85 W. Va. 631 | W. Va. | 1920
Lead Opinion
Plaintiffs became the owners of lot ISTo. 3 in the town of Bramblett in Wyoming County, in the year 1915. Prior to the conveyance to them the lot was entered upon the land books for the year 1915 in the name of their vendor, and the taxes thereon charged against the same in his name. These taxes were not paid and the sheriff returned the lot delinquent for the non-payment thereof, and the lot was subsequently offered for sale in satisfaction of the taxes charged against it, at which sale the defendant, according to the sheriff’s return of sales, purchased one-fourth of the lot for the taxes and charges and, according to the receipt given him by the sheriff, purchased the whole thereof for such taxes and charges. The lot was not redeemed within the time required by law, and upon application of the defendant the clerk of the county court made a deed to him conveying the whole lot. Alleging many irregularities in the tax sale, and also alleging that only one-fourth of the lot was purchased by the defendant for the taxes, and exhibiting a certified copy of the sheriff’s return of sale as evidence of this fact, the plaintiffs brought this suit to cancel said tax deed. The defendant by his answer denied all of the allegations of the bill except the allegation that the sheriff’s
We are of opinion in this case that the report of sale made
But can it be said that the deed is absolutely void as contended for by the plaintiffs? It is insisted that under the decision in the case of Shrewsbury v. Horse Creek Coal Land Company, 78 W. Va. 182, this deed is absolutely void, and of no effect to pass any title whatsoever to the purchaser. We do not think that case is authority for the proposition contended for. In that case the sheriff undertook to sell an undivided interest in land which it has been repeatedly held was a void sale, and then after the sheriff had sold this undivided interest the purchaser undertook to divide the land between himself and the other joint owner and take a deed for the part laid off to himself. It was held in that case that the sale and the deed made under it were void. In this case the sale is not questioned. The only defect is the imperfect execution by the clerk of the power conferred on him to make a deed. Instead of making a deed for a one-fourth undivided interest in this town lot as he was authorized by law to make, his deed attempted to convey the whole thereof. This act was unauthorized so far as it went beyond the conveyance of the interest purported to have been sold, but can it be said that it is any more than an illegal and defective performance by the clerk of the duty imposed upon him which is cured by the provision of § 25 of ch. 31 of the Code? We are of opinion that this imperfect execution by the clerk of the county court of the power conferred upon him, so far as it affects the interest purported to have been sold, is cured, and that the deed is good- to pass the one-fourth undivided interest.
Our conclusion, therefore, is to reverse the decree of the circuit court of Wyoming County and enter a decree here can-celling the tax deed to the extent that it attempts to convey a
Reversed and rendered.
Dissenting Opinion
(dissenting):
I am Unable to concur in this decision. The turning point is conflict between the list of sales and the memorandum- of sale executed by the sheriff and delivered- to the purchaser, the former having been made by the sheriff, presumptively in the absence of the purchaser and after all the sales had been completed, and the latter, presumptively at the time of the particular sale in question and in the presence of the purchaser; the giving of the receipt being an inter partes act and the making of th e report, an ex parte act.
In the Iowa cases referred to' in the opinion prepared by Judge Ritz and adopted by my associates, the statute required the certificates given to the purchasers, to be made from the record of the sales filed, and not at the time of the sale. The report or list of sales was first made up and recorded or filed for record and then the receipt or certificate was made from and based upon that report or record. The receipt or certificate was required by express terms of the statute to conform to the record, whether the latter was right or wrong. Under our statute, the receipt is not based upon the list of sales nor made after the filing theredf. It is an original paper and antedates the preparation and filing of the list of sales. In Minnesota, the order of procedure and relation in point of time between the delivery of the certificate to the purchaser and the making of the record, are the same as they are under ours, and, there, the certificate is regarded as the better or superior- evidence and hence allowed to prevail over the record, in instances of conflict. McQuade v. Jeffray, 47 Minn. 326.
In my opinion, the difference between the legal status of the purchaser’s certificate, ■ under the Minnesota statute, and the receipt provided for by ours, does not afford any good ground of escape from the effect of the precedent found in the decision above cited. Oúr receipt is a formal, statutory one which the selling officer is bound to give and for which the
The statutory preference of the receipt over the list of sales,
That the receipt is evidence of a contract made by the sheriff acting for the state or some , other principal, there can be no doubt. The statute denominates the transaction a sale, and a sale always involves a contract. Money is paid by the purchaser in exchange for which he receives a paper signed by the sheriff and giving him conditional right to call for a deed which the statute makes prima facie evidence of good title against the former owner and persons claiming under him and conclusive evidence thereof against other persons. That paper, when produced, proves a conditional sale of certain land. That there is a point in the proceeding at which a sale is effected, the statute necessarily implies. At what point can that take place ? Obviously at the exchange of the money for the memorandum of sale. The purchaser’s bid initiates the transaction, and it is completed by delivery of the memorandum. All that precedes and follows is ex parte. Now, the statute says: “No sale or deed of any such real estate under the provisions of this chapter
Reference to the history of tax-deed legislation proves legislative purpose neither to make the deed depend upon the list of sales nor to make it conform thereto. See. 19 of ch. 33, Code of 1868, did require such conformity, saying the deed should recite “All the material circumstances appearing in his (the recorder’s) office in relation to the sale.” In Jones v. Dils, 18 W. Va. 756, a deed conveying a less quantity of land than was shown by the list of sales to have been purchased, was set aside in 1881. At the next session of the Legislature, the requirement of that recital was struck out of the statute, by an amendment and has never appeared therein since. Acts 1882, ch. 130, sec. 19. At the same time, sec. 25 was so amended as to prevent the setting aside of deeds on the ground of the decision in Jones v. Dils. At the same time, sec. 19 was so amended as to require the deed to recite the receipt or memorandum of purchase, instead of the list of sales. And, again, sec. 25 was then amended by insertion of the broad curative provision above, quoted, inhibiting the setting aside of any sale or deed, for any omission or error on the part of any officer, after sale was made.
In view of the superiority thus given'to the receipt or memorandum of purchase, I do not see how it can be held that, in ease of a discrepancy, the list of sales can be permitted to prevail over it. The deed would be good, if there were no list of sales at all. How can a list shown by the contract to be erroneous be permitted to invalidate it?