64 W. Va. 673 | W. Va. | 1908
The State of West Virginia appealed from an order made and entered by the circuit court of Braxton county, on the 8th day of December, 1904, dissolving an injunction. The suit, in which the order was made, is one instituted by the state for the purpose of subjecting to sale a tract of 5,000 acres of land, situated in said county, as forfeited for non-entry on the land books of said county, for taxation, from the year 1870 to the year 1903, inclusive. At the time of the institution of said suit, the West Branch Lumber Com
The land was granted by the Commonwealth of Virginia to Samuel Young', by a patent bearing date April 13, 1786. Sometime prior to the year 1842, it had become forfeited for non-payment of taxes, and, upon proceedings instituted by the commissioner of delinquent and forfeited lands was sold, under a decree of the circuit superior court of said county, to Gideon D. Camden, to whom a deed was made by said commissioner, dated April 13, 1842. Camden, by deed dated April 15, 1842, conveyed it to Francis Albright. Thereafter it was taxed in the names of Francis Albright and George Giger for a time, and, then as the land of Francis Albright’s heirs and George Giger, until the year 1868, for which year, as well as for the year 1867, it was returned delinquent and afterwards sold by .the sheriff of said county for the non-payment of taxes thereon for said years. For the delinquency of the year 1868, it was purchased by W. L. J. Corley and M. H. Morrison, who, having assigned the benefit of their purchase to Henry Brockerhoff and others, together with the recorder of said county, by deed dated September 9, 1870, conveyed it to said Brockerhoff and others. After said sale, the land appeared on the land Joooks in the names of Henry Brockerhoff and Co., and for delinquency, in their names, for the years 1875-76, it was again sold on the 6th day of November, 1877, by the sheriff, to A. N. Ervin who obtained a deed therefor, from the clerk of the county court of said county, dated January 3, 1879. He conveyed it to Margaret C. Brockerhoff, by deed dated September 6, 1879. From her, it passed, by mesne conveyances, to the West Branch Lumber Company. By the sales made and taxes paid in the names of Brockerhoff and others, claiming under the tax deeds, the state had received payment of all taxes on the land from the time of the purchase thereof by Morrison and Corley. All these facts are set up in the answer of the West Branch Lumber Company. For the delinquency of the year 1867, the land was sold a
From a certificate made by the clerk of the county court of Braxton county, the land appears to have been carried on the land books and charged with taxes for the years 1871 to 1904, successively, in the names of Henry Brocker-hoff, Mary C. Brockerhoff, Mary Brockerhoff and West Branch Lumber Company, as a tract varying in quantity from 4,655 acres to 4,715 acres. It is said to have been surveyed at times, within the period named, and the entries upon the land books made to conform to the results of the surveys. Under these assessments, the sum of $5,926.23 has been paid-in taxes. It does not seem to be disputed, either that this is the land in controversy, or that the taxes have been paid under these assessments.
The state proceeds upon the theory of a forfeiture for non-entry, not in the names of Corley and Morrison, or other tax deed grantees, or any one to whom the claim under the tax deed passed, but upon the theory of a forfeiture for non-entry in the name of the Albright heirs and' Giger, the tax deed being considered void, in consequence whereof payment of the taxes by one claiming under it does not, under
The legal proposition upon which the bill is predicated has been regarded for some years, by this Court and the profession in general, as sound and as having the wide operation and effect claimed for it; but a long and patient investigation, both before and after elaborate argument by able counsel, has impressed upon me a grave and serious doubt, to say the least, as to its consonance with the spirit of our constitutional and statutory system of law applicable to the subject. Having reduced to writing the considerations and argument, which, in my opinion, weigh heavily against it,, and, at the same time, reflect light upon the true exposition of this branch of the organic and statutory law, as applied to other subjects and questions frequently drawn into this Court for disposition, I have incorporated them into this opinion as suggestions which may prove to be useful in the. interpretation of said system, and also as having some bearing upon the correctness of the construction of section 29 of chapter 31 of the Code, here adopted, and denying to the state the right to maintain a suit to sell land, as forfeited,, under the conditions, disclosed by the record in this cause-A decided aversion, on the part of my associates, to the overruling of numerous decisions in which the doctrine of Simpson v. Edmiston has been adhered to and applied, and some doubt on my part as to the wisdom of so doing, leaves, it, as originally stated, unimpaired; but our interpretation of the statutory provision, to which reference has been made* eliminates the oppressive consequences and effect, accorded to it in some later decisions in which this view of the statute was not presented or adverted to.
That payment of taxes by a Iona fide claimant of a given title, who predicates his claim upon anything other than a tax deed, protects it from forfeiture not only for his own benefit, but for the benefit of any other claimant of it, has been several times decided by this Court. This doctrine was not denied by Judge SNYDER, the author of the opinion in Simpson v. Edmiston. On the contrary, he asserted and enforced it in Lynch v. Andrews, 25 W. Va. 751, and Sturm v. Fleming, 26 W. Va. 54, both of which cases arose since.
The reasoning upon which the court reached this conclusion in Sturm v. Fleming, was in part as follows: “Both the pleadings and the proofs show that the appellant held and claimed said lands under and by virtue of the sale made by Commissioners Despard and Maxwell, and that said commissioners professed to sell only the title of the appellee, Sturm, in pursuance of a decree entered to sell the land of said appellees. It is plain, therefore, that the appellant never held or claimed said land under any title or color of title adverse or in hostility to the title of the ap-pellee, but that he claimed under the title of the appellee
In speaking of the claimants in Lynch v. Andrews, the Court said: “In the case at bar, there is no pretense that the appellees and their vendor, James Lynch, or either of them ever asserted any claim or title to the land in controversy in hostility to that of the appellant. They claimed and held it under and not independent of the appellant’s title. They claimed they had his title and not a new and distinct title or color of title. They were claiming as vendees in subordination to and under the same title. When, therefore, the same power, the court, which had unadvisedly and without legal authority attempted to effect a transfer of the title, in the same suit corrected its error and declared the pretended transfer inoperative and void, the foundation .of the appellee’s claim, and the claim itself were wholly destroyed and annihilated.”
Passing, for the time being, the alleged distinction between the status of a claimant of a title by a tax-deed and other claimants, the import of the two decisions just referred to is that payment of taxes on land, in order to prevent a forfeiture of the title, under section 6 of Article XIII of the Constitution, need not be made by the veritable owner of that title; and that it suffices to save it from forfeiture, that somebody Iona fide claiming the title has paid the taxes on the land as such claimant, although it may turn out ultimately that he was not the real owner. These decisions seem to indicate strongly that the term “owner” used in section 6 of Article XIII includes such a claimant, and that the title, if forfeited and vested in the State, is wholly forfeited, and not merely forfeited as to one man or any number of men, provided the number does not include all of the Iona fide
That the Court will not, in determining whether there has been a forfeiture, or a valid assessment so as to pass title by tax sale, extend its inquiry far enough to say that the man who pays the taxes, or in whose name the sale was made, is the true owner, is apparent from what was said by Judge JOHNSON, speaking for this Court in Bradley v. Ewart, 17 W. Va. 598: “We do not decide in this case, that the title of the defendants to the land in controversy is good, but that as appears from the records, so far as the state is concerned, they seemed to be the owners for the purpose of taxation, and that the State under the sale to Bradley could make no title to him, because it appears, that the taxes assessed upon this same title had been properl/y paid by the defendants for the years 1865 and 1866, on account of the alleged non-payment of which the land was sold and purchased by Bradley. The sale and deed to Bradley were therefore illegal and void. The deed being void on this ground it was wholly unnecessary to enquire whether it is void for any other reason.” In Sturm v. Fleming that case was cited and in both Sturm v. Fleming and Lynch v. Andrews, payment by mere claimants who, by reason of the voidness of the decrees under which they had purchased, had no title and no valid claim to the title, saved the land from for feiture for the benefit of other claimants of the same title,who had not paid a cent of taxes and in whose name the land had not been entered for fifteen years, in one case, and more than ten years, in the other.
In Lohrs v. Miller, 12 Grat. 452, cited in Bradley v. Ewart, Sturm v. Fleming and Simpson v. Edmiston, this view is further illustrated. The facts are concisely, but accurately, stated in the syllabus, which reads as follows: “H is the owner of a tract of land in 1797. Two papers purporting to be deeds bearing date in that year, one from H to G and the other from G to M, 'conveying this land, are by order of the proper court directed to be admitted to record, and are recorded; though they are not duly authen
“ It is said that if the defendants below had proved title In Meshach Hyatt, derived from Ignatius Hayden, that then the entry on the land books in his name had been valid and the forfeiture prevented. It is further said Meshach Hyatt was not such owner or proprietor within the meaning of the law as might make such entry. That the chain of title stops with Hayden, and that he alone could make a valid entry; and that having omitted to do so a forfeiture is incurred. These positions of the plaintiff’s lessors, when properly analyzed, are found to be, that the commonwealth has a concern in lands above and beyond the taxes charged thereon; that although she may and does receive ‘her just demands’.against any specific parcel of land, yet she may by forfeiture acquire the land itself in addition to her taxes, and this although the taxpayer regarding himself as owner, in good faith, has complied with the letter of the law; that she may set up a title in a party who long since attempted to divest himself of all title, who has never since set up any claim; and this for the purpose of forfeiting such title to the prejudice of subsequent claimants who have fully discharged all just demands against the subject; that in every case of devise, descent, lineal or collateral, or of conveyance, if a party not in law entitled to succeed to real property, shall yet in good faith claim title, cause it to be entered and charged with taxes which he duly pays, yet the title of the true owners is forfeited for omission to enter it on the commissioner’s books.”
“In fine, it is insisted, in effect, that the commonwealth Is a grand beneficiary to take advantages of all mistakes, mis-constructions, or imperfections, touching titles or
“I am clearly of opinion that a forfeiture in this case cannot be adjudged to have occurred,, without a departure from the letter and spirit of the laws: such judgment could only be sustained by making the statute rigorous and unjust in the last degree. Thus, I am of opinion to reverse the judgment of the Circuit Court, and to render judgment for the plaintiffs in error.”
Hitchcox v. Rawson, 14 Grat. 526, in which Judge Lee wrote the opinon of the court, contains a strong intimation to the same effect. A claim of forfeiture for non-payment of taxes, not non-entry for taxation, was resisted because the assessment on which the forfeiture was predicated was in the name of the patentee who had sold and conveyed away the land before the assessment was made. It was insisted that» as the assessment was illegal, no forfeiture could stand on it. But Judge Lee said, without deciding the question: “It may not follow as a necessary consequence that an assessment of taxes upon a tract of land would in every case be illegal and void because the land had been previously conveyed to another by the party in whose name it was so assessed.” The reason for this suggestion will be apparent to any one who makes a careful study of the laws of the State of Virginia, out of which our system of forfeiture was evolved.
No rule of construction is better settled or safer to follow than that the evil intended to be suppressed by the statute in any given case shall be constantly kept in view. As shown by the opinion of Judge SNYDER in McClure v. Maitland, 24 W. Va. 561, one of the objects of the forfeiture and transfer provisions of the Virginia statutes was the settlement of land titles. There were, in those days, as there are now» numerous instances in which some of the land had been granted by the State of Virginia to two or more persons, by patents issued at different dates; and conflicting titles, or
Prior to the year 1831, many acts of the legislature had been passed declaring forfeiture for non-payment of taxes. Some of these forfeitures had been released by other acts. In 1831, large amounts of taxes which had been assessed on the lands of the state remained unpaid. For a great many years these taxes had been charged and accumulated, and constituted liens upon the lands. By that act, passed-on the first day of April, 1831, the great scheme of forfeiture and transfer for the purpose of enforcing the payment of these taxes, and, incidentally, destroying the conflict between titles, was passed. Then in 1835, February 27th, the plan of forfeiting lands that never had appeared on the land books in anybody’s name was adopted by an act passed on that date. These two acts laid the foundation for the whole system. The principles and the policy em
Section 6 makes it the duty of every owner to cause his land to be entered upon the land books for taxation and to pay the taxes thereon, and denounces against him, as a penalty for failure in this respect for the period of five successive years, the forfeiture of his land and vesting of the title thereof in the state; but it does not define the term “owner.” As has been already shown by the decisions of this Court, persons other than the true owner may prevent a forfeiture by causing the land to be entered in his name and paying the taxes. As, in order to accomplish that result, the taxation need not be in the name of the true owner; who is an owner within the meaning of that section? By whose entry for taxation will the forfeiture be prevented? What is the extent of the latitude allowed? That there is some is evidenced by several decisions of this Court. That is incontrovertible, and the only question is its extent. As the Constitution does not indicate that, where ought we look for it? Where is it likely to be found except in the principles and policy of the statutes out of which the Constitution grew? Who was an owner for the pur
As has been stated, the first great forfeiture act was not for non-entry, but for non-payment of taxes that had been assessed. These assessments had been made from time to time, we may say, from the date of the independence of Virginia as a commonwealth, a period of fifty years. Certainly, they had been assessed and charged for more than thirty years. They were charged to somebody in every instance and, upon that charge, was based the declaration of forfeiture. The person to whom they were charged must necessarily have been deemed the owner for the purposes of taxation and for the purposes of enforcing the forfeiture for non-payment. The assessments in those days were made, no doubt, in much the same manner in which assessments are now made. Nowhere, in any state in the Union, is the verity of ownership determined in charging a . tax upon real estate. The charge is always made against the man who appears to be the owner and claims to be. In some instances, the bases of the claim to the title are wills, in others deeds, in others contracts, and in others consanguinity, blood relationship. Titles to all the land so charged had come into private ownership by grant, either from the English Crown or from Virginia as a colony or a state. The forfeiture act of 1831 only applied to lands west of the Allegheny Mountains. Many of the titles to these lands had been granted before the year 1780. They began immediately after the commencement of the Revolutionary War. Some, no doubt, had been granted before that time. Some of these lands had been charged with taxes from the time of the issuance of the grant down to the year 1831. The titles created by these grants had then, for almost half a century, changed hands by descent, by device, by deed, by judicial sales and in all the other usual modes of alienation. There were then, as there are now, hundreds of controversies respecting the ownership of particular titles, two or more persons claiming against one another the same title. The
Having thus seen who was deemed the owner in declaring forfeitures for non-payment of taxes, let us see who was considered owner in declaring forfeiture for non-entry for the purposes of taxation. The first act declaring forfeitures for non-entry was passed on the 27th day of February, 1835. In the preamble of that act, it was recited that there were many large grants of land lying west of the Allegheny Mountains, which either never had been entered on the books of the commissioners of the revenue, or had not been so entered for many years past. They had not been entered in the name of any person claiming title under those grants. The act then imposed upon ever owner or proprietor of such land the duty of causing it to be entered on the commissioner’s books and paying the taxes. The penalty for omission in this respect was forfeiture of the title to the land claimed under the grant. The act required such lands to be so entered by the persons by whom they were then owned or claimed through title derived mediately or immediately under grants from the commonwealth. Under it, there could be no forfeiture if the entry was made as directed by it. It might be made by one who merely claimed the land in the manner indicated. Therefore, a claimant could defeat the forfeiture by having the land entered. Such a claimant, therefore, as is described in that act, must have been deemed an owner or proprietor. This conclusion is in strict accord with the views expressed by Judge Samuels, in Lohrs v. Miller, by Judge Johnson in Bradley v. Ewart, and by Judge Ssnyder in Lynch v. Andrews and Sturm v. Fleming.
Further support of tlie view, herein presented, is found in the exception from the operation of the transfer provisions of the act of 1831. The state was willing to bestow the forfeited title upon the holder of another title by grant who had settled upon the land and paid taxes on it under hi's title. He was not required to be anything more than a bona .fide claimant under that title. It was not necessary that he be the owner de jure. But the state would not confer it upon him, though he were the real owner, if, by doing so, she would prejudice any other person claiming a third title created by her by a third grant for the same land, who had paid taxes on the land under his title. It was not necessary that the third claimant be the true owner of that title. It sufficed that he was a bona fide claimant under that grant and had paid the taxes. That proviso reads as follows: “That in case of any controversy arising between any person or persons, to and in whom the right, title, and interest of the president and directors of the literary fund shall be transferred and vested, in pursuance of the provisions of this act, and any other person or persons bona fide claiming the same lands, mediately or immediately, under grants from the commonwealth, and having had the same duly entered on the books of the commissioners of the revenue, and having paid and discharged all taxes thereupon charged, and justly chargeable against him, before the right, title and interest of the said president and directors shall have been so transferred to, and vested in, the adverse party, the person or persons, who shall have obtained the transfer to him, in pursuance of the provisions of this act, of the
All these provisions were carried into the Codes of 1849 and 1860 in concise and comprehensive terms. Much of the verbiage of the old acts was eliminated. Section 1 of chapter 114 in both Codes provides for transfer of all forfeited titles in the hands of the state to any person, other than those for whose default the same had been forfeited and their heirs or devisees, for so much as such persons, had just title or claim to, from or under grants of the commonwealth, before or after the date of the passage of the act, and who, from the time of such title or claim, should have paid all the taxes duly assessed against such land and all taxes that, ought to have been assessed thereon. The policy of giving away the forfeited titles instead of selling them was continued whenever it could be done without prejudice to a third party claiming bona fide the same land under a third or other grant. Section 2 of that chapter provided for this and reads as follows: “The preceding section shall not impair the right or title, legal or equitable, of any other person who shall by title, legal, or equitable, derived from or under the commonwealth, bona fide claim any such land on which the taxes have been fully paid according to law; but in all such cases of conflicting claim, the parties shall be left to the strength of their respective titles.” Payment of taxes by a man who merely' claimed in good faith a title other than the one forfeited, however bad that title might be, and however unfounded his claim to it, made that man, in the estimation of the state, worthy of a gift by her of a good title which another man had held, but which had been forfeited for his non-payment of taxes on the land to which it related, or his failure to have it entered for taxation. But the state would not make that gift, in such manner or to such an extent, as would
In formulating and putting into effect this policy, the state was exercising its sovereign powers for the promotion of the welfare of the body politic. She was not acting as a mere proprietor of land or dealer in land titles. Aside from obtaining the revenue which she was entitled to have, her only purpose was to promote and encourage the settlement and development of the state, by eradicating the great evil of conflicting titles, created by herself through her improvidence and want of foresight. Regarding her as exercising sovereign powers in ordaining these laws, we must assume that she intended to deal justly and fairly with every citizen. We are not at liberty to impute to her an intent to make any arbitrary discrimination between persons standing in substantially the same situation. A man who paid taxes under a good title ought to have stood in equal favor at least with a man who paid taxes under a bad title. A Iona fide claimant under- a bad title, by paying taxes to the state, obtained the transfer to himself without money and without price, of a good title, if the state had acquired it by forfeiture. Why then, should the state forfeit a good title under which a Iona fide claimant had paid all the taxes that ever had been assessed and should have been assessed on the land to which it relates? The forfeiture of his .title, in order that it might be bestowed upon another man who had no title, simply because he had paid taxes, would have been an act of most arbitrary injustice and discrimination between two people who were at least equally meritorious respecting the very matter upon which forfeitures and transfers were predicated. An act on the part of one which merited and justified a donation on the part of the state, if performed by another man, should at least have been cause for keeping in its sheathe the sword which had been provided for the destruction of titles.
The disposition made of forfeited titles by section 3 of Article XIII of the Constitution shows that the purpose of the forfeiture, by force of section 6 of that article, is not to make profit to the state by means of the imposition of a tax on land for every title under which it is claimed. As. fast as forfeited titles are gotten into the hands of the state in that way, they are handed over, as upon a silver platter, as a free gift, to anybody who is in a position to take them. And when nobody is in a position to take a forfeited title, the state still abstains from making profit out of the forfeiture. Her sense of justice impels her to reject such a proposition with scorn. In that case, she is content to sell the land, and, after deducting the taxes due her and the costs of the proceeding, to hand over the surplus to the former owner, notwithstanding his unworthiness, in having failed and refused to perform his duty to the state by payment of the taxes on the land. Although he has refused to render unto Caesar the things which are Caesar’s, Caesar, as a proud and just sovereign, scorns to punish him by taking money from him beyond the just demands of -the state. In view of this policy, it would be strange and inconsistent to impute to the state an intention to become a mere dealer and trafficker for profit, and self-aggrandizement, in the lands of the state, held in private ownership. If we say that she intended to tax every claim to every title, as well as every title, we make her such a trafficker and a most greedy and avaricious, one. She becomes an insatiable cormorant, laying her hands, upon everything she can find a pretext, however base, for consuming.
The provisions of section 3 of Article XIII of the Constitution show also a most careful and undeviating abstention from disturbing, by the bestowal of forfeited titles,, the pretentions of any person who has paid taxes on lands under a tona fide claim to the same land under a title other than the one forfeited. As in the Virginia statute, the sense, of justice and right, characteristic of every enlightened sovereignty, restrains the state from an arbitrary discrimination between her citizens, standing in the same, or simi
Who isa bona fide claimant, in'the sense that he may prevent a forfeiture by paying taxes, is answered by Sturm v. Fleming, Lynch v. Andrews, Hall v. Hall and other cases hereinbefore referred to. The defects in the claims to titles in those cases were apparent. They were matters of record. The claim need not be under a deed, will, decree or other paper apparently free from defects and imperfections. In this instance, as in the law of adverse possession, honest belief of the claimant, as to what the law is, as applied to the instrument under which he claims, entitles him to the status of a bona fide claimant, however mistaken his judgment may be. He may also have notice of the existence of an adverse claim to the same title. The claimants did have such notice in Lynch v. Andrews and Sturm v. Fleming. This Court has said that a bona fide claimant in the law of adverse possession need not believe his claim to be a good or valid one. He may know that some other pei'son has a better right, and it is not necessary that he should think his claim good in its inception, for it generally begins in, and presupposes, wrong. The only qualification is that it must not be fraudulent nor involve any breach of trust, and as to this latter, there are some few exceptions. Swan v. Young, 36 W. Va. 57. The Supreme Court of the United States, in Searl v. School District, 133 U. S. 553, approved the following definition of good faith, in the law relating to re-imbursement for improvements put upon land, not belonging to the person in possession:
- In the early Virginia legislation, from which the propositions embodied in Article XIII of our Constitution were taken, with some modifications, forfeited titles were bestowed upon bona fide claimants under grants from the state and such claimants were protected from the effect of transfers wherever they might conflict with such a claimant. Our Constitution lias omitted the words “bona fide claimant,” and substituted therefor the terms “ claimant under color of title,” which is the status of one who relies upon the doctrine of adverse possession, and is held to be a. claimant in good faith, however defective his color of title may be, so long as his claim is not predicated upon a fraud or breach of trust, which is in equity the same thing. It is beyond question, therefor, that the bona fide claimant, within the meaning of the Virginia statutes, and therefore of the Constitution, need have nothing more than an honest belief in the verity of his claim, founded upon reasonable grounds therefor.
Why may not one who claims under a defective tax deed be such a claimant? The first intimation in the decisions of this Court that he could not be such a claimant was expressed in Simpson v. Edmiston, 23 W. Va. 675. No suggestion of such a thing had ever been made by any decision of the Virginia court. This, Judge SnydeR, admitted. He denied to such a claimant that status on the technical
While there are many decisions, holding that a tax deed starts a new title, as is shown in section 420 of Black on .Tax Titles, it is to be observed that the author of that work says the statement is only admissible as a figure of speech; in other words, that the ideáis a mere fiction, raised by the courts for the purpose of working out certain proper results. This is often done. There are numerous instances of it to be found in the law. But a court will never set up a fiction for the purpose of working an injury to anybody; nor will it allow a fiction which has been set up by them to be used for that purpose. Bouv. Law Dice. title, fiction. Gibson v. Chouteau, 13 Wall. 92; Hussman v. Durham, 165 U. S. 144. The one under discussion here has been created for the purposes of getting rid of liens and encumbrances on the land Sold, as well as extinguishing the covenants relating to the title of the former owner. No reason has ever been assigned by any court why it should be extended so far as to deny privity of titl^ between a tax purchaser and the former owner. To cut off the covenants collateral to the title, which constitute no part of it, but have been annexed to it as a mere means of indemnity for the loss of it, it suffices to say that there is no privity of contract between the former owner and the tax purchaser. For the purpose of extinguishing the liens against the land in the hands of the former owner, it is enough to say that the state has, for her taxes, priority of lien, and that a sale of the land, in the mode and manner provided for the enforcement of her
The injustice, hardship and oppression, thus shown to re-
An affirmative response to the first inquiry, full, clear and emphatic, is found in certain provisions of the Constitution. Section 39 of Article VI of that instrument provides as follows: “ The legislature shall not pass local or special laws in any of the following enumerated cases; that is to say, for * * * * * Releasing title to forfeited lands. The legislature shall provide, by general laws, for the foregoing and all other cases for which provision can be so made.” Section 4 of ArticleXIII impliedly gives, or assumes, the existence of very broad legislative power to deal with forfeited land titles. It says: “All lands in this State, waste and unappropriated, or heretofore or hereafter for any cause forfeited, or treated as forfeited, or escheated to the State of Virginia, or this State, or purchased by either and become irredeemable,’ not redeemed, released, transferred or otherwise disposed of, the title whereto shall remain in this State till such sale as is hereinafter mentioned be made, shall by proceedings in the circuit court of the county in which the lands, or a part thereof, are situated, be sold to the highest bidder.” These clauses have been held broad enough to authorize the transfer, by legislative action, of all the right, title and interest the state has in and to a tract of forfeited land, to a former owner thereof, on his redemption or purchase thereof in a proceeding instituted, under chapter 105, of the Code for the sale thereof, regardless of any irregularitj' in the proceedings or want of jurisdiction in the court to render such decree. Acts 1891, chapter 94. The validity and binding force of this statute, and, therefore, its constitutionality, were declared in State v. Jackson, 56 W. Va. 558, 570. It operated a transfer of title to the land,'vested and remaining in the state at the date of the redemption, no matter how, nor from whom, acquired. Id. 571. For some reason, this provision was not. incorporated in section 17 of chapter 105 of the Code, as amended and re-enacted in chapter 24, Acts 1893, allowing
The answer to the second is found in said section 29 of ehapter 31 of the Code, providing as follows. “In all cases in which a question shall arise as to any such sale or deed, •or the effect thereof, such deed shall be prima facie evidence against the owner or owners, legal or equitable, of the real estate, at the time it was sold, his or their heirs and assigns, and all other persons who might have redeemed the same within said one year, as hereinbefore provided, and also prima facie evidence against the State, counties, districts, school districts and municipal corporations, for or by which the taxes, or any part thereof, for which the land was sold, were levied and assessed, or which may claim the •benefit of a lien for any unpaid taxes assessed against the land sold, and conclusive evidence against all other persons, that the person named in the deed as clerk of the county court was such, that the sheriff or other officer who made the sale was such sheriff or officer as stated in such deed, that the material facts therein recited are true, and that such estate as is mentioned in the twenty-fifth section of this chapter, vested in the grantee in the deed. Nothing in this chapter or any other law contained, shall be construed as precluding
The clause, “and also prima facie evidence against the-State, counties, districts, school districts and municipal corporations, for or by which the taxes, or any part thereof, for which the land was sold, were levied and assessed, or which may claim the benefit of a lien for any unpaid taxes-assessed against the land sold;” and the proviso commencing with the words, “Nothing in this chapter,” were inserted by an act passed in 1887. Prior to that time, the-section read as it was, after having been amended and reenacted by section 29 of chapter 117 of the acts of 1872, and not different, in substance or effect, from what it was-as originally put into operation by the legislation of 1863-66-69. Stripped of the amendments made in 1887, there is. no saving in this section in -favor of anybody but the. former owner or owners, legal or equitable, his or their heirs and assigns and persons who might have redeemed the same within one year after the sale. The state is clearly not one of these. As to all other persons the deed is made-conclusive evidence that “such right, title and interest. * * as was vested in the person or persons charged with the taxes * * * for which” the land “was. sold * * * and all. such right, title and interest, therein of any other person or persons having title thereto, who have not in his or their own name been charged ^ * * with the taxes * * * for the year or years for the taxes of which the same was sold, and have actually paid the same,” has been transferred to and vested, in the grantee in such deed. To this last class, the state belongs. As to her and all strangers to the title, or persons having no interest in the land, the statute makes the. deed conclusive, however irregular and defective it may be. To her it says: “ The purchaser has the title his deed.
The only plausible argument against this conclusion is that the state is not mentioned by name as one of the concluded persons. Statutes of limitation do not apply to the state, unless it is expressly so stated in them, but we do not re-.garcl this statute as being analogous to one of limitation. It is a part of the great system of law, executing a well defined public policy, relating to taxation and land titles, to be interpreted in the light of the considerations upon which that pones’- is founded and the purposes it is designed to effect. Statutes of limitation pertain to private remedies rather than public purposes. Taxation is a sovereign function, purely public in its nature and
It was not the purpose of the legislature, in amending this section in 1887, to deprive it of the force and effect we here give it. These new provisions have no relation to this question. Their purpose is simply to prevent the deed from barring the state from enforcing any prior lien for taxes which she may have, or which may exist in favor of any county court, board of education or municipality, in any case in which a former owner or other lienor might cause it to be set aside. It was added simultaneously, by chapter 22, Acts 1887, with the amendment to section 1 of chapter 31 of the Code, conferring upon the state, counties, school districts and municipal corporations, the right to enforce liens for taxes by suit in equity. Said Act of 1887 affected these two sections of chapter 31 of the Code, in these two respects, and in no other way, and did not touch any other part of said chapter. This puts their object and purpose beyond question. They are mere companions and hand-maids of the amendment to section 1. Prior to 1887, there was no provision for the enforcement of liens for taxes by suits in equity. The amendment to section 1 of chapter 31 made in 1887, gave such remedy. Then it was deemed necessary to insert these provisions in section 29, to make them available in those cases in which sales for delinquency had been made. Without such an amendment to the latter section, the new remedy would not have been available in such cases. The changes made in section 29 argue that, but for such a saving clause, the section would make the deed, though defective, bar the state from suing in equity to enforce the lien for taxes. The amendment is really a legislative construction of this section in perfect accord and harmony with that which we here give it.
As has been stated, this view of the statute has not heretofore been presented to this Court. Two decisions have admitted the state as a plaintiff, under the conditions, shown by this record, State v. Sponagle, 45 W. Va. 415, and State v. Harman, 57 W. Va. 447, but, in the first, the tax deed was held good, and, in the second, it oper
Having thus reached the conclusion that the forfeited Al-bright and Giger title, the instant the forfeiture occurred, passed out of the state _ to the persons claiming under the tax deed, it is apparent that she had no right to maintain this suit, and that the court below properly dissolved the injunction. We, therefore, affirm the decree complained of.
A firmed.