On the 3d day of May, 1889, A. G. Tebbetts, commissioner of the school lands for Kanawha county, filed a petition in the Circuit Court of said county under section 5, c. 105, Code, and also in pursuance of the provisions of section 41, c. 31, of the same, against a lot situated in the city of Charleston, forfeited in the name of John P. Hale, praying that the same might be sold for the benefit of the school fund, alleging that said lot, forfeited in the name of John P. Hale, was dropped or omitted from the land-book of said county for the year 1875; that it was valued at $1,050.00, and has not been placed on said land-book in any name since that year, and that no taxes had been paid on
Said petition was referred to a commissioner in chancery, who was instructed to inquire into and report upon the matters and things therein contained, and particularly to inquire and report as to the amouut, of taxes and interest due and unpaid on said lot; in whose name it was forfeited, and when and how forfeited; in whom the legal title was at the time of the forfeiture; and, if more than one person claimed adverse title thereto at the date of the forfeiture, the name of each of said claimants, and a reference to the deed-book or books in which the title-papers of any claimant thereof can be found; what portion of said lot is claimed by any person or persons under the provisions of section 3, art. 13, of the Constitution, of this state, with the names of such claimants, and the amount claimed by each, as far as said commissioner in chancery could ascertain the same but said commissioner was directed not to proceed to execute said decree until a summons should be served, as required by section 5, c. 105, Code.
Said commissioner, after giving the notice as required by law, reported to the Circuit Court of said county on the 27th day of June, 1889, that: “ (1) The lot known as the ‘Estill Lot/ and named in said petition, was forfeited in the name
Said commissioner further reported that the city of Charleston, by its attorney, had filed a petition asserting its claim for taxes against said land and interest from the year 1875 to 1888, inclusive; the amount of taxes each year, at a valuation of $1,050.00, at $1.25 per $100.00, was equal to $13.12-| ; and that the whole claim asserted was $183.75 ; and that he disallowed all of said claim, except the taxes, for the past five years, ending with 1888, and interest, which aggregated the sum of $74.75.
To this report the city of Charleston excepted, so far as the same disallowed the claim of said city set up by its petition anterior to the five years ending with 1888, because there is no law which limits the claim of said city for taxes to five years; and A. L. & M. P. Puffner excepted to so much of said report as ascertains any taxes due the city of Charleston in said proceeding, claiming that, if said city was entitled to any taxes on said lot, it could not collect them in said proceeding ; that all the taxes collected in said proceeding were payable to the commissioner of school lands, who, after paying costs, pays the remainder to the sheriff and the treasurer; also because said commissioner allowed interest on city taxes.
On the 12th day of July, 1889, said cause was heard upon the report of said commissioner in chancery, and the exceptions indorsed thereon by the city of Charleston and A. L.
The questions for consideration in this case arise upon the exceptions indorsed upon said commissioner’s report, said city of Charleston excepting, because it is not allowed all of the taxes assessed thereon for municipal purposes from the year 1875 to 1888, inclusive; and said A. L. & M. P. Pufiner excepting to so much of said report as finds any taxes due the city of Charleston in said proceeding, claiming that, if said city of Charleston is entitled to any taxes on said lot, it can not collect them in said proceeding. The commissioner of school lands for Kanawha county initiated the proceedings by filing Ms petition against the forfeited lot, and praying that the same may be sold for the benefit of the school fund as required by law, and said A. L. & M. P. Pufiner, the original owners of the forfeited lot, filed their petition to redeem the same under section 14, c. 105, Code.
And the exceptions indorsed on the report of the commissioner in chancery, to whom were referred the inquiries above stated by said city of Charleston, raise the questions as to the terms and conditions upon which said Rufi'ners should be permitted to redeem said lot. These may be found in sections 18, 14, c. 105, and section 42, e. 31, Code; which chapters, being in pari materia, must be read and construed together. Section 39, c. 31, provides, among other things, that when,
This, then, is what is meant by the taxes charged and chargeable thereon when a party seeks to redeem under chapter 31, and it must be what is meant by the taxes charged and chargeable thereon in section 42 of said chapter, in providing how the former owner may receive the excess for which the land may be sold over the taxes charged and chargeable thereon ; and it must be what is intended by the same words in section 13, e. 105, which section uses the same language in providing how the former owner shall be entitled to recover the excess of the sum for which the land may be sold over the taxes charged and chargeable thereon. What, then, is meant in section 14 of said chapter when it provides that, “at any time during the pendency of the proceeding for the sale of any such land as hereinbefore mentioned, such
Are we not to understand by “all costs, taxes, and interest due thereon,” .that the same is meant and intended as by the words charged and chargeable thereon in section 13 c. 105, and sections 33, 42, c. 31, of the Code, to wit, all taxes and interest due thereon, including municipal corporation taxes? If they are to be paid by the party seeking to redeem under chapter 31, why should they not be paid by the party who desires to redeem, under section 14 of chapter 105. Surely the expression, “all costs, taxes, and interest due thereon,” as used in said last-named section, would include all the taxes charged and chargeable thereon, and all the different kinds of taxes enumerated in said section 33, c. 31, aforesaid. By section 6, c. 105, it is provided that “the court shall also, by a proper decree, refer the said petition to a commissioner in chancery thereof, with instructions to inquire into and report upon the matters and things therein contained, and such others as the court may think proper to direct, and particularly to inquire and report as to the amount of taxes and interest due and unpaid on each tract, lot, and parcel and part of a tract or lot of land mentioned in the petition,” etc. Now, under this section, we could not regard the duty of such commissioner as properly complied with by merely ascertaining the amount of state taxes, or state and county taxes due on such lot; because he is required to report the amount of taxes and interest duo thereon.
Counsel for A. L. & M. P. Bufiner in their brief seem to treat and regard this as a proceeding on the part of the city of Charleston to recover the taxes due said city on said lot.
But said city of Charleston is not seeking to sell said lot for the non-payment of taxes in this proceeding. It is only claiming that A. L. & M. P. Rufiner can not redeem said lot without paying the taxes due said city thereon, with the interest allowed by statute; and lean arrive at no other con-
It is assigned as error by the appellant that said commissioner applied the limitation of five years to the claim for taxes asserted before him by said city of Charleston. Now, it will be perceived that said city of Charleston has brought no suit of any character under section 28, c. 39, Acts 1875, which contains the charter of said city of Charleston to enforce its lien for taxes against said lot; neither has it brought a suit, whether appropriate or inappropriate, of any other character, to enforce said lien ; but in response to the petition of said A. L. & M. P. Rufiher, praying leave to redeem said lot under section 14, c. 105, Warth’s Code, said city claims that the payment of all the taxes due upon said lot is a condition precedent to the right of said Ruffners to redeem said lot, which must be complied with before they can redeem the same; and it appears to us that it is immaterial what becomes of said municipal taxes after they are paid into court, or to the commissioner of school lands; but'all costs, taxes, and interest due thereon must be so paid, or no redemption can be legally obtained, so far as the interest is concerned. Sec. 13, c. 105, and section 42, c. 31, of the Code, both fix the rate at 12 per cent.
KeveRsed. Remanded.