44 W. Va. 19 | W. Va. | 1897
This is a suit to set aside a tax deed made by the clerk to the purchaser, and a deed by that purchaser to another, resulting- in a decree annulling- both deeds. One objection to this tax deed is that Winning- owned two separate tracts, one of fifty acres, another five hundred and four acres, and the charg-e on the tax book combined both tracts, instead of a separate charg-e, making- the charge of five hundred and fifty-four acres. It is true that the Code, in chapter 29, section 37, directs each tract to be assessed separately; but section 37a allows an owner of contiguous tracts in the same district, by filing- a certain affidavit with the clerk, to have contiguous, adjoining- tracts charged as one. We presume that this was done, else the public officer would not have consolidated the two tracts. We presume that public officers conform to law until the contrary be shown; but, aside from that consideration, section 25, chapter 31, pointedly says that, “if more than one tract of land be charged as one,” the title to the land passes under the sale. Plainly, that statute cures that irregularity, if it were an irregularity.
The next objection to the tax deed is a more grave one. It consists in the fact that the affidavit to the sale list, as it appears in the County Clerk’s office, is defective, for the reasons that it is not signed by the sheriff, and merely makes the sheriff say, “I am not, directly or indirectly, interested in the purchase of any of said real estate,” whereas it should have stated that “I am not, nor have I at any time been, directly or indirectly interested in the purchase of any of said real estate.” This defect, if it in fact existed in the original affidavit, would vitiate the sale, because Hays v. Heatherly, 36 W. Va. 613, (15 S. E. 223,) and Jackson v. Kittle, 34 W. Va. 207, (12 S. E. 484,) and Baxter v Wade 39 W. Va. 281, (19 S. E. 404,) hold such a
I ask, again, does section 25 cure the said defect? As it
The attorney for the tax parchaser makes an able argument against the line of decisions in this Court construing statute requirements as to sales and curative provisions in them, contending that they do not carry out the design of the legislature in its legislation for many years past intended to sustain tax sales; and he particularly refers to McCallister v. Cottrille, 24 W. Va., 173, and other cases relating to the omission of the sheriff to file his report of sales within the time fixed by law, and he asks us to review those cases, saying that the consensus of the bar opinion is that they do not truly reflect the law. That may be so, but there are, at least, three decisions holding that that particular defect would overthrow a tax sale. As those decisions establish a rule of property, they would likely be intrenched and protected behind the rule of stare decisis, as expounded in Simpkins v. White, 43 W. Va., 125, (27 S. E. 361,) and Clarke v. Liggins, 27 W. Va., 663; but a review of those cases is unnecessary, because it is not claimed that defect exists in this case, and, if it were claimed, it would not be tenable, as the papers show that
Judge Lucas, in Jackson v. Kittle, 34 W. Va., 216 (12 S. E. 484) saw trouble from it in his way in deciding that case as he did, but concluded that it was not intended to operate in healing defects until after deed made under the sale. I, too, incline to that view. The section, as re-enacted in 1882, opens by declaring that, after deed made, the purchaser should be vested with certain estate, notwithstanding certain irregularities, and, further on, says that no irregularity, error or mistake in delinquent list, etc., “shall, after deed made, invalidate or affect the sale of deed”; and it is not likely that the last clause of the section was intended to go any further than to cure after deed. We would hardly say that, having declared that certain defects should not affect the sale after deed made, the draftsman would suddenly conclude to declare that the same, or some of the same, defects he had already provided for, and limited in effect, should have a further and different effect. If he did, he would have redrafted the whole section, and not have left in his draft the prior language giving cure to those defects only after deed. We must not assume this inconsistency, though the closing clause is later in position in the section. We must take all the provisions together, and, when we do, I think the intent was to say that after a landowner had let these defects stand, and not availed himself of them before deed made, and thus waived them, and allowed the purchaser to carry the sale into deed, he should not thereafter make use of them to avoid the deed. The word “sale” as well as “deed” is irnthat closing clause, it is true; but so it is in prior clauses. It was only used out of abundant caution to confirm both sale and deed standing on it, though the word “sale” was unnecessary, as, if the deed stand, so would the sale. As in this case the deed had been made,
The objection that the sale list in the column giving quantity sold gives the figures “100,” not saying whether poles or acres, is an untenable objection. The tract was assessed in acres, and the part of it sold would be taken to be acres.
Another objection is that the plat and description of the part of the five hundred and fifty-four acres of land that was sold do not show from what part of the tract the quantity sold was taken, nor the length and breadth thereof, nor whether any improved lands were taken in the one hundred acres sold, and do not show whether all of the one hundred acres was taken from the tract of five hundred and four acres, or whether any of it was taken from the fifty acres. Surely, there can be nothing in that objection. It will not be assumed until it is proven to the reverse that the surveyor included improved lands against the direction of the statute, or made it of improper dimensions. As we have shown that the two tracts could be assessed as a unit, it surely would not be necessary for the surveyor to specify out of which tract the one hundred acres was taken, or out of what particular portion of the whole tract the part sold was taken. The plat and description give bounds and certainty as to the part sold, and, as the statute cures even an unauthorized assessment of two tracts as one, no error could be predicated on the failure of the surveyor to show
Again, this suit was brought without payment or tender of what the purchaser paid, and the decree unconditionally annuls the tax deed without making any provision for payment thereof. Section 25 says that no deed under a tax sale shall be set aside for defects of record until tender or payment of what the purchaser paid, etc. I consider the decree erroneous on this ground. The sale was not an utter void or nullity, conferring no right on the purchaser to receive back his money. It is for mere irregularities in failing to do certain things directed to be done by the statute that the plaintiff seeks to annul the deed, — missteps under the statute; and it says that not even for those irregularities apparent of record, as they must be, not cured by the statute, shall a deed be set aside, until such tender or payment be made, no matter how bad the defect. There is no void sale under this clause; that is, so as to exempt the owner from such payment if he comes into equity to have relief by the cancellation of the deed. If he asks equity, he must do it under that clause.
The point is utterly untenable that the report of sales does not show that the sale was at the front door of the
Reversed.