89 W. Va. 670 | W. Va. | 1921
The plaintiff by this appeal seeks reversal of a decree of the circuit court of Kanawha county sustaining a demurrer to and dismissing his hill brought- to set aside a tax deed.
It appears that in the year 1915 the plaintiff was the owner of the oil and gas under a tract of 153-1/3 acres of land situate in said county of Kanawha, and that the same was assessed to him upon the land books separately from the surface and other interests in the land. The taxes thereon were not paid for that year, and the sheriff returned the same delinquent therefor, and in December, 1917, said taxes still remaining unpaid, the same was sold by the sheriff, and purchased by the defendant P. C. Kuhn. The plaintiff did not redeem said land from the delinquency within the time required by law, and after the expiration of such time a deed was made to the defendant by the clerk of the county court conveying said oil and gas interests, and this suit is brought for the purpose of setting aside that deed.
Many grounds are set up in the bill which it is alleged make the deed invalid, and require that the same should be set aside, and the plaintiff allowed to redeem his land from the delinquency for which it was sold. The first of such
The second and third grounds alleged against the tax deed may be treated together. It is "asserted that the clerk of the county court did not correct the land book deposited by the assessor in his office for the year 1915 as required by § 116 of ch. 29 of the Code, nor did said clerk correct the additions, proofs and recapitulations therein as required by said section; and further that no copy of the land book was filed by the assessor in the office of the clerk of the county court on or before the 20th of July, 1915, as required by § 118 of said ch. 29, for either, or both, of which reasons said assessment does not furnish the basis for a valid tax deed. Section 25 of ch. 31 of the Code provides that the title of the former owner will vest in the purchaser at a tax sale, notwithstanding any irregularity in the proceedings, unless such irregularity appear on the face thereof, and be such, as materially to prejudice and mislead the owner of the real estate. While it may be said that these facts appear from the record, there is nothing to indicate that the owner would have been prejudiced or misled in any way thereby. Admittedly the estate owned by him was subject to taxation, and he does not question the propriety of the assessment made against it by the assessor. How then can it be said that he was prejudiced or misled by the failure of the assessor to return the land book within the time provided by the statute, or the failure of the clerk of the county court to check it over and correct it for errors found, when it is not even suggested that there is any error so far as this assessment is concerned? In Male v. Moore, 70 W. Va. 448
It is next asserted that the tax deed is invalid for the reason that it does not appear' from the record in the county clerk’s office that the delinquent list was ever allowed by the county court, or that the county court ever directed the clerk to certify the same to the auditor, or that the clerk did in fact ever certify the same to the auditor; and further, that the said tax deed is invalid because there is no affidavit of the sheriff appended to the said delinquent list, as required by law. As a basis for these contentions, it is asserted that the delinquent list recorded in the county clerk’s office shows the lands delinquent for the nonpayment of ‘ taxes 'covering several pages of the delinquent record book, following which is a list of lands improperly entered
It is also contended, that the tax deed is invalid because the certificate appended to the list recorded in the delinquent land book does not show that it was the same list that was presented to the county court and allowed by it. There is no merit in this contention. The list itself purports to be a list of land returned delinquent for the nonpayment of taxes thereon, and the sheriff makes the affidavit thereto as required by law. The county court’s order shows that such a list was presented to it. This sufficiently indicates that the list recorded in the book is the list passed upon by the county court. The county court’s order is appended to the list actually recorded, and shows that it was presented to it and allowed, and the clerk’s certificate shows that the foregoing list, which necessarily refers to the list to which the
It is next insisted that no notice of sale was ever given by the sheriff, and this is based upon the fact that this oil and gas interest was advertised to be sold under the heading of “tracts or lots of land.” What we have heretofore said sufficiently disposes of this contention.
It is next alleged upon information and belief that no sale of the said oil and gas interest, or of any interest whatever, located in the said county of Kanawha, was ever made by the sheriff of said county for the delinquent taxes thereon for the year 1915, and that no return of sales of such lands with the certificate of oath required by law was made by such sheriff, and that no affidavit whatsover was made to the list of lands purported to have been sold in said county for the nonpayment of taxes for said year 1915, for which reasons it is contended the clerk was without authority to make the tax deed complained of. It is a little difficult to understand this allegation of the bill. It is asserted therein that no sales were made by said sheriff, and to support this allegation an affidavit is exhibited which it is said is attached to a purported list of sales. The list itself is not exhibited with the bill, so that we are not informed as to what it shows, but the affidavit made to the list which is exhibited with the bill is in the form required by law, and states that it contains a true account of all real estate within the county which had been sold to, individuals, together with the names of the purchasers who purchased the same; and further, the sheriff swears that he was not interested at said time, or at any time, directly or indirectly, in the purchase of said real estate. It is averred that this affidavit- is attached to what
It appears in this case that after the defendant gave notice that he would demand a deed for the oil and gas interest purchased by him, he had the county surveyor make a report of the tract of oil and gas belonging to the plaintiff which he had purchased at the tax sale, and that pursuant to this notice, and this report, the clerk attempted to make' a deed conveying the same to the defendant, but by inadvertence failed to affix a seal thereto. This purported deed without the seal was duly recorded. A short time thereafter the defendant, discovering that there was no seal affixed to the purported deed, had the clerk affix a seal to his signature, reaeknowledge the deed, and had it again recorded. It is contended• that the first deed without the clerk’s seal was void, and that what is called the second deed was made by the clerk without any notice having been given as required by law, and without any report of the county surveyor as the law provides, and that it does not show upon its face that it is a deed of correction. It sufficiently appears from what we have said that there was really but one deed executed. When the deed was first delivered by the clerk it was improperly executed in that he had omitted' to affix his seal thereto. The execution of the deed was thereafter completed by the clerk affixing his seal after his signature and reacknowledging the deed. There are not two deeds. If the deed as first executed was good without the seal of the clerk, then it was sufficient to vest the title of the plaintiff in the defendant. If the paper as executed by the clerk was void, as the plaintiff contends, and as the defendant tacitly admits, for lack of a seal, then it was not a deed, and it was the duty of the clerk to complete its execution so as to make it conform to the requirements of the law. There was no necessity for giving another notice or for hav
It is also insisted that the tax deed is void because the defendant did not file, or cause to be filed, with the clerk of the county court of Kanawha county, a survey or report required by law within the time required by the statute. It appears that this sale was made on the 3d day of December, 1917, and the report of the surveyor was filed with the clerk of the county court on the 18th of March, 1919. The statute, § 19 of ch. 31, provides: “But before such purchaser, his. heir, devisee or assignee shall be entitled to such deed he shall, within three months, after the expiration of the said one year from the day of sale and between that day and two years after the day of sale by the sheriff, file, or cause to be filed with the clerk of the county court of the county in which the real estate was sold, or lies, the survey or report mentioned in the seventeenth and eighteenth sections of this chapter.” This language, it is true, is a little confusing, but it is clear that the meaning is that the report shall be filed at any time after three months from the expiration of one year from the day of sale and before two years from said day. In other words, the filing of the report must be made before the expiration of two years from the day of sale. The record here shows that the report was filed immediately upon the expiration of the three months’ period provided for in the statute, and before the expiration of two-years from the day of sale, so that there is nothing in this contention.
It is also contended that the deed is void and should be set aside for the reason that no survey was made, but only a report made by the surveyor. Section 18 of ch. 31- does not require a survey to be made where the tax purchase is of the whole of the tract of land sold, as was the case here.
It is also objected to the validity of the deed that the same purports to convey the whole of the estate in the tract of land described instead of simply the oil and gas. The deed is not subject to this criticism, even if that would be effective to render it invalid. The deed recites that the defendant became the purchaser of the oil and gas in that certain tract
It is further insisted that the deed is void because it appears that there were no taxes delinquent upon this oil and gas interest, and this, it is said, is shown by the fact that the certifícate given by the sheriff to the purchaser at the sale does not set out the amount of the taxes for each separate purpose due and unpaid, but simply gives the total as $15.45. This can make no difference, inasmuch as the failure to give this receipt to the purchaser would not affect the validity of the sale. Any defect in this, or any failure in this regard, would be clearly cured by the provisions of § 25 of ch. 31 of the Code.
We have carefully gone over all of the objections raised by the plaintiff to the validity of this tax deed, and we are of the opinion that none of them are of such character as to render it invalid, and that the court below properly sustained the demurrer to the bill. The decree complained of is therefore affirmed.
Affirmed.