30 W. Va. 176 | W. Va. | 1887
Suit iu equity brought in September, 1881, by S. L. Towns-.'hend and John Matthews against Gus. J. Shaffer, in the -Circuit Court of Preston county, to set aside a tax-deed made by the clerk of the County Court of said county to the defendant, dated January 27,1883, for 182£ acres of land. The material facts appearing in the record are these: At a sale of lands for the non-payment of taxes, made by the sheriff of said county on January 2,1882, the said 182J acres, which was charged for taxes in the name of the plaintiff Townshend, was sold for the taxes due thereon for the years 3 879 and 1880, and purchased by the defendant for the sum of $60.68, being the amount of taxes, interest, damages, and commissions due thereon at the time of sale, including fee for receipt. Prior to the sale, - the land had by executory contract been sold by Townshend to his co-plaintiff, Matthews, but no deed had been made conveying the same to Matthews. By separate powers of attorney, dated respectively on the fifteenth .and twentieth days of December, 1882, the said Matthews and Townshend authorized J. Ami Martin, clerk of the ■County Court of said county, to do all things necessary to protect their interests and title to said land. After receiving these powers of attorney, the said Martin drew his check on the National Bank of Kingwood, dated December 29,1882, payable to the order of the defendant, for “sixty-seven 96-100 dollars, in redemption of Townshend’s land,” and sent the said check by mail to the defendant. Martin had the money in the bank to meet said check, and it would have been paid if presented to the bank. The defendant received the check before the year allowed for the redemption of the land had expired, but returned it to Martin with a note in these words: “Deae Sir : As I have paid considerable more than this on this land, I can not accept this and release the land; will see you soon. — G. J. S.” After one year from the date of sale the clerk of the County Court made the deed which is sought to be set aside, by this suit. By decree made November 28, 1885, the Circuit Court dismissed the plaintiffs’ bill, and they have appealed.
The only question, which I deem it necessary to determine, is, whether or not the facts above stated operated as a re
1. In regard to the defendant’s first ground of defence above-stated, it is necessary to say but little. If neither of the plaintiffs had any title, legal or equitable, then- the payment of the taxes-or redemption of the land could not injure the defendant; for if either the defendant or some one else was the true owner of the land, the fact that the defendant had at the tax-sale purchased the plaintiffs’ pretended title would amount to nothing. If the defendant was-the owner, the tax-deed would be useless to him; and if some one else was the owner, and had paid the taxes thereon, such owner’s title would not be affected by the tax-deed. But be this as it may,, the defendant having purchased the land as belonging to-
2. The second ground of defence denies that the alleged powers of attorney authorized Martin to redeem the land. These powers of attorney are in the record and appear to .have been duly executed. They appoint Martin attorney for the plaintiffs, and expressly authorized him to protect all the interests of the plaintiffs in the title to the land which is •described therein, and which is the land here in controversy. It seems to be thought by the defendant that these powers of attorney are insufficient, because they do not expressly authorize Martin to pay the taxes and redeem the land. In Masterson v. Beasley, 3 Ohio 301, it was held that a power •of attorney to sell land authorized the attorney to redeem from a tax-sale. So, in Patterson v. Brindle, 9 Watts 98, a power “to take care of the land” authorized the attorney to redeem. Blackw. Tax-Title, 493, (side p. 432); Chapin v. Curtenius, 15 Ill. 427. “It is a well-established rule that statutes authorizing the redemption of lands sold for taxes are to be construed liberally in favor of the persons entitled to redeem.” Danser v. Johnsons, 25 W. Va. 380, 385, and cases cited. It seems to me, therefore, that the powers of attorney were clearly sufficient to authorize Martin to redeem the land.
3. The only remaining question is .: Did the acts of Martin as attorney for the plaintiffs operate as a redemption of the land ? The defendant insists that the check of Martin was not money, and therefore did not constitute a good tender of the taxes. This Court has repeatedly -decided, incasesof the
In the case before us, it is not pretended that the $67.96 was not the full amount paid by the defendant for the land, with interest and charges; nor is it questioned that the check was received within the year allowed for the- redemption ; neither did the defendant object to the check as a payment on the ground that it was not money or a legal tender; but the refusal to accept payment was upon an entirely distinct ground, in nowise connected with any of the grounds now insisted upon by him. The only objéction made by him, and this he made in writing, was that he had paid considerably more than the sum mentioned in the check, on the lands, and informed Martin that he would see him soon. He did not say that he had paid taxes subsequent to his purchase, but simply that he had paid considerably more on, the land. Ye have already shown that there is not a particle of evidence in the record that he paid anything as taxes or otherwise other than the $60.68 he paid as purchaser; nor is there any claim that he saw Martin, as he promised to do, or made any demand upon or further objection tq him. His promise
In Byington v. Buckwalter, 7 Iowa 512, it was held that the failure of the officer to enter a memorandum of the redemption of land in the list of tax-sales was not sufficient to invalidate the redemption, on the grounds that the party redeeming could not be held responsible for the omission of the officer. Bacon v. Conn, Smeedes & M. Ch. 348; Halsey v. Blood, 29 Pa. St. 319; Sperry v. Gibson, 3 W. Va. 522. But this question has been settled by this Court in Koon v. Snodgrass, 18 W. Va. 320, in' which it was decided that, where the proper tender was made within one year from the sale, and refused by the purchaser, it was not essential to the perfection of the owner’s right to redeem that he should pay the amount so tendered to the officer.
For the reasons and upon the authorities aforesaid, I am ■of opinion that the decree of the Circuit Court must be reversed, and a decree entered by this Court, canceling the tax deed made to the defendant, and ordering the plaintiff Matthews to pay to the defendant the $67.96 tendered to him
REVERSED.