Opinion
02-13-1869
DOWNEY v. NUTT.
Willoughby, for the appellant. F. L. Smith and Ould & Carrington, for the appellee.
The principles decided in the cases of Martin v. Snowden, trustee, Bennett v. Hunter, and Portner & Recker v. Cazenove, 18 Gratt. 100, and in Turner v. Smith, & c., Id. 830, reaffirmed and acted on.
This was an action of ejectment in the Circuit court of the county of Alexandria, brought in March 1867, by William D. Nutt against James M. Downey, to recover a tract of one hundred and eighty acres of land lying in that county, and called Parm-Will-Alice. The defendant appeared and pleaded the general issue, and the parties agreed the facts, and waiving a jury, further agreed that the suit might be decided by the court.
It appears that until the sale of the land by the tax commissioners, the plaintiff was seized in fee of the land. That the board of tax commissioners, acting under the acts of Congress of the 7th of June 1862, entitled " An act for the collection of direct taxes in insurrectionary districts within the United States, and for other purposes," fixed the amount of tax charged upon said land under the acts of Congress at seventeen dollars and one cent; penalty eight dollars and fifty-one cents; and fifteen per cent. damages. That the taxes charged upon said land were not paid within sixty days from the time the amount of said tax was fixed by the commissioners, as provided for in the third section of said act of Congress of June 7th, 1862, and that thereupon the said board of commissioners caused the said land to be duly advertised to be sold at Alexandria, Virginia, on the 29th of February 1864. That pursuant to said notice the said board caused the said land to be sold in accordance with the provisions of said acts of Congress to F. H. Pierpoint, as the highest bidder, at the sum of twenty-four hundred dollars. That the said sale was made without the knowledge or consent of the said Wm. D. Nutt, the plaintiff. That Pierpoint transferred the said purchase to the defendant Downey, to whom the commissioners issued a certificate. The certificate is set out, and is in the usual form; and states that the tract of land was charged to the plaintiff Nutt on the land book of the State of Virginia for the year 1860, and valued on said book at $6,300; and was struck off to the purchaser at $2,400. That this is the land sued for in this action; that it is valued on the commissioners' books for the county of Alexandria for the year 1860, at the sum of $6,300; that at the time of the sale and at the time of the trial it was worth twenty dollars per acre; is easily susceptible of division into smaller tracts, and contains one hundred and eighty acres. And that the plaintiff has not conveyed away or parted with said land, or any part thereof, nor is his title thereto in any wise affected unless by and under the tax sale above mentioned.
Upon this statement of the facts the Circuit court rendered a judgment for the plaintiff; which, upon a supersedeas to the District Court of Appeals at Fredericksburg, was affirmed. And then Downey applied to a judge of this court for a supersedeas; which was awarded.
Willoughby, for the appellant.
F. L. Smith and Ould & Carrington, for the appellee.
MONCURE, P., delivered the judgment of the court:
The court is of opinion that for reasons stated in the cases of Martin v. Snowden, trustee, Bennett v. Hunter, Portner & Recker v. Cazenove, 18 Gratt. 100; and Turner v. Smith, & c., Id. 830, which rule this case, there is no error in the said judgment. Therefore, it is considered that the same be affirmed, and that the defendant recover of the plaintiff thirty dollars damages, and also his costs by him about his defence in this behalf expended; which is ordered to be certified, & c.
RIVES, J., dissented.
JUDGMENT AFFIRMED.