37 W. Va. 762 | W. Va. | 1893
On the 15th day of October, 1890, George W. Yokum, commissioner of school lands for Randolph County, filed his petition in the Circuit Court of said county, asking for the sale of a tract of land containing eight thousand acres for
Said commissioner reported that said Fickey and Thomas tract of eight thousand acres was located on the Shavers fork of Cheat river in said county of Randolph, and was surveyed for said Fickey and Thomas on the 19th day of May, 1861; and that on the 22d day of April, 1867, the governor of this State issued a giant to said Fickey and Thomas for said tract of laud, which was duly recorded in said county on the 28th day of July, 1883; that said tract of land was entered upon the land books of said county for the year 1883, and assessed for taxes for said year, and has been so assessed ever since ; that said tract had never been assessed with taxes until the year 1883, and thereby became forfeited for the years commencing with 1868 and ending with 1882, and that the taxes and interest due thereon amounted to the sum of one thousand five hundred and seventy one dollars and seventy two cents on the 1st day of May, 1891; that said land became forfeited in the name of Fickey and Thomas in the year 1873, because of the failure of the said Fickey and Thomas to enter the same upon the land-books of Randolph county for the five successive previous years, and cause themselves to be charged with the taxes thereon, and pay the same ; that the greater part of said tract of eight thousand acres was covered by a large sui-vey known as the “ Henry Hanks survey of thirty six thousand acres,” which was surveyed for said Henry Banks on the 8th day of March, 1795, and that said survey of thirty six thousand acres was conveyed and passed regulaidy from said Banks down to the present owners or claimants, Dewing & Sons, who acquired their title from Ario Pardee
Said commissioner returned with said report the deposit tion of JB. M. Yeager and E. D. Talbott, and concluded his report as follows: “But should the Court be of the opinion from the evidence filed herewith that the said title of Piclcey & Thomas to the said eight thousand acres (which is in fact eight thousand seven hundred and fifty eight acres) has not so become vested and merged in the said title of the said Dewing and in the title of the said Nellie L. Maynard to the thirty six thousand acres and the twenty five thous- and acres respectively, then the said Eickey & Thomas have the right to redeem the same from the forfeiture aforesaid by the payment of the taxes, interest, and the costs of these proceedings; and the taxes and interest necessary to redeem the said land so asked to be redeemed by said Eickey & Thomas amount to the sum of one thousand five hundred and seventy one dollars and seventy three cents on the 1st day of May, 1891.”
To this report the defendants Eickey and Thomas, by their attorney, filed fifteen exceptions, and on the 4th day of May, 1891, the said Eickey and Thomas filed in open court the affidavit of said Eickey and Thomas in support of said exceptions, and moved court to recommit said report to Commissioner "Ward, or some other commissioner, with instructions to return with his report, as part thereof, all evidence produced before or considered by him in said proceeding; and the court, without then passing upon said exceptions, decreed that said report be recommitted to said Commissioner Ward, who was instructed to execute the order of reference made therein at October term, 1890, making Nellie L. Maynard by name a party to the notice
On the 6th day of December, 1891, said Frederick Fick-ey, Jr., and Edward L. Thomas, by their attorney, filed twelve exceptions to said last-named report, which exceptions are in the words and figures following: “(1) .Because it fails to report that at the time the title to said eight thous- and-acre tract of land was vested in the state Fickey and Thomas had good and valid legal title thereto, superior to any claimant thereof. (-2) Because it reports that the title of Fickey and Thomas became forfeited to the state. (8) Because it reports that the title of Bhckey and Thomas became forfeited to the state in the year 1878. If this title was ever forfeited at all, it was in the year 1875, under section 39, c. 117, Acts 1872-73, because not entered upon the commissioner’s books for five successive years after the year 1869. (4) Because it reports that at the time of the forfeiture thereof, in the year 1872, Benjamin "Rich and Ario Pardee, held an adverse legal title to seven thousand six hundred and sixty Wo acres of said land by reason of a deed dated 1872, from Jacob ITeavener, administrator tie bonis non with the will annexed of Henry 0. Middleton. (5) Because it reports that Nellie L. Maynard held an adverse legal title to one thousand and ninety six acres of said land by reasen of a deed dated 10th January, 1873, from Samuel A. Pugh. (6) Because it reports that James II. Dewing has title to one thousand and ninety six acres of land under deed from A. II. Winchester to him, dated 25th February, 1886. (7) Because it reports that said titles of James IT. Dewing and Nellie L. Maynard have both passed regularly to them, respectively, from the commonwealth of Virginia and the State of West Virginia. (8) Because it reports that the Banks survey of thirty six thousand acres was entered upon the land books of Randolph county, in the year 1881, in the name of Benjamin
On the 12th day of July, 1892, said cause was heard upon the petition of Commissioner George W. Yokum; upon the petition of said Fickey and Thomas; upon the report of Commissioner Ward, completed and filed in the clerk’s office on the 16th day of December, 1891, and upon.the exhibits, papers, and depositions returned with said report, and two petitions as part thereof; upon the twelve exceptions of Fickey and Thomas to said report, numbered consecutively from one to twelve, both inclusive, dated the 14th day of January, 1892 — upon consideration whereof the court decreed that the exceptions of Fickey and Thomas, numbered respectively, one, three, four, five, six, ten, eleven, and twelve, be, and the same were, sustained, and that their other four exceptions be, and the same were, overruled, and held that the said Fickey and Thomas are and were on the 16th day of October, 1890, entitled to redeem the whole of said eight thousand-acre tract of land mentioned in their
The first error assigned and relied on by the appellants is that the court erred in sustaining exceptions Nos. one, throe, four, five, six, ten, eleven, and twelve, to Commissioner Ward’s report, filed on the 16th day of December, 1891.
In considering the questions raised by these exceptions we will examine first said exception No. 1, which raises the question directly whether at the time the title to said eight thousand acres of land was vested in the State said Fickey and Thomas had a good and valid legal title thereto, superior to any claimant thereof. This question is material in determining the right of said Fickey and Thomas to redeem said land, for the reason that our- statute (Code 1887, c. 105, § 14) provides that “any owner may within the time aforesaid (meaning two years) file his petition in- the said Circuit Court, stating his title to such lands, accompanied with the evidences thereof; and upon full and satisfactory proof that at the time the title to said lands vested in the State he had a good and valid title thereto, legal or equitable, superior to any other claimant thereof, such court shall or-
Had Fickey and Thomas, at the time the title to said land vested in the State, a good and valid title thereto, legal or equitable, superior to any other claimant thereof? It appears that on the 19th day of May, 1861, the surveyor of Randolph county surveyed for Fred Fickey, Jr., and Edward L. Thomas, by virtue of laud office treasury warrant No.-, a tract of land in Randolph county, on Cheat mountain, containing about eight thousand acres. This entry was not carried into grant by reason of the war, but section 1 of article 9 of the constitution of 1863 provides that “all rights and interests in lands in this State, derived from or under the laws of the State of Virginia prior to the time this constitution goes into operation, shall remain valid and secure, and shall be determined by the laws heretofore in force in the State of Virginia.” The right to redeem this eight thousand-acre tract of land by Fickey and Thomas is contested by Dewing & Sons, or James S. Dew-ing, who claims to hold the same for Dewing & Sons by regular conveyance from Henry Banks, to whom the thirty six thousand-acre tract, which includes the greater portion of said eight thousand-acre survey, the residue of which is covered by what is known in the record as the “Standish Ford Survey,” was patented by the Commonwealth of Virginia in 1795.
The consecutive conveyances from Ilenry Banks to James S. Dewing appear as a part of the commissioner’s report. Seven thousand six hundred and sixty two acres of the land claimed by Fickey and Thomas lie within the calls of the
It appears that, although said thirty six thousand-acre tract was conveyed to Middleton in 1841, he never caused it to be entered on the land books until 1866, a period of twenty five years having elapsed between the date of his deed and such entry upon the commissioner’s books; and even then he failed to charge it with back taxes for any year prior thereto.
In the case of Smith v. Tharp, 17 W. Va. 231, Green, P., in delivering the opinion of the Court, refers to the requirements of the statute with reference to placing lands upon the edmmisfioner’s books, and says: “The act of February 27, 1835 (see Sess. Acts 1834-35, p. 12, c. 13, § 2) expressly provides ‘that every owner of a tract of land shall, on or before July 1, 1836, enter, on the books of the commissioners of the county wherein such tract of land lies, such tract of land, and have it charged with all taxes and damages in arrear, and actually pay the same; and, upon his failure to do so, such tract of land, if not then, February 27th, 1835, in actual possession of the owner, should become forfeited to the State after July 1st, 1836.’ The time for making this entry of omitted lands, when they had not been omitted since 1831, was extended by the act of March 23, 1836, to November 1, 1836 See Sess. Acts 1835-36, p. 7, c. 3, § 1. Neither the possession of the land nor the entry of it on the commissioner’s books, after the land became, under those acts,
AlleN, President, delivering the opinion of the Court in the-case of Usher’s Heirs v. Pride, 15 Gratt. 199, says: “The forfeiture of such lands returned as delinquent became complete on theTst of October, 1834. The subsequent acts treated them not as lands returned delinquent merely, but as lands forfeited; and, although further time to redeem was given, the forfeitures which had accrued by prior laws were not released except in such cases where the owner availed himself of the privilege to redeem.”
See the case of Staats v. Board, 10 Gratt. 400, Syll. p’t which holds, that “the act of March 30, 1837 (Sess. Acts, p. 9j giving time for redemption until the 15th of January, 1838, did noj.release the forfeiture which had accrued, except in cases where the owner or proprietor availed himself of the privilege of redemption;” and point 3 of syllabus: “The forfeiture in such ease became absolute and complete by the failure to enter and pay the taxes due on the land, and the damages, in the manner prescribed by the act of February, 27, 1835, and no inquisition or judicial proceeding or inquest or finding of any kind was required to consummate such forfeiture.”
The land in the case under consideration never having been redeemed by Middleton, the mere fact that it was entered in the year 1866 upon the commissioner’s books, from which it lr'ad been omitted for twenty five years, did not relieve the land from forfeiture. The title, by reason of the forfeiture, was vested in the state of Virginia by reason of the failure to place said land upon the commissioner’s books, and appears to have been so vested in 1861, and was subject to entry at the time the same was surveyed for Fickey and Thomas; and the same may be said with reference to the one thousand and ninety six acres, which lie without the Banks thirty six thousand acre survey, and are included in the Staudish Ford twenty five thousand acre survey.
This land appears to have been placed on the commissioner’s books for the years 1805 and 1807, but was returned delinquent for the nonpayment of taxes, and was
It is, however, claimed that the title of Fickey and Thomas was transferred to Dewing by virtue of section 3 of article 13 of the constitution of 1872, which was carried into and made part of our statute, and is found in section 40 of chapter 31 of the Code of 1887. Under this law, “all title to- lands in this state heretofore forfeited or treated as forfeited, waste and unappropriated, escheated, and irredeemable lauds, may be transferred (in all cases, excluding those for whose default the land was forfeited or returned delinquent, their heirs or devisees) — First, to any person, for so much thereof as such person has or shall have had actual continuous possession of under color or claim of title for ten year's, and who, or those under whom he claims, shall have paid the state taxes thereon for’ any five years during such possession; second, or, if there be no such person, then to any person for so much of said land as such person shall have title or claim to, regularly derived, mediately or immediately, from or under a grant from the commonwealth of Virginia or of this State, not forfeited, which, but for the title forfeited, would be valid, and who, or those under whom he claims, has or shall have paid all state taxes charged or chargeable thereon for live successive years after the 1865 ; third, or if there be no such person as aforesaid, then to any person for so much of said land as such person shall have had claim to, and actual continuous pos
Under the evidence adduced before the commissioner, can we say that Dewing can maintain his claim to the forfeited title of Fickey and Thomas by transfer from the State? In order that he should sustain this position under the first clause, it was necessary that said Dewing should have had actual continuous possession of the land under color or claim of title for ten years, and that he, or those under whom he claims, should have paid the taxes thereon for any five years during such possession. Now, the character of the possession, as shown before the commissioner, was not such as would entitle said Dewing to such transfer under said first clause.
A. H. Winchester says in his deposition that “on the 6th day of November, 1885 — the second day after the deed from Ario Pardee and Rich to me for the Banks survey of thirty six thousand acres — I commenced lumbering on the Fickey and Thomas eight thousand-acre survey, and continued to lumber thereon until June, 1887. After that date the lumbering was done by George Steele, foreman for Dewing & Sons, for a year or so afterwards.” About June, 1886, Winchester also states that he inclosed about two acres of the Fickey and Thomas land with a log fence, and sowed the parcel in grass. This evidence shows the only posséssion taken by Dewing, or those under whom he claims, of the Fickey and Thomas land.
That cutting of timber and temporary and interrupted occupancy of this character do not constitute actual possession was held by this Court in the case of Core v. Faupel, 24 W. Va. 246, when Snyder, J., in delivering the opinion of the Court, said: “The test, then, of the exclusive possession is the existence or nonexistence of actual possession. If the owner is in possession of any part of the tract, he is in possession of the whole, and, of course, the intruder can not then have the exclusive possession of any part of it, unless by his pedis positio he effects an ouster of the owner; and even then his possession will be confined to his actual inclosure from which he has expelled the
Again, in the case of Oney v. Clendenin, 28 W. Va. 35, fourth point of syllabus, this Court held : “Adversary possession, to effect an ouster of the owner of land, must be open, visible, and exclusive, as well as continuous and uninterrupted, and must be under either claim or color of title. If under claim of title only, the claimant must have actual possession of the land by inclosing under fence, or by clearing it, or in some other visible and notorious manner; and the merely cutting and removing timber from time to time from the land under claim of title will not constitute adversary possession.” p- See, also, the case of Pasley v. English, 5 Graft. 141, where it is held that “a temporally possession of land by cutting and sawing timber upon it is not such adversary possession as will give title.”
So far, then, as the evidence tends to show possession of said eight thousand-acre tract of land by lumbering and cutting timber, which was interrupted and occasional, we can not regard it as the character of possession which would confer title by transfer either under the first or under the third class of persons mentioned iu the constitution, because said Dewing had no actual, continuous possession of the same, or any part thereof, for ten years; neither has his possession been of that character for five years which is required under the third class.
If it be conceded that the fence built by Winchester, which included about two acres of the eight thousand-acre tract, although the buildings and the greater portion of the inclosure were outside of the eight thousand-acre, constituted actual adversary possession of the eight thousand-acre tract which would be of the character to eventually work a transfer, yet, said inclosure having been constructed only four years and three months prior to the time of redemption, the time would be too short to constitute a transfer under the third class, so that neither the inclosure nor
Said Dewing can not hold the title to said land by transfer under the second class of persons designated in the constitution, for the reason that he claims under the Banks patent, which, as we have seen, was forfeited years before he obtained his deed; and, in order to be entitled to transfer of title under that class, he must claim under a grant from the commonwealth of Virginia or this State, not forfeited, which, but for the title forfeited, would be valid; that is, under a grant in this case not forfeited, and which, but for the Banks title, would be valid.
For these reasous we are of opinion that the.Circuit Court committed no error in sustaining exceptions numbered respectively 1, 3, 4, 5, 6, 10, and 11, filed by said Fickey and Thomas to the report of Commissioner Ward, filed December 6, 1891, and also in sustaining exception No. 12 to the same, for the reason that it relates to a matter of costs, which this Court will not review. Neither do we regard the action of the court in holding that said Fickey and Thomas were, on the 16th day of October, 1890,. entitled to redeem said eight thousand-acre tract of land mentioned in their petitioii, and granted to them by the State of West Virginia by patent dated the 22d day of April, 1867, as erroneous.
The decree complained of is therefore affirmed, with costs and damages,- and the cause is remanded for further proceedings, which it is thought proper to say must conform to the statute recently passed by the legislature at its session in 1893, and which took effect from its passage.
Aeeirmed. Demanded.