76 W. Va. 469 | W. Va. | 1915
By this appeal Henry Young and the Louis F. Payne Oil Company seek reversal of two decrees made by the circuit court of Roane county on the 30th and 31st days of January, 1914, in a suit brought in the year 1898, by Michael Taylor and the heirs of Nancy Taylor, deceased, against J. E. Taylor and others. The ostensible purpose of the suit is to avoid, as a cloud on plaintiffs’ title to 52 acres of land, a tax deed made on the 8th of December, 1896, by G-. W. Hundley, clerk, and H. B. Hughes to J. E. Taylor, and also a deed for the same land made on the 21st of June, 1897, by said J. E. Taylor to appellant, Henry Young. In addition to the special prayer there is a prayer for general relief.
By the first of said decrees the court rejected the supplemental answer, tendered by Henry Young, and the petition tendered by the Louis F. Payne Oil Company; and, by the second, it decreed that said Young was the holder of the legal title, as trustee for the heirs of Nancy Taylor, deceased, and decreed that he convey the land to them, and that they pay to him $55.90, taxes and interest thereon paid by said Young on the land for the years 1895, 1896 and 1897. The decree rejecting the pleadings made them parts of the record.
The rejection of Henry Young’s Supplemental answer and affidavit tendered in support of it is assigned as error. Said answer avers facts which have arisen since the ■ issues were made on the original pleadings, and depositions were taken by
The last order in the case, prior to the decrees complained of, was made on December 3, 1903. That was an order submitting the case to the court for decision, in vacation, and was made upon agreement of the parties. Four similar orders had been previously made, submitting it to the predecessors in office of the judge to whom it was submitted in December, 1903, all of whom, apparently, either resigned or completed their terms of office without deciding it. The order, made in August, 1903, recites that the cause had been inadvertently ■omitted from the docket, and reinstated it. Sometime there■■after it was again omitted from the docket, and the court, by ■order made the 21st of -January, 1914, again reinstated it. 'That order recites that it had been inadvertently left off the ■docket by the clerk.
Does the long period of time from 1903 to 1914, within which no order of any kind, not even an order of continuance, -was made, and the omission of the case from the docket, work -a discontinuance, or show plaintiffs’ abandonment of their •suit? The effect of previous decisions of this court and the court of Virginia, is to say that it does not. It is not contended plaintiffs did not use reasonable diligence, after the issues were made, to take their proof and present their case to the court for decision. It had been presented for decision four times. What more could reasonably be required of a litigant? Assuming, but not deciding, that it was the clerk’s •duty to keep the case on the court docket, after it had been submitted to the court, and until finally disposed of, plaintiffs can not be held responsible for his omission of official duty. Both the orders reinstating the cause on the docket recite that it had been inadvertently left off by him. There is no intimation in the record that his neglect was caused by, or con
Nor does the lapse of time and failure to have any orders made showing proceedings taken, prove abandonment by plaintiffs. It would be otherwise at the common law. 1 Numerous terms of court having passed and the record showing no order made, or proceeding taken, would create a chasm in the proceedings and work a discontinuance, at the common law, and plaintiffs would have to begin anew. 3 Blk. Com. 296; 6 Enc. Pl. & Pr. 923; and Bouv. Law Dic., title “Discontinuance”. But Sec. 12, Ch. 114, Code 1913, modifies the common law, and operates to dispense with the entry of orders of continuance, in causes which are ready for hearing, but have not been determined before the end of the term. The statute continues a cause, which is ready for hearing, from one term until the next, without the entry of an order of continuance by the court, and, hence, prevents the occurrence of a chasm in the proceedings. This court has frequently held that the failure, even for many years, to take any proceedings in a cause does not show a discontinuance or abandonment of it by plaintiff, provided there has been no order made dismissing it, which the court may do by virtue of Sec. 8, Ch. 127, Code 1913, for want of prosecution for four successive years. Buster v. Holland, 27 W. Va. 510; Gillespie v. Bailey, 12 W. Va. 70; and Central District Printing &c. Co. v. Parkersburg &c. R. Co., 76 W. Va. 120, 85 S. E. 65. Hence the cause was a pending suit at the time the decrees complained of were made, notwithstanding a period of more than' ten years had elapsed since the date of the last order. Therefore, defendant’s supplemental answer, setting up matters which arose after the case had been submitted for decision, was properly rejected. His rights were determinable by the state of facts that existed when the suit was brought.
Nor was it error to reject the petition of the Louis F. Payne Oil Company. It acquired its lease mediately from defendant Henry Young, during the pendency of the suit and sometime after it had been submitted for decision. The
It may be, however, that plaintiffs are estopped to deny the validity of the lease. This question we can not, and do not, now decide. Therefore, in order to make it clear that the rejection of the petition was not intended as an adjudication upon the merits of the estoppel therein averred, the decree of dismissal should have so stated. The petition presented a case wholly foreign to the cause alleged in the bill, and for that reason it was properly dismissed.
According to the theory on which relief was granted there had been no forfeiture of plaintiffs’ title. The decree finds that defendant Henry Young purchased the land from J. E. Taylor with knowledge of the facts, or its equivalent, which constituted J. E. Taylor a trustee for plaintiffs. In such case the tax deed did not constitute an adverse title to theirs, and the payment of taxes on the land by the trustee enured to their benefit and prevented a forfeiture of their title. Lynch v. Andrews, 25 W. Va. 751. It is insisted by counsel for appellants, that by their allegations and prayer of their bill plaintiffs specifically asked for a cancellation of the deed as a cloud upon their title, and thereby establish a case of conflicting titles, showing the necessity for plaintiffs’ keeping the land on the land books in their own name, to prevent a forfeiture. Notwithstanding the bill does pray for such specific relief, it also prays for general relief, and the court could just as appropriately give one kind of relief as the other, provided the facts averred and proven warranted it. Castle Brook Carbon Black Co. v. Ferrell et al., decided at the present term; Hall v. Pierce, 4 W. Va. 107; Custer v. Hall, 71 W. Va. 119; Stewart v. Tennant, 52 W. Va. 559; and Waldron v. Harvey, 54 W. Va. 608.
Plaintiffs do not aver possession, but it appears from a petition in the record, signed by TIenry Young by his counsel, praying for an injunction restraining certain of plaintiffs from cutting and removing the timber from the land, that they were in actual possession at that time; the petition so alleges. There is no order filing that petition, or showing that it was acted on by the judge in vacation, and it may be a fugitive paper and no part of the record. But however that
The death of Michael Taylor did not abate the suit. He had only a life estate by the curtesy, and no revivor was necessary; no interest in the subject matter of suit passed from him to any one.
In respect to the merits of the case the testimony is conflicting. The land was sold in November, 1895, for delinquent taxes assessed thereon for the year 1894, in the name of Nancy Taylor, the owner of the fee, who died in 1893. TI. B. Hughes became the purchaser at the price of $5.64. There does not appear to be any irregularity in the tax sale proceedings. The land is proven to be worth $500 at that time. Michael Taylor, the husband of Nancy Taylor, having a life estate in the land, had a right to redeem. He testified that he was illiterate and did not know how to proceed about redeeming it, and employed the defendant J. E. Taylor, his neighbor, a man experienced in business, to redeem it for him, and placed in his hands $13.00 with which to do it; that this was within the year next succeeding the sale; that after the time of redemption had passed J. E. Taylor told him he had redeemed it; and that he did not know he had not done so but had taken a deed for it to himself from Hughes and the clerk of the county court, until he heard J. E. Taylor had deeded it to Henry Young. J. E. Taylor did not testify, nor did he answer the bill which averred those facts. A number of other witnesses testified to conversations with J. E. Taylor, and conversations between him and others, had in their presence, in which he admitted Michael Taylor had furnished him money with which to redeem the land. Some of them, however, say J. E. Taylor said it required two or three dollars more than he had received, to redeem it. This extra amount was occasioned by the cost of the tax deed which J. E. Taylor took to himself. The amount of taxes for which the land was sold shows that even less than $13.00 was required to redeem. If those facts are true, (and there is ample evidence to prove
Defendant .took the depositions of a number of witnesses who testified concerning statements made by Michael Taylor, which are not consistent with his own testimony, but we think he has sustained the burden of proving the allegations of his bill respecting the alleged agreement with J. E. Taylor for the redemption of the land. He exhibited with his bill a writing dated November 25, 1896, just two days before the expiration of the redemption year, signed by J. E. Taylor alone, in which he agreed to make to Michael Taylor a deed for the land “against 1st of April 1896”, (which date as to the year is evidently a mistake, and should be 1897). That writing contains this proviso: “providing he pays fees for making and recording deed and amount of money I am out in buying said land from court.” Counsel for appellant Young insist that this writing proves a conditional purchase by Michael Taylor; that the condition as to time was essential and was not complied with; and that, not being complied with, it gave the vendor the right to disregard the contract. They also urge that it informed Michael Taylor that J. E. Taylor had bought the land, instead of redeeming it. But Michael Taylor testified that he could not read, and did not read the paper, and understood from J. E. Taylor that it simply gave him from that time, until the first of the next April, to pay him the balance due for redeeming it. More
The next important inquiry is, did Henry Young, at the time of his purchase from J. E. Taylor, know of his trust relation, or have knowledge of such facts as would put a prudent person on inquiry, which would lead to a disclosure of such relation? We think the evidence abundantly shows that it was his duty to make inquiry of Michael Taylor concerning his claim to the land. In the first place, the deed from J. E. Taylor and wife to him, upon its face, casts ■suspicion on J. E. Taylor’s title. It bears date on the 21st of June, 1897, and contains this recital: “Said land was sold to Henry Young Dec. 28, 1896, provided Michael Taylor did not pay said J. E. Taylor amount of money it cost him which was about $30 against April 1” 1897 and as said Taylor has not redeemed such or nothing paid on the same, said land is ■conveyed to said Young as per agreement.” This called attention to some interest Michael had in the land; yet he never went to see him to inquire concerning his claim, until ■after he had bought the land. It also shows that Young had conditionally bought the land at a time when his grantor recognized the superior right, for a time at least, of Michael Taylor; thus disclosing eagerness on J. E. Taylor’s part to get rid of the land. Michael Taylor’s right of redemption from J. E. Taylor is recognized by the paper. It thus disclosed a substantial interest in Michael Taylor, amounting to more than a mere option to buy it. Such right to redeem was not forfeited by failure to pay at the time specified. It ■also revealed the fact that J. E. Taylor, according to his admission in the recital, recognized that he was holding the title ■only as security for what he claimed he had advanced in the purchase of the land for Michael Taylor. This of itself was sufficient notice that he had not bought the land for himself, ■and if he had consulted Michael Taylor the presumption is he would have learned the state of facts disclosed in Michael Taylor’s testimony. The insignificant sum paid by Young for the land is a potent circumstance tending to show he had little
The taxes for all the years, since the year 1897,, presumably have been paid by TIenry Young, but the final decree does not provide for his reimbursement. True, it recites that plaintiffs offered to pay him any further sums of money that' the court might direct they should pay, and shows he declined to receive it. hie doubtless did so on the ground that his acceptance might prejudice his right, and hence the decree should have ascertained the amount of taxes paid, and conditioned the
The decree of January 30, 1914, should have provided that the rejection of the Louis F. Payne Oil Company’s petition was without prejudice to any right it may have to defend its lease on the ground of estoppel. The twro decrees appealed from will be modified in the respects above indicated, and affirmed as thus modified; and the cause will be remanded for ascertainment of the amount of taxes and interest thereon due Henry Young. Appellees, having substantially prevailed here, are entitled to their costs against appellants.
Modified, affirmed and remanded.