again held likewise, following the Mullin Case. Swan v. State, 188 U. S. 739.
In United States v. Repentigny, 5 Wall. 212, was a grant to be forfeited on failure to improve. It was held that forfeiture vested title in the goverment, and that “ under our system of legislative act, directing the possession and appropriation of the land, is equivalent to office found. The mode of asserting or assuming the forfeited grant is subject to legislative authority. ” Page 268. It was held that forfeiture vested title in the government without judicial declaration of forfeiture. In McMicken v. United States, 97 U. S, page 217, the Supreme Court said: “This court has in several cases maintained the doctrine that an actual entry or office found is not necessary to enable the government to take advantage of a condition broken, and to resume the possession of lands which have become forfeited. It was so held in United States v. Repentigny's Heirs, 5 Wall. 211; Schulenlerg v. Harriman, 21 Id. 44; and Farnsworth v. Minnesota & Pacific Railroad Co., 92 U. S. 49. In Repentigy's Case the court says: “The mode of asserting or assuming the forfeited grant is subject to the legislative authority of the government. It may be after judicial investigation, or by taking possession directly, under the authority of the government, without these preliminary proceedings.” In Farnsworth v. Minn. Pac. R. R. Co., supra,, it was held that if a grant to a railroad company on condition of construction should be forfeited the forfeiture may be declared by legislative act without judicial proceedings. So, by those decisions and the decisions of our courts upon our forfeiture laws, title at once vests in the state, and right to actual possession would follow. The state has title and constructive possession incident to title. In Fairfax’s Devisees v. Hunter, 7 Cranch, p. 622, Justice Story said: “As to the first point we will not say that it was not competent for thé legislature by special act to have vested the land in the commonwealth without an inquest of
Again. These forfeitures are by constitution and statute, not by common law. “ When forfeiture accrues at common law, nothing vests in the government until some legal step shall be taken for the assertion of the rights, and then for many purposes the doctrine of relation vests the title as of the time of the commission of the offense, If, however, a forfeiture is provided for by statute, it is said that the rule of the common law does not apply, and the thing forfeited may vest either immediately or on performance of some particular act, as shall be the will of the legislature. If the forfeiture is declared by statute in absolute terms, not in the alternative, it is held bjr the great weight of authority that the forfeiture takes place at the time the prohibited act is committed and the owner is divested of title eo im.stam.ti, the forfeiture operating as a statutory transfer of title to the government. ” 19 Cyc. 1362. We have the high authority of Chief Justice Marshall in United States v. Grundy, 3 Cranch 337, he saying “When a forfeiture is given by statute the rules of the common law may be dis
If it be said that some of these cases were before the amendment I reply that I cite them to show that the procedure was the usual one, consistent with law of the land, and being due process before, so it is since the amendment. The amendment does not define due process; what was such before it came, is since. Barbier v. Connelly, 113 U. S. 27. Forfeiture laws prevailed in Virginia long, and have prevailed in this state long. Titles covering counties rest on them, and their overthrow at this late day would spread disaster wide.
Affirmed.
