64 W. Va. 205 | W. Va. | 1908
In ejectment by tax-purchaser against one claiming under the former owner, the plaintiff introduced in evidence his tax deed from the cleric of the county court, showing sale of the land sued for and purchase thereof by him in December, 1901, for the taxes delinquent for 1899, objection to which by the defendants was overruled. After the plaintiff had introduced all his other evidence the defendants, to maintain the issues on their part and to impeach the validity of the tax deed, introduced in evidence certified copies of the delinquent and sales returns of the ’sheriff for the taxes of 1899. These documents, at first admitted, were at the conclusion of defendants’ evidence, on motion of plaintiff, excluded; and following the verdict for plaintiff, the motion of defendants to set the same aside and for a new trial was overruled, and judgment entered thereon for plaintiff, to review which the defendants bring error.
While other points respecting the plaintiff’s title papers are presented, the only one of real merit is the action of the court in rejecting the copies of the delinquent and sales returns^ The statute, sections'843, 844, Code 1906, requires the sheriff, on or before the first Monday in June next succeeding the year for which taxes are assessed, to make out a list of real estate in his county delinquent for the nonpayment of the taxes thereon for that year, and on returning the same, at the foot thereof, to take and subscribe the oath prescribed therein before some person authorized by law to administer oaths, who shall certify the same. We emphasize the fact that the oath of the sheriff must also be certified by the officer. The oath to the delinquent return for the year in question, while filled up and subscribed by the sheriff, and while the jurat of the officer is filled up with the date, July 13, 1900, the same day the list appears to have been presented to the county court, it is not certified by any person. It nowhere appears before whom it was intended the oath should be taken and subscribed. The sales return is defective in the same particular. Did the court err in rejecting these papers?
With’ fespect to the delinquent return, however, the question, can,not be answered in the same way... .The delinquent return is the foundation of the tax title. - We have hele!, aji,.the present term, in Devine v. Wilson, that ¡ when tl}c affitja/yit is whol]j omitted, from such delinquent, return th,e |js,t is void, and., the statute being.,mandatory, the deed of lthq;.c,opnty clerk based thereon wall be set aside as yoid. The,,. orphan of a ligt sq .essential in. the chain, pintle.de-stroys,,jts, .efficacy. .Withqut the affidavit thereto, the ¡list, in lega.li effect, constitutes no. delinquent return.. .p.ut^the .question .re.cqrs, does the .failure of. the officer , tq subscribe his/name tq the jurat bring- the-, .present cas.e upthim the rule of. Devine v. Wilson? In that case the affidavit was wholly omitted; here, the oath prescribed is subscribed by the sheriff. But, in the absence • of the signature of any person to the jurat, can we say, as argued, that, the omission amounts to a mere irregularity, cured by the statute.? Without being, .certified as required, how can we say the oath wiis. in fact taken? Would such a paper support a prosecution for . perjury or false swearing? -Is .it any .oath at all?, We think .it clear.it can not be regarded., The absence pf the signature of the officer to the jurat-destroys tire, evidential quality of the affidavit and return, and ren
When the affidavit of the officer relates to a delinquent tax return, which the law requires shall be recorded, the omission of the affidavit, or of the jurat or the signature thereto of the officer, renders the return absolutely void, and the omission can not be supplied or the record subsequently corrected. Titles to land can not be allowed to stand on such defective and precarious records. 1 Blackwell on Tax Titles (5th Ed.) section 463; Black on Tax Titles (2nd Ed.) section 200; Cotzhansen v. Kaehler, 42 Wis. 332; Skinner v. Brown, 17 Ohio St. 33, 35; Miner v. McLean, 4 McLean (C. C.) 138. The statute of Ohio required the list to be “attested by the collector under oath”; and it was held in Skinner v. Brown, supra, that verification in the form of an official certificate appended to a delinquent list, not so attested under oath, was not sufficient and that no presumption arises from the record that it was verified. This Ohio case, however, refers to two former cases, viz: Winder v. Starling, 7 Ohio 539, and Ward v. Barrows, 2 Ohio. St. 241. The latter case approves the holdings of the other, that inasmuch as the collector had literally pur
We are therefore clearly of the opinion, on reason and authority, that, on account of the absence of the signature of the officer to the jurat, the delinquent return in this case amounted to no return, rendering the deed based thereon void; and as the present statute, section 29, chapter 31, Code, makes the tax deed prima facie evidence, and prima facie evidence only, the record of the void delinquent return on which the sale and deed were predicated was competent and proper evidence to impeach the sale and deed, and the court below erred in rejecting it. As the law formerly was, the plaintiff in ejectment claiming under a tax deed was obliged to introduce the entire record of the tax proceeding leading up to and including the deed. Warrel on Ej., sections 328-330; Hays v. Heatherly, 36 W. Va. 613, and cases cited. Under the present law, the burden is cast upon the defendant to impeach the deed by the prior void tax proceedings.
For the reasons given, we reverse the. judgment below, set aside the verdict, and award the defendant a new trial.
Reversed, a/nd a New Trial Granted.