99 Va. 460 | Va. | 1901
delivered the opinion of the court.
Mary E. Buffin, wife of A. B. Buffin, was the owner of a certain parcel of real estate in the city of Richmond, conveyed to
In December, 1899, the Virginia Building and Loan Company filed its bill in the Law and Equity Court against A. R. Buffin and Mary E., his wife, for the purpose of enforcing the deed of trust given by them to McCurdy, and for the appointment of a receiver to rent out the property during the pendency of the proceedings. After the appointment of the receiver, G-lenn filed his petition in the suit, and was made a party defendant thereto, and given leave to make defence to the bill. Whereupon the
Section 666 of the Code, as amended, requires that the application to purchase real estate bought by the auditor for delinquent taxes due the Commonwealth shall be served, not only upon the previous owner of the real estate, but upon the trastees, mortgagees, and beneficiaries as shown by the record in any deed of trust or mortgage on said real estate, or their personal representative, provided the names of any persons may be omitted which do not appear of record in the clerk’s office of the county or corporation in which the land is situated, and if it be situated in the city of Bidhmond, which do not appear of record in the clerk’s office of the Chancery Court of said city, &c. Section 666 further provides that the terms of section 661, as to the deed from the clerk to the applicant, shall apply “to deeds made under authority of this section.”
Section 661, as it stood when the deed in this case was made to appellee provided that when the purchaser of any real estate sold under the preceding sections of chapter 28, his heirs or assigns had obtained a deed therefor, and the same had been duly admitted to record, &c., the right or title to such real estate should stand vested in the grantee in such deed as it was vested
As amended by act of March 7, 1900 (Acts 1899-1900, p. 1234), in force when the decrees complained of in this cause were made, section 661 provides that when a purchaser of any real estate sold as aforesaid (i. e., under the preceding sections of chapter 28 of the Code), or sold in pursuance of section 666, has obtained a deed therefor, &c.,the right or title to such estate shall stand vested in the grantee, &c., subject to be defeated only by proof (1) that the taxes for which said real estate was sold were not properly chargeable thereon; or (2) that the taxes, &e., properly chargeable on such real estate have been paid; or (3) that the notice of the tax sale where made to a person other than the Commonwealth, or notice of the application to purchase in case the sale was made under section 666 has not been duly given; or (4) -that the payment or redemption of the real estate has Leen prevented by fraud, &c.
Appellee has made no claim whatever that he gave to appellant or to McCurdy, trustee, any sort of notice of his application under which the deed from Christian, clerk, conveying to him the property which is the subject of litigation in this suit was made, and there is no sort of question raised that the deed from A. B. Buffin and Mary E., his wife, to McCurdy, trustee, of December 10, 1895, was admitted to record in the clerk’s office of the Chancery Court of the city of Richmond, December 13, 1895, and that it shows upon its face that A. R. Buffin and Mary E. Buffin were husband and wife, and in the description of the property conveyed recites that it is the property of Mary E. Buffin, conveyed to her by T. W. Stagg and wife by their deed of August 1, 1894, recorded in the clerk’s office of the Chancery Court of the city of Richmond, deed-book 152 A, p. 263. But
The negligence imputed to appellant in the preparation of its deeds of trust consists only in stating the conveyance as from “A. R. Buffin and Mary E. Buffin, his wife,” instead of from “Mary E. Buffin and A. R. Buffin, her husband.”
Appellee further contends that if appellant is not estopped from setting up the want of notice of the application to purchase the property in question, under section 666 of the Code, he is fully protected in his right to hold the property under his deed from Christian, clerk, 'by virtue of section 661 of the Code, as it stood when the deed was made and recorded. In other words, although section 666 expressly required appellee, before obtaining his deed to the property, to serve a copy of his application to purchase the same from the Commonwealth, upon appellant and its trustee, either by actual service of a copy of the application, or by publication in a newspaper under certain conditions, and furthermore provided that section 661 should apply to deeds made under authority of section 666, i. e., where the provisions of that section had been complied with, still, appellee is secure in his right to hold the property under his deed from Christian, clerk. To support the last proposition, appellee invokes the decision of this court in Thomas v. Jones, 94 Va. 756, and Va. Coal Co. v. Thomas, 97 Va. 527.
We deem it wholly unnecessary to consider the question whether or not section 661, as amended by the act of March 7, 1900, applies to deeds made before the amendment was adopted. The object of the law before and since that amendment was to
It was never intended 'by the law-making power of the Corn-wealth to lay down a hard and fast rule that one who obtained a deed for lands owned by the Commonwealth- for delinquent taxes under section 666 of the Code should be secure in his title to the land, although he had obtained his deed without complying with the essential requirements of that section. If such an interpretation be given the statute, then a party having a right in the land could have it taken from him without notice of the proceedings by which it is done, and without an opportunity to be heard. It is entirely reasonable for the legislature, in order to more effectually collect the revenues due the Commonwealth for taxes, to make more stable titles acquired under tax sales, by providing that a title acquired by compliance with the provisions of the statute under which the deed is made is “subject to be defeated only by proof that the taxes or levies for which said real estate was sold were not properly chargeable thereon, or that the taxes and levies properly chargeable thereon have been paid.” So construed, that provision of the statute (section 661) has been upheld by this court as a constitutional and a valid exercise of legislative power. Thomas v. Jones, supra, and Va. Coal Co. v. Thomas, supra. But it has nowhere been held that this statue is to be so construed as to bring within its protection a deed obtained without compliance with all the provisions of section 666, under which the deed was made. In the case at bar the deed was made confessedly without compliance with the provisions of that statute, as no sort of notice was given to appellant or its trustee of the proceedings upon the application to purchase the property resulting in the deed under which appellee claims. So to construe the statute as to bring appellee within the protection of section 661, would make it plainly a violation of both the spirit and the letter of the Fourteenth Amendment of the Con
In Thomas v. Jones, supra, the bill to set aside the deed was filed by the holder of a vendor’s lien, the previous owner of the property not being a party to the suit, and as the statute was when the deed in that case was made it was not required that notice of the application to pinchase the land should be served on a creditor whose debt was secured thereon, and there was no allegation in the bill of entire lack of notice, but of a defective notice of the application. The deed in that case was held to be Valid and within the protection of section 661, upon the ground that no valid objection had been shown to the deed, or to the proceedings which led up to its execution.
In Virginia Coal Co. v. Thomas, supra, the constitutionality of section 661 of the Code was upheld, and Thomas’ deed declared to be within the protection it afforded, but stress was laid upon the fact that Thomas had complied with all the provisions of section 666. The opinion by Keith, P., after a full discussion of the undisputed facts and the evidence in the case, says: “So that Thomas, having complied with, all the requirements of section 666, comes within the protection of section 661.”
In the more recent case, also styled Thomas v. Jones, 98 Va. 323, Thomas had procured from the clerk of the County Court of Culpeper, and had recorded, a deed for Jones’ land, which had been bought by the Commonwealth for delinquent taxes, and
It is true that in that case Thomas obtained his deed under circumstances which amounted to> a fraud upon the rights of Jones, though the fraud was not intended, whereby a case was made for eqMtable relief, independent of the statute, but the opinion clearly upholds the principle that, notwithstanding the provisions of section 661 of the Code, the holder of a deed made under authority of section 666 is not entitled to the benefits of section 661, unless all the provisions of section 666 have been complied with. These provisions relate to the steps that an, applicant to purchase under that section must take in order to' acquire the Commonwealth’s title to the land. After he had taken these steps, and not until then, is he entitled to- a deed to the land. When ¡he has in fact complied with all the provisions of the statute, and gotten rightly Ms deed, he comes within the protection of section 661, and no question can he raised as to the regularity of the proceedings by wMch the Commonwealth acquired title to the land conveyed to him by his deed, except as therein provided. But until he is in tMs position, neither in morals nor under the law is he entitled to hold the property, and the deed he holds cannot he said to have been obtained under
That the deed of trust of appellant in this case was delivered to the clerk 'and duly admitted to' record cannot be controverted, ■and the failure of the clerk to properly index it does not affect its validity as notice to subsequent purchasers of the property. As was said by Staples, J., in Old Dominion Granite Co. v. Clark, 28 Gratt. 617: “If the clerk fails to make the index, he injures those who desire to make the search. The clerk’s duty, therefore, is to the searcher and to the public, and not to the holder of the deed. When the latter has placed his deed upon the record book, he has done all the law requires him to do. Any one who will take the trouble can examine this record. The time and labor expended in making this examination, is merely a question of degree. If the party making the search is content with looking at the index, without examining the record, and he is thereby misled, his remedy is against the clerk, whose duty it is to prepare the index for the benefit of the searcher, and not the holder of the deed. These views are not only in conformity with our statute, upon a fair and reasonable interpretation, but they are intrinsically just and sensible in themselves.”
In that case the question was whether or not the indexing of a judgment was necessary to give it effect as notice to purchasers of property upon which it became a lien when docketed, but the court says that the reasoning applies to the indexing of deeds and judgments alike. When that case arose there was no statute providing that a judgment should not be regarded as docketed as to any defendant in whose name it was not indexed, but subsequently such a statute was enacted, and is now section 3561 of the Code. ISTo such provision is found in the statute relating to the recordation of deeds.
In Beverley v. Ellis, 1 Rand. 102, it was held that where a deed is duly proved or acknowledged, and ordered to be recorded,
The decision in that case has been often cited by this court, and is quoted from by Burks, J., in Davis v. Beazley, 75 Va. 491, who adds that if the deed is duly admitted to record, notice in contemplation of law is thereby given as effectually as if it h'ad been spread on the deed book, and the certificate of the clerk written on the deed that it has been so admitted to> record is evidence of the fact. The admission to> record is in law notice of the deed to the world. Bor this purpose the admission to record is effectual, though the clerical act of spreading the instrument in extenso on the deed book be never performed.
A recorded instrument is sufficient to operate as constructive notice under the registry laws if the property be so described or identified that a subsequent purchaser or encumbrancer would have the means of ascertaining with accuracy what and where it was, and the language used be such that, if he should examine the instrument itself, he would obtain thereby actual notice of all the rights which were intended to be created or conferred by it. Florance v. Morien, 98 Va. 26, and authorities cited.
The statute as to indexing deeds, now section 2505 of the Code, is substantially the same as it has always been. "While the index is in fact the key to the deed books, and is depended upon by all examiners of title, it is not essential in Virginia to due registry. 2 Va. Law Reg. 620.
The evidence adduced by appellee as to the reasons why the trust deed in this case was not indexed in the name of Mary E. Buffin, as the grantor, is wholly irrelevant. If appellee contented himself with only looking to the general index to deeds in the
We are therefore of opinion that the decrees appealed from ai*e erroneous, and they will be set aside and annulled, and this court will enter such decree as the lower court should have entered, setting aside the deed from Christian, clerk, to appellee, as null and void as to the appellant, upon condition that the appellant refund to appellee all taxes paid by the latter on the property, with interest thereon from the date or dates the same were paid, and the cause will be remanded for such further proceedings as may be necessary to carry into effect the decree of this court.
Reversed.