94 W. Va. 7 | W. Va. | 1923
This suit involves the right of F. t G-. Morrison, as owner of a lot of land in the city of St. Albans, to redeem it from forfeiture as against the right of John H. Linn, purchaser thereof under a decree of sale, and deed therefor made' by the court in a suit brought by the Commissioner of School Lands for Kanawha County. The court permitted Morrison to redeem and Linn appeals.
On July 2, 1921, M. M. Robertson, Commissioner of School Lands, instituted a suit in chancery in the circuit court against C. P. Young and 177 other defendants to sell, under the provisions of chapter 105, Code, for the benefit of the school fund, some sixty or more parcels of land, claiming that they were forfeited for the non-payment of taxes. Among these defendants were L. B. Richmond, Thomas E. Good and F. G. Morrison. Process was issued to the sheriff of Kanawha County, July 2, 1921, returnable to August
“State of West Virginia,
Kanawha County, to-wit:
P. H. Murphy, being by me first duly sworn, says that process to answer the plaintiff’s bill in the chancery cause of State of West Virginia v. C. P. Young et ah, has been twice • delivered to the sheriff of Kanawha County ten days before the return day thereof and has been returned by said sheriff without having been executed on the following named persons: and also that diligence has been used on behalf of the plaintiff in said cause to ascertain in what county the following named persons are, without effect”: (Here, follows a list of some fifty-odd parties, including Richmond, Good and Morrison; then the names of some parties alleged to be nonresidents and others as parties unknown; the affidavit concludes with affiant’s signature and the jurat).
September 7th was Wednesday. The order of publication was published and posted, and a proper return thereof made; the first publication was on September -8th, the last publication was completed September 29th. . The September term of court began September 12th and continued beyond November 17th. On November 7th an order was entered allowing various claimants to redeem certain parcels. On November
The January, 1922, term of court adjourned March 18th; at a special term, on April 3, 1922, P. G. Morrison filed his petition in the’ cause, setting up substantially the matters herein mentioned, and in addition thereto stated that L. B. Richmond, the former owner of the lot, for whose default in payment of taxes the title was declared forfeited, had conveyed it to Thomas B. Good by deed dated August 24, 1917, and that Good conveyed it to Morrison January 10. 1918; that Good became bound to pay all the back taxes, and would have paid them, but he was called into the military service of the United States and there remained from April, 1918, to April, 1919, during which period the delinquency occurred; that petitioner has a valid and superior title to the lot, subject only to the forfeiture by the state for its taxes; on the petitioner’s prayer, process was issued by order of court against the Commissioner of School Lands, John H. Linn, and one J. P. Bedell, the latter being either Linn’s agent or claiming the benefit of Linn’s purchase. This process was returnable to the next regular term of court. Petitioner avers that the decree of sale of his land is void for a number of reasons, but' principally because of want of notice’to him, and directs attention to the affidavit on which the order of publication was based. The purchaser contends that the affidavit is sufficient, and that the court had jurisdiction; that therefore, the decree of sale is not void, and he is protected in his title as a bona fide purchaser for value. This involves a construction of section 11, chapter 124, Code.
The statute says: “On affidavit that a defendant is not a resident of this state; or that diligence has been used by or on behalf of the plaintiff to ascertain in what county he is, without effect; or that process, directed to the officer of the county in which he resides or is, has been twice delivered to such officer more than ten days before the return day, and been returned without being executed; or that defendant is a corporation, and that no person can be found in' the county
In case defendant is a natural person, and that is the ease here, the statute provides that the affidavit shall state either one of three facts: (1) that the defendant is a non-resident of this state; or (2) that diligence has been used by or on behalf of the plaintiff to ascertain in what county the defendant is, without effect; or (3) that process, directed to-the officer of the county -in which the defendant resides or is, has been twice delivered to such officer more than ten days before the return day, and has been returned without being executed. An examination of the affidavit already quoted. discloses, not one but two statements of fact: (1) that process to answer the plaintiff’s bill has been twice delivered to the sheriff of Kanawha County ten days before the return day thereof and has been returned by the sheriff without having been executed', on the following' named persons; and (2) also that diligence has been used on behalf of the plaintiff in said cause to ascertain in what county the following named persons are without effect. The first ground or statement of fact is clearly insufficient. The language of the statute is “or that process, directed to the officer of the county in which he (the defendant for whom the order of publication is. sought) resides or is, has been twice delivered to such officer more than ten days before the return day, and been returned without being executed. ’ ’ To procure the order of- publication for this cause by stating that the process has been twice delivered to the sheriff of Kanawha County the affidavit must state that the defendant resides in or is in that county; this it fails to do. It must also show that the process has been twice delivered to the officer not merely ten days, but “more than ten days before the return day.” _ It omits the words “more than.” This statement is not even a substantial compliance with the statute and authority to award the order of publication can not rest upon the ground. The second statement of fact is “that also diligence has been used on behalf of the plaintiff in said cause to ascertain in what county the following named persons are, without effect.” Now the original and alias summonses were issued to the sheriff of Kanawha County. In stating his first ground, he
But it occurs to us that a more important question is presented. The second statement says "that diligence has been used on behalf of the plaintiff in said cause to ascertain in what county the following- named persons are, without effect.” The query arises whether the affidavit for the issuance of an order of publication on this ground should not go further and state facts from which the court can say whether diligence has been used to ascertain in what county the persons are; or whether the mere general statement in the language of the statute is sufficient. We do not find that this question has been determined in either of the Virginias, but it has been in a great number of other jurisdictions. Under some statutes it is specifically required that tire affidavit set out the 'acts constituting diligence on plaintiff's part so that the court can determine whether diligence has been exercised. This is true in California, Minnesota, and a number of other states. In these states, if the affidavit fails to state the facts tending to show diligence on plaintiff's part to ascertain where defendant resides or is or why service of the writ can not be had upon him, the order of publication will be held invalid. See 32 Cyc. page 478, cases cited; also, Grigsby v. Wopschall, 25 S. D. 564, 127 N. W. 605, 37 L. R. A. (N. S.) 206, and notes. Under other statutes, substantially like ours, which- do not in terms have any such requirement-the courts hold nevertheless that it is insufficient merely to aver that after due diligence the defendant can not be found within the state, or that diligence has been used by the plaintiff or on his behalf to ascertain in what county he is, without effect; but that the acts done by or on behalf of plaintiff must be stated. For example,
“Under §§3950, 3951 and 3955 of the statutes of Oklahoma where a judgment of foreclosure and sale of land in Oklahoma Territory is based upon service of the summons by publication, the facts tending to show the exercise of due diligence in attempting to serve the defendant within the Territory must be disclosed in the affidavit on which the order for service by publication is based.” Romig v. Gillett, 187 U. S. 111, 23 Sup. Ct. Rep. 40.
The law is thus stated in 17 A. & E. Ency. Pl. & Pr. page 63: “ It is generally held that a mere allegation that personal service can not be made after due diligence is only the statement of a legal conclusion and not sufficient to authorize publication. The affidavit should state facts showing what diligence has been used to obtain personal service. And so, if the facts stated by the affidavit are not inconsistent with the presence or residence of the defendant in the state at the date of the affidavit, it'is insufficient.”
Now from the record in this case it appears to us that the absence of diligence is disclosed on its face. The original summons was returned by the sheriff unexecuted for lack of time as to more than one hundred and fifty of the defendants, including in that number the three who were entitled to redeem the lot in controversy. The second or alias summons was not returned at all; at least the record does not disclose that it was returned. The decree of sale was obtained by default; there was no appearance by the three persons
Now the facts in this case show that there was a dwelling on the lot, which was occupied by Morrison’s tenant. Morrison knew nothing of the proceedings until his property had been sold and the purchaser had recorded his deed. The purchaser sent a man to Morrison’s tenant to collect rent. It was through the tenant that Morrison obtained his first information of Linn’s claim to the lot. He then got busy. It clearly appears, however, that Morrison had lived in Kanawha County for more than fifteen years; owned property, paid his taxes on other property, but was told there were none assessed in his name on this property but that it would later be back-taxed. It is shown that the property is worth $3000, and sold for $200.00. The court decreed that Morrison might.redeem it; that the purchaser should be restored his $200.00. This is equity. The decree is affirmed.
Affirmed.