64 W. Va. 610 | W. Va. | 1908
In this case opinions upon other questions than the ones now to be discussed are delivered herewith. It is well to refer to these for an understanding of the general character of the case and matters involved in it. It is also proper to refer to decisions in this case as reported in 47 W. Va. 437 :and "60 W. Va. 607. In this appeal from the decree of January 11, 1908, distinct facts are involved. Many of the questions governing them, however, have been determined in the other opinions. For this reason, we shall, as far as practicable, avoid reiteration or extended •discussion.
By the decree complained of, Buskirk, trustee, for him
King’s claim of title to the 500,000 acre Robert Morris grant is well recited in other opinions, to which we have referred; likewise, the location of the 480,000 acre grant to-Morris, adjoining the other on the east. Their location and relation to each other have been heretofore fixed by decree of the court below and affirmed here. As determined as. aforesaid, these two grants are distinct and do not interlock. And by that finding, the so-called “20,000 acres” claimed by Buskirk are not within the 480,000 acre grant, nor do they conflict with it. But a portion of the 20,000 acres is within the boundary as determined in this suit, by decree below and affirmance here, to be that of the 500,000-acre grant.
And now let us inquire as to the title upon which Buskirk claims. One Adams, in 18Y9, claimed to own the 480,000 acre grant. One of the deeds in his chain of title was. forged, it seems. This would be important elsewhere, but,, from the view we take of the case, it is not here. Adams conveyed the 480,000 acre grant to Jesse R. Irwin in the year aforesaid. Irwin paid no taxes. By proceedings on the part of the Commissioner of School Lands of Wyoming county, begun in 1881, in the circuit court of that-county, the 480,000 acres were sold and purchased by Irwin. This sale was confirmed by the court’s decree, in which McClure, commissioner as aforesaid, was directed to convey to the purchaser, reserving, as in the sale, all junior claims within the grant protected by the constitution and laws, and all lands therein sold by the Commissioner of School Lands. McClure, conveyed, as directed, to-Irwin, on March 25, 1886. This deed, consistent with the proceedings leading to it, purported to convey the land by metes and bounds of the calls in the original patent and respected the reservations aforesaid, denominating the land as 40,000 acres — 20,000 in Logan, 10,000 in McDowell and 10,000 in Wybming county, be the same more or less. This.
It appears that after McClure conveyed to Irwin the latter made certain conveyances which led to a conveyance to Emma Idalia Pomeroy, dated July 28, 1893. These intermediate conveyances did not specifically locate or describe the 20,000 acres. The deed to Mrs. Pomeroy did. It sufficiently locates and describes the land now claimed by Buskirk. At that time the taxes were in default. And Mrs. Pomeroy also neglected to pay taxes. For the year 1894 it was returned delinquent in her name and for the year 1893 it was returned delinquent in the names of some of her predecessors in title. In December, 1895, it was sold by the sheriff of Logan county for these delinquencies, bought by the State, and, not being redeemed as required by law, it became forfeited to the State. Upon the making of a report to the circuit court of Logan county by Hinchman, Commissioner of School Lands of that county, that these 20,000 acres had become forfeited to the State and liable to be sold for the benefit of the school fund, as aforesaid, that commissioner was directed to commence proceedings for the sale of this land. Such proceedings were begun at July Pules, 1897, in the name of the State. These proceedings clearly show that the tract involved therein as forfeited under sale of delinquency in 1893 and 1894 as aforesaid, was the 20,000 acres in controversy. Mrs. Pome-roy and former claimants to the title which had been conveyed to her were made defendants. King, however, was not made a defendant in this suit. After the cause had been committed to a commissioner and a report had been made by him, there was decree on April 29, 1898, ascertaining the taxes and interest then due and unpaid, and directing sale if the amount so ascertained and the costs were not paid within thirty days. Hinchman, Commissioner of School Lands, was appointed to sell. He made sale, as required by said decree, on the 18th day of October, 1898, and Stoddard and Hall became the purchasers. On November 3, 1898, this sale was confirmed by decree, and Wil
Buskirk, trustee, has become the owner of the Stoddard and Hall title. We have, therefore, seen the basis of his claim to the land. A large portion of the 20,000 acres is in the 500,000 acre Morris grant. And more is in this Morris grant as extended by courses and distances. King would have the right to redeem that portion were it not for the Buskirk claim. Has he lost his right to redeem because of the purchase of the land by Stoddard and Hall in the aforesaid Hinchman proceedings, or by reason of a right acquired by them and their successors in title by transfer under the constitution and laws?
This suit was pending in Wyoming county prior to the institution of the Hinchman suit and the sale to Stoddard and Hall thereunder. King claims the right to redeem this land by the decree of September 30, 1897, which antedated the sale to Stoddard and Hall. While the predecessors in title of Mrs. Pomeroy were parties to that suit, yet she was not when the deci’ee of 1897 was entered, although she, owned the land when that suit was begun; neither was she nor Stoddard and Hall and their successors in title parties thereto pending the Hinchman proceedings in Logan county. We need not reiterate what has been said in other opinions herein as to this Wyoming decree of September 30, 1897, its standing and effect. All that is well stated elsewhere. Suffice it to say that while the 20,000 acre tract is to an extent within the 500,000 acre survey, the Wyoming decree cannot affect the former if it has been sold by the State, and the State’s title has thereby been passed to another prior to a decree of actual redemption by King. It is conced that no such decree of actual redemption has yet been entered. What right exists in King by the Wyoming decree, as modified by the mandate of this Court upon appeal, that protects from the State’s'disposal any land within the bounds named until he consummates actual redemption by specifying the land and paying true amount therefor? The forfeited land is subject to disposal by the State until he pays full money for redemption and the
The King title became forfeited and vested in the State with the year 1888. This was for non-entry on the land books. Thereafter it belonged to the State. Whatever property related to that title was distinctly the State’s property. It could do with it as it pleased. It is not our purpose however, to discuss the reason and propriety of the forfeiture laws, their effect or validity. This is an old subject. It has been fairly and learnedly dealt with by others. These laws are the well settled policy of a growing and prosperous commonwealth. It would be a late day for this Court to disturb this policy that has been so fruitful of the State’s growth and prosperity. Whatever may be said, and despite fine spun technicalities of constitutional construction to overthrow the principle, to the patriotic citizen or landowner, it is neither illegal nor inequitable for an owner of land to be divested of his title by his own act or negligence in failing and refusing to contribute to the support of the government which affords protection to that property and to his person. Lands forfeited to the State may be sold by it or the former owner may be permitted by it to redeem them. The State need not, if it sees fit, extend such grace ■or privilege. But this grace or privilege of redemption has been extended by our state to the former owner, yet with .■a limitation. It does not pertain to lands that have been already sold as forfeited nor to lands which have been transferred to or vested in another pursuant to the constitution and laws. The former owner must consummate his redemption before these things take place; otherwise, the privilege of redemption is denied him. Sales by the State, •or transfers under the constitution and laws, produce a revenue for the support of the government. Settlement and residence by bona fide citizens are also encouraged by such sales and transfers.
King insists that since the Wyoming suit was pending when the Hinchman suit was instituted and since he was not a party to the latter, the purchase by Stoddard and Hall cannot affect his rights to redeem. But he has no vested right to redeem. So we have held. Judge BeaNNON elucidates this subject, in the opinion filed by him. Under the law, as stated hereinbefore, he shall not be granted the privilege of redemption after the State has held out the land and invited a purchaser therefor, which purchaser has fully complied with the State’s offer. To permit redemption under such circumstances would tend to unsettle and not to settle such titles; it would tend to discourage rather than to encourage the payment of taxes and the support of the government. In view of our statutory law we cannot believe that the State was wholly forbidden to institute the Hinchman suit while the Wyoming suit was pending and to sell the land thereby, since that suit was based upon the forfeited Pomeroy and Irwin title, even though we must say that the sale therein carried to the purchaser the title the State had acquired by the King forfeiture. Nor need we determine whether it was absolutely. necessary to make King a formal and direct party to that proceeding. However this may be, it clearly appears that King had knowledge of 'that suit, and could have intervened by a prayer to redeem in ample time before the sale to Stoddard and Hall. The time he should have spent in preparing and filing a petition to redeem and depositing with it the money for such redemption, he spent in undertaking to enjoin the sale, by process from the Federal Court. He did not ask to redeem, as the law permitted him to do. He seems to have bent upon obstruction of the State in producing a revenue from forfeited titles and not in the payment of money for redemption of his forfeited title.
But granted that there was irregularity in the sale to Stoddard and Hall, either by reason of the Wilkinson deed, the lack of deed if there is none, or the absence of
. But has the title of Stoddard and Hall, or their successors, become forfeited to or vested in the State since the purchase aforesaid? If it lias, and the State again owns the land, shall
It is contended on behalf of Buskirk that the forfeited title of King became vested in or .transferred to him by virtue of the force of section 3, Article XIII, of the Constitution of West Virginia. But why discuss this feature of the case, since we have held that whatever title the State had by reason of the King forfeiture at the date of the sale to Stoddard and Hall was passed to and vested in the Stod-dard and Hall title by a plain legislative grant, to-wit: that transferring and validating act in section 19, chapter 105, of the Code? This act, by its very terms, gave to Stoddard and Hall and their successors ‘ ‘whatever right, title, interest and estate” the State had in the lands at the date of the
In the briefs of counsel upon this appeal, many matters have been brought to our attention. Much argument upon points of inconsequence as well as of consequence has been presented. Counsel for each party have evidently spared no pains in presenting the case. But in every case there are prominent facts and principles which completely control — -features standing forth so convincingly as to outweigh matters of minor importance, which in themselves may seem to the contrary, and thus controlling judgment to a right conclusion upon the whole. It is so here. Therefore, we have noticed in this opinion only that which convincingly controls the case and has weight and substance when considered with our law and its reason and purpose. The conclusion to which we come in this opinion we believe to be founded upon a proper application of the law to such case as is here presented. Of course, if our forfeiture system is invalid and the statutes in furtherance of it are-inoperative, we are wrong in our judgment herein pronounced. But this system has received the sanction of the courts for years. We cannot believe the charge of invalidity by which it is characterized in the briefs of appellant. It must remain for another tribunal to overthrow it, if that ingenious argument is to prevail. It is too sacred, too-
Affirmed.