Opinion
10-19-1825
Rockbold v. Barnes. [*] the Rockbold v. Dyar
Scott, for the appellant, Hay, for the appellee
These were two appeals from the Superior Court of Wood county. The cases are precisely similar in their circumstances, and depend upon the same question. They were two writs of right brought by Rockbold, who claimed two tracts of land, which had been sold by Thomas Tavenner as deputy of J. Spencer, high sheriff of Wood county, for non-payment of taxes. Deeds were executed by Tavenner to Rockbold, who became the purchaser at the sale. These deeds recite that Tavenner is deputy sheriff of J. Spencer, sheriff of Wood county, and signed by Tavenner in the same manner. At the trial, the tenants moved the Court to instruct the jury, that the deeds produced were not, of themselves, sufficient evidence of title in the demandant to enable him to recover. The Court gave the instruction, and the jury found for the tenants. Judgment was given accordingly, and Rockbold appealed.
Judgment affirmed.
Scott, for the appellant, contended, that the deputy was competent to execute the deeds, as it was merely a ministerial act. Wroe v. WashingtonWash. (VA) 126; 6 Bac. Abr. " Sheriff," 154-5; Acts of 1814, § 20, 24, 25.
Hay, for the appellee, admitted that the deputy might execute the deeds in this case, but said that they were void for uncertainty in the description of the land, and that there must be some evidence that the person professing to be deputy, was so in fact.
OPINION
Green, Judge
These two cases are precisely the same in all their circumstances. The demandant claimed the land in controversy, under a patent to Abraham Thomas. The patent is set out in the first bill of exceptions, and it is therein stated, that the patent is for the land in controversy. He also introduced a deed from Abraham Thomas to Michael Thomas; and a deed dated August 16, 1815, from Thomas Tavenner, professing to be deputy sheriff for J. S. Spencer, sheriff of Wood county, to the demandant, reciting that he had sold a tract of land belonging to Michael Thomas, returned delinquent in the name of Michael Thomas, for the non-payment of taxes, for several years; and that the demandant was the purchaser thereof; and conveying to him a tract of land of 400 acres in Wood county so sold, being a tract of land late the property of Michael Thomas, and sold as aforesaid for delinquency of taxes. The tenant moved the Court to instruct the jury, whether the last-mentioned indenture, with the deeds mentioned in the first bill of exceptions, was sufficient evidence of title in the demandant, to enable him to recover in this cause. The Court being of opinion, that the lastmentioned deed was not, of itself, sufficient evidence of the transfer of the land in controversy, from Michael Thomas, jr. to the demandant, instructed the jury accordingly; to which, the demandant excepted, and the jury found for the tenant. The only question in the cause, is, whether this intruction was right.
It was indispensably necessary, in order to give the effect to this deed of transferring the title of Michael Thomas to the demandant, that J. Spencer should have been sheriff of Wood county, and Thomas Tavenner his deputy, at the time that the advertisement and sale were made; and without proof of those facts, the deed was not, of itself, sufficient evidence, that the title of Michael Thomas was vested in the demandant. The instruction was, therefore, right, and the judgments are respectively to be affirmed.
The other Judges [*] concurred, and the judgment was affirmed.
TAXATION.
I. The Taxing Power.
A. Of the Legislature.
1. In General.
2. Tax on Office of Sheriff.
3. Tax for Inspection by Pilot.
4. Dispensary Law Does Not Impose Tax.
5. Road Law as Capitation Tax.
6. Taxing State Bonds.
7. Separate Assessments for Public Free Schools.
8. Validity of Federal Tax--Res Adjudicata.
B. Of Municipal Bodies.
1. In General.
2. County Taxation of Railroads.
3. Special Meetings of Supervisors.
4. Levy to Pay Orders for Former Years.
5. Magisterial Districts in West Virginia.
6. Aiding Internal Improvement Company.
7. To Build School Houses.
8. Extending Town Limits.
9. Existence of County a Political Question.
10. Local Assessments.
11. District School Taxes--Vote on Time of Session.
12. Limit of Taxation--What Taxes Counted.
II. Assessment and Levy.
A. Of Lands.
1. In General.
2. Notice Required.
3. Duty to Enter Land for Taxation.
4. In What Name Assessed.
5. Effect of Assessment to Former Owner.
6. Several Tracts as One.
7. After Delinquency and Sale, or Forfeiture.
8. Mistake in Name.
9. Separate Interest Separately Assessed.
10. Ground Rents.
11. Reinstating Omitted Lands.
B. Of Personal Property.
1. In General.
2. Shares of Stock.
3. Toll Bridges and Ferries.
4. Bank Stock.
5. Insurance and Express Companies--Premiums--Validity.
6. Building and Loan Associations.
C. Circuit Courts Reviewing Action--Administrative.
III. Correcting Assessments.
A. Jurisdiction to Correct.
B. Railroad Companies Included.
C. Equitable Relief from Assessment.
IV. Licenses.
A. Uniformity and Equality Required.
B. Strict Construction.
C. Legislative Discretion.
D. Commissioners of Revenue--Assistant.
E. Double Taxation.
F. On Particular Pursuits.
G. City's Right to Tax Licenses.
V. Succession Taxes.
VI. Situs for Taxation.
VII. Lien for Taxes.
VIII. Exemptions.
A. Power Generally.
B. Exemptions Usually Not Contracts.
C. Particular Exemptions.
D. Repeal of Exemption.
IX. Collection of Taxes.
A. In General.
B. Enjoining Illegal Taxes.
C. Payment of and Liability for Taxes.
D. Liability of Collector.
E. Forfeiture.
1. In General.
2. For Nonentry on Land Books.
3. For Delinquency--Compared with " Omitted Lands."
4. Constitutionality.
5. Power of Congress to Forfeit Lands.
6. Patents for Forfeited Lands.
7. Title by Enurement on Forfeiture.
8. Sale of Forfeited Lands.
9. Evidence of Forfeiture.
F. Sale of Delinquent Lands.
1. Power of Sale.
2. For Federal Taxes.
3. Proceeding in Wrong Court--Sale Void.
4. Decree of Sale.
5. Place of Sale.
6. Adjournment of Sale.
7. By Whom Made.
8. Force of Sale.
9. Disproportionately Small Price--Effect.
10. Surveyor's Report and Plat.
11. Commissioner of Delinquent and Forfeited Land.
12. The Delinquent List.
13. List of Sales.
14. Regularity of Sale--Burden of Proof.
15. Curative Statutes.
16. Sale of Lands Acquired by State.
a. In Virginia.
b. In West Virginia.
17. Persons Disqualified to Buy.
G. Right of Redemption.
1. Nature of Remedy.
2. Who May Redeem.
3. When Redemption Allowed.
4. How Redemption Made.
5. Redemption of Part Only.
6. Of Forfeited Lands.
7. Unaffected by Second Tax Deed.
8. Owner's Rights before Redemption.
9. Evidence--Auditor's Receipt.
H. The Tax Deed and Its Validity.
1. Force and Effect.
2. Court's Jurisdiction to Order Deed to Issue.
3. Legislative Power to Authorize Another Deed.
4. The Execution.
5. Equitable Jurisdiction to Set Aside Illegal Tax Deed.
X. Taxes Exempt from Execution against Municipalities.
Cross References to Monographic Notes.
Adverse Possession, appended to Nowlin v. Reynolds, 25 Gratt. 137.
Agencies, appended to Silliman v. Fredericksburg, etc., R. R. Co., 27 Gratt. 119.
Assumpsit, appended to Kennaird v. Jones, 9 Gratt. 183.
Banks and Banking, appended to Bank v. Marshall, 25 Gratt. 378.
Charities, appended to Kelly v. Love, 20 Gratt. 124.
Church Property, appended to Brooke v. Shacklett, 13 Gratt. 301.
Constitutional Law, appended to Commonwealth v. Adcock, 8 Gratt. 661.
Corporations, appended to Slaughter v. Commonwealth, 13 Gratt. 767.
Deeds, appended to Fiott v. Commonwealth, 12 Gratt. 564.
Ejectment, appended to Tapscott v. Cobbs, 11 Gratt. 172.
Eminent Domain, appended to James River & Kan. Co. v. Thompson & Teays, 3 Gratt. 270.
Executors and Administrators, appended to Rosser v. Depriest, 5 Gratt. 6.
Indictments, Informations and Presentments, appended to Boyle v. Commonwealth, 14 Gratt. 674.
Infants, appended to Caperton v. Gregory, 11 Gratt. 505.
Injunctions, appended to Claytor v. Anthony, 15 Gratt. 518.
Intoxicating Liquors, appended to Thon v. Commonwealth, 31 Gratt. 887.
Joint Tenants and Tenants in Common, appended to Ambler v. Wyld, Wythe 235.
Jurisdiction, appended to Phippen v. Durham, 8 Gratt. 457.
Juries, appended to Chahoon v. Commonwealth, 20 Gratt. 733.
Mandamus, appended to Dawson v. ThrustonHen. & M. 132.
Municipal Corporations, appended to Danville v. Pace, 25 Gratt. 1.
Municipal, County and State Bonds, appended to DeVoss v. City of Richmond, 18 Gratt. 338.
Official Bonds, appended to Sangster v. Commonwealth, 17 Gratt. 124.
Oysters, appended to Power v. Tazewells, 25 Gratt. 786.
Removal of Causes, appended to Brown v. Crippin, 4 Hen. & M. 173.
Set Off, Recoupment and Counterclaim, appended to Anderson v. Bullock, 4 Munf. 442.
Sheriffs and Constables, appended to Goode v. Galt, 1 Gilmer 152.
Stock and Stockholders, appended to Osborne v. Osborne, 24 Gratt. 392.
Tender, appended to Shobe v. Carr, 3 Munf. 10.
I. THE TAXING POWER.
A. OF THE LEGISLATURE.
1. In General. --The legislative authority of the general assembly for the purposes of taxation is limited only by the bill of rights, federal constitution and the constitution of Virginia, and it has full power within such limits to confer authority on county courts, city councils, corporations and other organized bodies to impose local taxation for local purposes and no change was made in such power by the constitution of 1851. Gilkeson v. Frederick Justices, 13 Gratt. 577; Ould v. Richmond, 23 Gratt. 464; Powell v. Parkersburg, 28 W.Va. 698; Neale v. County Court, 43 W.Va. 90, 27 S.E. 370; Case of the County Levy, 5 Call 139; Bull v. Read, 13 Gratt. 78, where it is said there is no distinction between the local municipal purposes for which the power of taxation has been held to be duly delegated, and the support of a district or county free school system, the board of commissioners being a purely local authority. See Schoolfield v. Lynchburg, 78 Va. 366; Richmond v. Daniel, 14 Gratt. 385.
The power of taxing the people and their property is essential to the very existence of government, and may be legitimately exercised on the objects to which it is applicable, to the utmost extent to which the government may choose to carry it. The only security against its abuse is the structure of the government itself. The influence of the constituents over their representative is the safeguard against its abuse. Ould v. Richmond, 23 Gratt. 464; Com. v. Moore & Goodsons, 25 Gratt. 951; Langhorne v. Robinson, 20 Gratt. 661; Davis v. Lynchburg, 84 Va. 861. 6 S.E. 230.
Legislation Necessary. --Property can be taxed only in the mode prescribed by law, and it is the duty of the legislature to pass the necessary laws to carry into effect the constitutional provision relating to taxation, but, in the absence of any legislative enactment on the subject, property cannot be taxed at all. Supervisors v. Tallant, 96 Va. 723, 32 S.E. 479; Willis v. Com., 97 Va. 667, 34 S.E. 460.
For the constitution prescribes what property is to be taxed, and the legislature prescribes the manner in which it shall be taxed, which mode of taxation shall be equal and uniform as to all classes of property, and the tax upon all business of the same class, which is uniform as to that kind of business, is not unconstitutional. Charleston & S. Bridge Co. v. Kanawha County Ct., 41 W.Va. 658, 24 S.E. 1002.
The charter of an express company reserving to the general assembly the power to modify or repeal the charter, this was effectually done by an act for the assessment of taxes, and the same was not, violative of § 16, art. 4 of the Constitution. Anderson v. Com., 18 Gratt. 295. See monographic note on " Stock and Stockholders" appended to Osborne v. Osborne, 24 Gratt. 392.
State's Object. --The object of the state is to collect from every one who claims title to land, the taxes thereon, at a fair cash valuation, and if claimants of hostile titles would protect same, they must pay the taxes thereon. State v. Low, 46 W.Va. 451, 33 S.E. 271.
Uniformity Required. --The legislature may prescribe the method of valuation on any class of property, and if the value of the same class of property be ascertained in the same manner throughout the state, its constitutionality cannot be questioned on the score of lack of uniformity or inequality. Charleston, etc., Bridge Co. v. Kanawha County Court, 41 W.Va. 658, 24 S.E. 1002.
Construction. --Statutes which levy duties or taxes upon citizens are to be construed most strongly against the government and in favor of the citizen, and their provisions will not be extended, by implication, beyond the clear import of the language used. Supervisors v. Tallant, 96 Va. 723, 32 S.E. 479; Combined Saw, etc., Co. v. Flournoy, 88 Va. 1029, 14 S.E. 976; Brown v. Com., 91 Va. 762, 21 S.E. 357; Brown v. Com., 98 Va. 366, 36 S.E. 485.
But by the constitution of 1869, counties and corporate bodies are expressly included in this provision. See § 1, art. 10; Va., etc., R. Co. v. Washington Co., 30 Gratt. 471. Sections 22, 23, and 25 of art. 4, of the Constitution of Virginia (1860), providing that taxation shall be equal and uniform throughout the commonwealth, and that property, the income from which is taxed, shall not be itself taxed, and that that all property shall be taxed, in proportion to its value, relates to taxation by the general assembly, to raise the revenues of the commonwealth, at large, and not to taxes, levies, etc., by counties and municipal corporations for the local purposes of such bodies. Gilkeson v. Frederick Justices, 13 Gratt. 577; Douglas v. Harrisville, 9 W.Va. 162; Powell v. Parkersburg, 28 W.Va. 698; Norfolk City v. Ellis, 26 Gratt. 224.
The fair construction of § 1, art. 10, of the present Constitution (1869), is, that taxation on all subjects, whether property or other subjects, except as hereinafter provided, shall be equal and uniform, and property, which is subject to the foregoing requirement of equality and uniformity, with all other subjects which are not excepted, is also to be taxed according to the ad valorem principle. The only exceptions which are thereinafter provided are contained in § § 4, 5--the former, in relation to incomes and licenses, and the latter, to a capitation tax. The licenses are enumerated, and then it is added, " all other business which cannot be reached by the ad valorem system." Peters v. Lynchburg, 76 Va. 927.
The legislature must, in the nature of things, have a very large discretion in determining the question as to what business can be reached by the ad valorem system, within the meaning of the constitution, (1869, § 4, art. 10). The subject is indefinite in its nature, and although the instances enumerated in the constitution afford material aid in ascertaining the meaning of its framers in the use of the general words which follow the enumeration, still much room is necessarily left for the exercise of legislative discretion in the matter. Commonwealth v. Moore, 25 Gratt. 951; Lewellen v. Lockharts, 21 Gratt. 570; Hirsh v. Com., 21 Gratt. 785. See post, " Licenses."
Court's Power of Supervision.--If the mode of assessment is regular and constitutional; if the power to levy the tax exists in that class of cases; the courts are not authorized to interfere merely because they may consider the taxation impolitic, or even unjust and oppressive. In such cases the remedy is in the legislative and not in the judicial department. Cases, without number, might be cited in support of this principal. Langhorne v. Robinson, 20 Gratt. 661; Norfolk v. Ellis, 26 Gratt. 224; Eyre v. Jacob, 14 Gratt. 422; Postal Tel. Cable Co. v. Norfolk, 101 Va. 125, 43 S.E. 207.
It must always be conceded that the proper authority to determine what should, and what should not properly bear the public burden, is the legislative department of the state. This is true not only of the state at large, but it is true also in respect to each municipality, or political division of the state. Ould v. Richmond, 23 Gratt. 464; Commonwealth v. Moore, 25 Gratt. 951; Langhorne v. Robinson, 20 Gratt. 661; Mackin v. County Court, 38 W.Va. 338, 18 S.E. 632. In taxation of foreign corporations and agencies of the federal government, see monographic note on " Corporations" appended to Slaughter v. Com., 13 Gratt. 767. See W. U. Tel. Co. v. Alabama State Bd. of Assessment, 132 U.S. 472, 10 S.Ct. 161; Richmond v. So. Tel. Co., 174 U.S. 761.
Creating School Districts with Taxing Powers.--And the legislature has the exclusive power to create school districts, even without the assent of the citizens therein, and did not exceed their authority when they created a board of education to be elected by the qualified voters resident in said district, and gave it power to make the annual levies for building, school and expense funds. Kuhn v Board of Ed. of Wellsburg, 4 W.Va. 499.
2. Tax on Office of Sheriff. --An assessment of four hundred dollars upon the sheriff of Frederick county, as a tax upon his office, laid on the 4th of October and to be paid on the 1st of February following, was not in violation of the act of 1852, for if the time of the payment fixed by the court was inconsistent with the act, that would not render the assessment void, but it would be corrected, in that respect. Gilkeson v. Frederick Justices, 13 Gratt. 577.
3. Tax for Inspection by Pilot. --A fee of five dollars allowed by law to pilots for making inspection and search of vessels for runaway slaves, as enjoined by law, was held not to be an impost duty, and therefore not contrary to clause 2, § 10, art. 1 of the U.S. Constitution, but a proper means for the enforcement of a lawful police regulation. Baker v. Wise, 16 Gratt. 139. See monographic note on " Constitutional Law" appended to Com. v. Adcock, 8 Gratt. 661, under heads of " Interstate Commerce" " Taxation" and " Due Process of Law."
4. Dispensary Law Does Not Impose Tax. --An act authorizing a town to establish a dispensary for the sale of liquor is not a tax law. Its purpose is not to raise revenue, but to regulate the sale of intoxicating liquors. Its constitutionality, therefore, is to be determined by referring not to the taxing power of the legislature, but to its police power, although it may authorize the expenditure of money, and ultimately, the imposition of a tax. Farmville v. Walker, 101 Va. 323; Danville v. Hatcher, 101 Va. 523.
5. Road Law as Capitation Tax. --The road law for Louisa county (Acts 1891-92, c. 417, p. 686), requiring all able-bodied men between sixteen and sixty years old to work the roads two days in each year, and conferring authority on the overseer of roads to impose a fine upon persons refusing so to work, and to collect it by levy as in case of taxes, and providing for the imprisonment of one so refusing, is void, under Const. art. 10, § 5, which authorizes the general assembly to assess a capitation tax, not exceeding $ 1 per annum, on every male citizen over twenty-one years old, to be dedicated to the public schools, and confers on counties and corporations the power to impose a capitation tax, not exceeding fifty cents, for all purposes. (Lewis, P., and Lacy, J., dissenting). Proffit v. Anderson, 1 Va. Dec. 908.
6. Taxing State Bonds. --The state is entitled to tax all persons, property and business within its jurisdiction, unless restrained by contract, expressed or implied. This includes the right to tax the bonds and the coupons attached thereto, which the state has issued, the funding act and the bonds and coupons under it issued constituting no contract that they shall be nontaxable. Commonwealth v. Maury, 82 Va. 883, 1 S.E. 185, citing Murray v. Charleston, 96 U.S. 432, and distinguishing Hartman v. Greenhow, 102 U.S. 672.
7. Separate Assessments for Public Free Schools. --" The constitutionality of statute providing for separate assessments of taxes for support of such schools is no longer questioned. Vashon v. Greenhow, 135 U.S. 713, 716." Commonwealth v. Chaffin, 87 Va. 545, 12 S.E. 972.
8. Validity of Federal Tax--Res Adjudicata. --The supreme court of the United States having decided that the act of congress requiring the collection of twenty-five cents on each package of manufactured tobacco for exportation from the exporter is not a tax on the exportation of the article, the question whether that act is a violation of art. 1, § 9, clause 5, of the Constitution of the United States, is res adjudicta ; and this court is bound by it. Burwell v. Burgess, 32 Gratt. 472.
B. OF MUNICIPAL BODIES.
1. In General. --But the constitution does not authorize the county authorities to assess property for taxation, and levy taxes upon it, independent of the action of the legislature. Va., etc., R. Co. v. Washington Co., 30 Gratt. 471; S. V. R. Co. v. Supervisors of Clarke County, 78 Va. 269. So with municipalities generally. Green v. Ward, 82 Va. 324; Kirkham v. Russell, 76 Va. 956.
A grant by the legislature to a municipality of the power to raise annually, by taxation on subjects within its limits, such sums as it deems necessary for its expenses, is the grant of a general power of taxation, and confers upon the municipality all the powers possessed by the state in respect to the imposition of taxes; and the municipality can then impose taxes, in its discretion, upon all subjects within its jurisdiction not withheld from taxation by the legislature, whether they be taxed by the state or not. Newport News, etc., R. Co. v. Newport News, 100 Va. 157, 40 S.E. 645; Norfolk v. Griffith-Powell Co. (Va.), 45 S.E. 889.
It may of course only delegate to a municipality such powers as it may deem wise, but unless the power be limited, it passes in its entirety. Norfolk v. Griffith-Powell Co. (Va.), 45 S.E. 889.
In Supervisors, etc., v. Tallant, 96 Va. 723, 32 S.E. 479, it was said that for county purposes the supervisors can only levy taxes upon such property as is assessed with state taxes within the county, and that they cannot look beyond the subjects of taxation provided by legislature. This statement of the law is indisputable with respect to counties. Norfolk v. Griffith-Powell Co. (Va.), 45 S.E. 889. See post, " Licenses," IV, and especially, " City's Right to Tax Licenses," IV, G.
And yet, in a legal sense, the tax in any such case--where the power of laying a tax has been delegated to local authorities--is imposed by the representatives of the people in the legislature; the power, which belongs to them alone under the constitution, being exercised, pro hac vice, by those to whom they have seen fit to delegate it. Langhorne v. Robinson, 20 Gratt. 661; Whiting v. West Point, 88 Va. 909, 14 S.E. 698; Case of the County Levy, 5 Call 139.
Chartered Towns Assuming Powers Given by General Law.--Where the charter of a town empowered it to levy and collect taxes on subjects then assessed by the state for the revenue, and the general law or municipal corporation subsequently enlarged their powers of taxation, it could avail itself of such powers if it though tproper, and not con fine itself to such subjects as were assessed at the date of the charter. Clarksburg v. Goff, 5 W.Va. 498.
Tax on Steamboats.--The city of Wheeling being authorized by law to assess, levy and collect an annual tax for the use of the city, on personal property in the city not to exceed fifty cents on every hundred dollars of the assessed valuation thereof, the assessment and collection of an annual tax upon the value of steamboats, of twenty tons burden or more, belonging to a corporation, incorporated and organized by and under the laws of the state of West Virginia, and whose chief office is in said city and all of whose officers reside therein, and said city being the home of said steamboats, is neither a tonnage tax, nor an interference with interstate commerce, and is a valid exercise of such taxing power. Wheeling, etc., Transportation Co. v. City of Wheeling, 9 W.Va. 170.
Construed Strictly. --Laws conferring the power of taxation upon municipal corporation, or upon a county, are to be strictly construed, for the power of taxation as confided to them is a delegated trust; they act, not by virtue of any inherent power, but as mere agencies of the state. Va. & Tenn. R. Co. v. Washington County, 30 Gratt. 471; Lynchburg v. N. & W. R. R. Co., 80 Va. 237; Whiting v. West Point, 88 Va. 906, 14 S.E. 698; O. & A. R. Co. v. Alexandria, 17 Gratt. 176, and foot-note collecting cases; City of Richmond v. Daniel, 14 Gratt. 385; Schoolfield v. Lynchburg, 78 Va. 366; Green v. Ward, 82 Va. 324; Kirkham v. Russell, 76 Va. 956.
Constitutional Provisions. --The ninth section of the tenth article of the Constitution of 1872, reading: " The legislature may, by law, authorize the corporate authorities of cities, towns and villages, for corporate purposes, to assess and collect taxes; but such taxes shall be uniform, with respect to persons and property, within the jurisdiction of the authority imposing the same," is addressed to the legislature, is prospective in its operation, and does not operate proprio vigore. It does not operate a repeal of the law in force at the time of its adoption. Douglas v. Harrisville, 9 W.Va. 162; Powell v. Parkersburg, 28 W.Va. 698.
And the 8th section of the 10th article of the Constitution was not intended to, and does not, in any wise interfere with or prevent the levying, collecting and expenditure of taxes annually, by authority of law, by the proper, legal authorities of the counties, cities, etc., for needful and proper purposes of such counties, cities, etc., and to do and cause to be done whatever is necessary for that purpose, but to prevent the county authorities, city authorities, etc., respectively, from creating debts without the assent of three-fifths of the voters of the county or city, etc., voting upon the question, as to whether the debt should be created, and then not exceeding the limit prescribed in the section. List v. Wheeling, 7 W.Va. 501. See generally, monographic note on " Municipal Corporations" appended to Danville v. Pace, 25 Gratt. 1.
2. County Taxation of Railroads. --County authorities are not authorized by the constitution of this state independent of the action of the legislature, to assess railroad (or other) property for taxation and county levies on it. B. & O. R. Co. v. Koontz, 77 Va. 698; S. V. R. Co. v. Supervisors, 78 Va. 269; Va. & Tenn. R. Co. v. Washington Co., 30 Gratt. 471. See Supervisors v. Tallant, 96 Va. 723, 32 S.E. 479.
And the board of supervisors of a county could not anticipate the assessments of railroads for the purpose of state taxation, for a given year, by levying their own assessment upon the property of a railroad company, and the levy of a tax for county purposes, based on such assessment, was ultra vires and void. B. & O. R. Co. v. Koontz, 77 Va. 698.
By Acts 1879-'80, ch. 106, § 1, the legislature for the first time, empowered the supervisors to levy a tax on the real estate of railroad companies, whose roads pass through their county, prescribing that such tax should be equal to the tax imposed upon other property for county and school purposes, and based upon the assessment per mile of the same property made by the state for its purposes. B. & O. R. R. Co. v. Koontz, 77 Va. 698.
County supervisors are authorized to levy a tax on railroad property in their county at any time after the passage of the act of February 27, 1880, based on the state assessment made previous to that act; and where the levy recites that fact, the levy will be presumed legal. Norfolk, etc., R. Co. v. Supervisors, 87 Va. 521, 12 S.E. 1009; Prince George County v. A. M. & O. R. Co., 87 Va. 283, 12 S.E. 667; S. V. R. Co. v. Supervisors, 78 Va. 269.
And this though the supervisors had previously made their levy as to property generally in the county. And if the clerk of the supervisors failed to enter an order made by them, they may amend their record by having the order entered nunc pro tunc. S. V. R. Co. v. Supervisors Clarke County, 78 Va. 269.
Under existing statutes (Code, § 833, Acts 1891-92, p. 428) the board of supervisors of the several counties through which railroads pass, in assessing taxes for county purposes on the property of railroad companies are not restricted to a tax based on the assessment per mile made by the state for its purposes upon the number of miles of road within their respective counties, but may, in addition thereto, assess taxes on the depots and grounds, and other real and personal property of such companies, located within their respective counties. Atlantic, etc., R. Co. v. Lyons, 101 Va. 1, 42 S.E. 932.
Thus a levy imposed by the supervisors of Norfolk county upon the depots, grounds, rolling stock and stores belonging to the A. & D. R. Co., based upon the valuation given to same by the board of public works for the year of 1895, was a valid and lawful tax. Atlantic & D. R. Co. v. Lyons, 101 Va. 1, 42 S.E. 932.
For Any Lawful County Purposes.--Tax for county road purposes, and for the purpose of paying the interest on the bonds of the county, which were given to raise money for a subscription to a certain railroad, may as lawfully be levied on the railroad as those for any other county purposes. S. V. R. Co. v. Supervisors of Clarke County, 78 Va. 269.
Must Not Be Higher. --The Constitution, art. 10, § 1, provides that taxation by state, county or corporate bodies, shall be equal, uniform and ad valorem. If a county levy on railroads within the county be at ever so little higher rate than it is on other property in the county, such levy violates the constitution. S. V. R. Co. v. Supervisors Clarke County, 78 Va. 269.
Practical Construction of Law by Public Officers.--" The practical construction given to the statutes conferring power on counties to tax railroads by public officials, and acted upon by the people, is not only to be considered, but in cases of doubt will be regarded as decisive. It is allowed the same effect as a course of judicial decision. The legislature is presumed to be cognizant of such construction, and when long continued, in the absence of legislation evincing a dissent, the courts will adopt that construction." Atlantic & D. R. Co. v. Lyons, 101 Va. 1, 42 S.E. 932.
For District School Purposes.--Section 833 of the Code does not authorize the board of supervisors of counties to levy a tax on the property of railroad and telegraph companies for district school purposes, and no method has been provided by law for ascertaining the value of the property of railroad and telegraph companies within the boundaries of the several school districts of the state, and therefore no district school tax can be levied thereon. New York, etc., R. Co. v. Supervisors, 92 Va. 661, 24 S.E. 221.
And were this not so, a levy by a board of supervisors for district school purposes on the property of a railroad company, as a whole, within a county, without reference to what part thereof is located in the several districts, or so as to show the amount levied for each district, is void, because in violation of § 8, art, 8 of the Constitution of this state. New York, etc., R. Co. v. Supervisors, 92 Va. 661, 24 S.E. 221
Irrecoverable.--Where, during foreclosure suit, such tax is paid and its payment is approved by the court, purchasers of the railroad, who were parties to the suit, cannot recover the tax as illegally levied. Norfolk, etc., R. Co. v. Supervisors, 87 Va. 521, 12 S.E. 1009. See post, " Payment of and Liability Therefor," IX, C.
3. Special Meetings of Supervisors. --Acts 1878-'9, ch. 56, § 4, provides for special meetings of the board; and ch. 58, § 6, directs the board at the meeting in July of each year, or as soon thereafter as practicable, to order a levy upon all property assessed with state taxes within the county. B. & O. R. Co. v. Koontz, 77 Va. 698.
4. Levy to Pay Orders of Former Years. --The mere fact that a county levy is made to pay, among other demands, unpaid orders on the county treasury, issued under orders made in former years, will not render the levy void, as against § 8, art. 10, of the Constitution. It must appear that such orders are for indebtedness prohibited by the constitution. Armstrong v. Taylor, 41 W.Va. 602, 24 S.E. 993.
5. Magisterial Districts in West Virginia. --The constitution gives the power of taxation to state, counties, school districts and municipal corporations, but not to magisterial districts. Neale v. County Court, 43 W.Va. 90, 27 S.E. 370; Brannon v. County Court, 33 W.Va. 789, 11 S.E. 34.
And a school district, though it may be composed of the same territory as a magisterial district, is not the same as the latter district. In powers and nature they are wholly distinct. Neale v. County Court, 43 W.Va. 90, 27 S.E. 370.
6. Aiding Internal Improvement Co. --And where money raised by taxation, by the municipal authorities is applied to the aid of an internal improvement company under the authority of an act of the legislature, the test as to whether such a purpose is a corporate one, and so within the power of the legislature to authorize taxation therefor, is the probable benefit to the community within the corporation, and the proper judges of that question are the majority of the people of the corporation, acting under the sanction of the legislative body. Goddin v. Crump, 8 Leigh 120.
7. To Build School Houses. --The authority to levy taxes to establish a system of free schools carries with it by necessary implication the right to levy taxes to provide the necessary school houses. Bull v. Read, 13 Gratt. 78.
8. Extending Town Limits. --A town may, under § 49, c. 47 of the Code, extend its corporate limits so as to include a railroad bridge across the Ohio river, and impose municipal taxes on such bridge. Such taxation is not ultra vires. Point Pleasant Bridge Co. v. Point Pleasant, 32 W.Va. 328, 9 S.E. 231.
Where a town, under ch. 47, § 49 of the Code, extends its corporate limits so as to include agricultural or farming lands, and imposes municipal taxes on them, though they are not laid off into streets and alleys, and not laid out in lots, and are not so near streets and alleys as to be directly benefited by them or derive any peculiar benefit from the incorporation, the courts cannot affect its action or prevent such taxation. Davis v. Point Pleasant, 32 W.Va. 289, 9 S.E. 228.
And the legislature can confer upon a municipal corporation the power to extend its jurisdiction beyond the corporate limits (in this case for half a mile) for the purpose of laying and collecting certain taxes. Langhorne v. Robinson, 20 Gratt. 661; Whiting v. West Point, 88 Va. 910, 14 S.E. 698.
But an act of the legislature authorizing the imposition of a license tax for the exercise of certain privileges outside of the corporation limits, does not authorize its imposition for general municipal purposes, but only for the liquidation of bonds issued under authority of said act. Kaufle v. Delaney, 25 W.Va. 410.
9. Existence of County a Political Question. --The existence of a county under the constitution is a political and not a judicial question, and the county being recognized by all the branches of the political department of the government, the courts are bound thereby, and will not attempt to go behind the decision of the legislature that the constitutional prerequisites for the establishment of a new county were complied with. Hence the validity of taxes laid by the proper authorities of such county cannot be assailed on that ground. Lusher v. Scites, 4 W.Va. 11.
10. Local Assessments--Due Process of Law. --Local assessments for street improvements are an exercise of the taxing power, and article 14 of the amendments to the constitution of the United States applies to such assessments, and a statute which authorizes a local assessment to meet the costs of such improvements must provide for giving the person of whom such assessment is exacted reasonable notice and opportunity to appear and contest the legality, justice and correctness of the assessment before it is finally determined upon, otherwise it deprives such person of his property without " due process of law," and is void. Adams v. Roanoke (Va.), 45 S.E. 881.
If the law provides for the required notice to the landowner whose land it is proposed to charge with any part of the costs of the public improvement, an assessment against his property, made under it, will not be defeated if he has been given, at some stage of the proceedings, a fair opportunity to be heard to test the legality, justice and correctness of the assessment. Adams v. Roanoke (Va.), 45 S.E. 881.
Based on Frontage.--The principle that special assessments must be based on peculiar benefits does not necessarily appear to have been departed from by the fact that one-half of the cost of the improvement is apportioned among the property owners benefited, according to their frontage. Nor is the principle violated merely by the fact that by the apportionment, plaintiff in error's lot is assessed with a fraction more than an adjoining property valued for taxation at a larger sum than his property. Adams v. Roanoke (Va.), 45 S.E. 881. See monographic notes on " Municipal Corporations" appended to Danville v. Pace, 25 Gratt. 1; " Constitutional Law" appended to Com. v. Adcock, 8 Gratt. 661.
11. District School Taxes--Vote on Time of Session.
Is Only for One Year.--Where a vote was taken in a school district under § 41, ch. 123, Acts of 1872-3, or under § 41, ch. 15, Acts of 1881, and a majority of the vote was in favor of a specified number of months, exceeding four in the year, during which the public schools were to be kept open, such vote authorized and required the board of education to levy a tax sufficient, with the state's quota, to keep the public schools open for the specified time, but did not authorize them to levy such tax for the succeeding year or for any future year. And this, though at the election of a new board of education in the succeeding May, a majority of the voters of the district voted for a school levy, as such vote would only authorize and require the new board of education to keep open the public schools for four months in each succeeding year, and to make a sufficient levy for that purpose, the levy not exceeding fifty cents on one hundred dollars' worth of property in the district. Wells v. Board of Education, 20 W.Va. 157.
If in such case the newly-elected board of education should make a levy to keep the public schools open for a period of more than four months in the year in accordance with the vote taken in the preceding year, such levy is illegal. And in superseding it the circuit court must supersede and set aside such illegal levy entirely, and cannot supersede only such portion of it as is more than sufficient to keep the public schools open for four months. Wells v. Bd. of Education, 20 W.Va. 157.
But the circuit court has no authority under the Act of 1875, ch. 72, p. 153, to supersede such illegal levy, unless the taxpayers file their petition for that purpose within forty days after such illegal levy has been made. Wells v. Bd. of Education, 20 W.Va. 157.
When a levy made by a school district is thus superseded, it is the duty of the board of education at once to make a new levy according to law sufficient to keep the public schools open for only four months in the year. This new levy in lieu of an illegal levy, which has been superseded by the circuit court, must be made by the board of education and cannot be made by the circuit court, when it supersedes the illegal levy. Wells v. Bd. of Education, 20 W.Va. 157.
Special Levy--Authority.--The fact that the levy of forty cents on the $ 100 valuation for building fund and fifty cents thereon for teachers' fund is not sufficient to pay any existing indebtedness of the district in addition to the other purposes for which it is levied, is not a condition precedent to the authority of the board to exceed said rates in laying such levy, since the statutes provide other contingencies, which authorize the board to levy in excess of said rates, or to lay a special levy. Winifrede Coal Co. v. Board of Education of Cabin Creek, 47 W.Va. 132, 34 S.E. 776.
School Books--Levy Must Be Annual.--The levy by the board of education to pay for school books must be made annually, and must be paid out of the building fund. Winifrede Coal Co. v. Board of Education of Cabin Creek, 47 W.Va. 132, 34 S.E. 776.
12. Limit of Taxation--What Taxes Counted. --Taxes imposed by the county court for road purposes in a district under ch. 35, Acts 1881 (Code 1887, p. 338), are taxes assessed by " county authorities," within the meaning of § 7, art. 10, of the Constitution, and are to be included with other taxes levied by the county court, in determining whether the limit of taxation therein fixed will be exceeded. Brannon v. County Court, 33 W.Va. 789, 11 S.E. 34.
II. ASSESSMENT AND LEVY.
A. OF LANDS.
1. In General. --The imposition of taxes, and the law directing the mode of assessment and collection, are the exercise of legislative power, to be exercised in conformity with the requirements of the constitution, by general law. State v. South Penn Oil Co., 42 W.Va. 80, 24 S.E. 688.
If Illegal, Avoids Sale.--Where the assessment of a tract of land for taxation is illegal, a sale of such tract of land, made by the sheriff for nonpayment of the tax so assessed, is void. Cunningham v. Brown, 39 W.Va. 588, 20 S.E. 615.
West Virginia--Towns under 10,000--Must Be Uniform.--Under the assessment laws of this state, property, and the valuation thereof, as ascertained for municipal assessments, in all municipalities of less population than 10,000 inhabitants, should be identical with the property, and values thereof, ascertained for state, county and district assessments. Crim v. Philippi, 38 W.Va. 122, 18 S.E. 466.
2. Notice Required. --The imposition of taxes and levies is a " taking" within the meaning of the constitution of the United States, and if the law under which property is assessed for taxes does not provide an opportunity for the owner to be heard and contest the justice of the assessment he is deprived of his property without due process of law, and the law is unconstitutional and void, and the assessment or levy is illegal. Heth v. Radford, 96 Va. 272, 31 S.E. 8.
3. Duty to Enter Land for Taxation. --See post, " Forfeiture," IX, E, and " Payment and Liability for Taxes," IX, C. It is the duty of the owner of land to have it charged to himself on the land books, and to pay the taxes thereon. His failure to comply with this duty renders the land liable to be returned delinquent and sold. Bailey v. McClaugherty, 48 W.Va. 546, 37 S.E. 701.
Penalty.--If a person neglects to enter land with the commissioner of the land tax, he is liable not only to the tax, but to a penalty of twenty-five per centum per annum on the amount of each year's tax, which had fallen due up to the time of making the entry, and this, although there had been no proof of an application being made by any commissioner for a list of taxable property. Washington v. CommonwealthVa. Cas. 258.
And in Brown v. Com., 91 Va. 762, 21 S.E. 357, it is said: " Statutes imposing penalties for failure or refusal to make such returns or to return such lists (of valuation of property) are quite common, and have been uniformly upheld. Washington v. CommonwealthVa. Cas. 258; Commonwealth v. Byrne, 20 Gratt. 165."
Under Act of 1831.--The act of April 1, 1831, declared, that in a suit for the recovery of land lying west of the Alleghany, against a person bona fide claiming such land under a grant from the commonwealth issued previously to the act, who has had the land duly entered, and has paid all the taxes chargeable upon it, his adversary shall not be allowed to give his grant in evidence, unless he shall shew that he too has had the land duly entered and charged with taxes according to law, and has actually paid the taxes charged and justly chargeable upon it, and this act is constitutional. Taylor v. Burdett, 11 Leigh 334.
Each Hostile Claimant.--Where two or more persons claim the same land under adverse titles or color of title, if either desires to protect his title from forfeiture he must enter the land on the assessor's books in his name and pay the taxes thereon. The payment of taxes on such land by an adverse claimant will not protect other titles from forfeiture. Each claimant must enter the land and pay the taxes on it in his own name. Simpson v. Edmiston, 23 W.Va. 675; State v. Low, 46 W.Va. 451, 33 S.E. 271.
For where there are two or more hostile claimants the state exacts taxes from each and provides for the forfeiture of any title not entered on the assessor's books, or, if entered, on which the taxes are not paid. This is the purpose and policy of art. 13 of the constitution of this state, and statutes made in pursuance thereof. Simpson v. Edmiston, 23 W.Va. 675.
And a purchaser of land sold for delinquent taxes, after he acquires a deed therefor, will be deemed as holding adversely to the person in whose name the land was sold, and if such person denies the validity of the tax deed and still claims the land he must keep the land on the assessor's book in his name and pay the taxes thereon. The payment of the taxes on such land by the tax purchaser in his own name will not inure to the benefit of the former owner, and, therefore, such former owner will not be required to reimburse such purchaser for taxes so paid in his name by the court which declares void and sets aside such tax deed. Simpson v. Edmiston, 23 W.Va. 675-6; Mullan v. Carper, 37 W.Va. 215, 16 S.E. 527; Bryant v. Groves, 42 W.Va. 10, 24 S.E. 605.
Where Privity of Title Exists.--But where there is privity of title, one payment of taxes is sufficient and full satisfaction, whether the land is charged as a whole in the name of one, or the various interests separated and charged to the respective owners, dividing the valuation equitably between or among them as provided in 25, c. § 29, Code. Simpson v. Edmiston, 23 W.Va. 675; State v. Low, 46 W.Va. 451, 33 S.E. 271.
Entry of Patent Covers Excess of Acreage.--Where a patent is for a tract of land of a given number of acres, and it is entered for taxes accordingly, the fact that the tract contains a greater quantity will not forfeit the whole or the excess for nonentry for taxation, under ch. 125, Acts 1869, or § 6, art. 13, of the Constitution. State v. Cheney, 45 W.Va. 478, 31 S.E. 920.
Tract Lying in More than One County.--Under the Act of 1869, and under § 6, art. 13, of the Constitution, forfeiting land for nonentry on the tax books, where a tract lies partly in one county and partly in another, entry in the county wherein its greater part lies saves the whole tract from forfeiture. Entry in either county would likewise save it. State v. Cheney, 45 W.Va. 478, 31 S.E. 920.
4. In What Name Assessed. --An assessment for taxes of a tract of land in the name of an owner who himself or by tenant is in actual possession is a valid and regular assessment, whether he has legal or equitable title, and will save the land to him from a tax sale in the name of a former owner from whom such owner in possession derived his right. Boggess v. Scott, 48 W.Va. 316, 37 S.E. 661.
And where land is conveyed from one to another, and actually put on the tax books in the name of the purchaser, though such purchaser did not direct the transfer to his name, such assessment is as valid to save his estate from a tax sale in the name of some one else as though he had himself directed such transfer on the tax books to his name. Boggess v. Scott, 48 W.Va. 316, 37 S.E. 661.
Of Remainderman.--Where a life tenant and the remainderman are in possession of real estate which is assessed in the name of the remainderman, and the taxes are paid by him, the estate of said life tenant will not be forfeited to the state by reason of his failure to have said life estate assessed on the land books, or to pay the taxes thereon. McDougal v. Musgrave, 46 W.Va. 509, 33 S.E. 281.
Of Equitable Owner.--If one attempts to convey land to another but from want of a seal to the instrument does not pass legal title, it still confers equitable title; and assessment of land in the name of the purchaser under such contract or conveyance will save it from a tax sale in the name of such former owner, as such sale passes no right to the tax purchaser. Boggess v. Scott, 48 W.Va. 316, 37 S.E. 661.
If deeds of record show who is the equitable owner of a tract of land, and the assessor has taxed same on his books to the equitable owner, he ought not to tax the same land to the person who holds the legal title for the benefit of the equitable owner of the land, though the deed to such person does not, on its face, show that he is not the owner of the equitable, as well as legal title, but this is only shown by a preceding deed of record. Whitham v. Sayers, 9 W.Va. 671; Lohrs v. Miller, 12 Gratt. 452.
But if he do so tax it, and the land is sold for the nonpayment of such taxes, and a deed made to the purchaser, such sale is illegal, and the deed null and void. Whitham v. Sayers, 9 W.Va. 671.
Of Trustee or Cestui Que Trust.--The assessment of land with taxes, either in the name of a trustee or a cestui que trust under him, is valid to save the land to him from a tax sale in the name of a former owner from whom such trustee derived right, whether that right be legal or equitable. Boggess v. Scott, 48 W.Va. 316, 37 S.E. 661.
Where Trust Deed Given.--No transfer is made on the land books of land upon which the owner simply gives a deed of trust to secure the payment of money. The land still remains on the land books in the name of the former owner, and is taxed in his name. Section 459 of the Code expressly excepts such deeds from the list to be made for commissioners of the revenue. Stevenson v. Henkle, 100 Va. 591, 42 S.E. 672.
And if a party holding a deed of trust upon a tract of land, to indemnify him as surety, pays the taxes on said tract of land, which is assessed to the grantor in said trust deed in the district where it is located, and said grantor conveys said land to another party, who has the land placed upon the land book in a different district from the one in which it is located, and suffers the same to be returned delinquent and sold for taxes, and the party entitled to the benefit of said trust purchases said land at a trust sale under said trust deed, his title so acquired will not be affected by said delinquent sale and a deed made in pursuance thereof. Carrell v. Mitchell, 37 W.Va. 130, 16 S.E. 453.
On Death of Owner.--When at the time of the death of the owner of land (1798), there was no statute law giving any express directions as to how, on the death of any land owner, his land was to be taxed on the commissioner's books, the entry thereof in his name subsequent to his death, and a forfeiture thereof in that name for delinquency was valid and concludes heirs and purchasers. Smith v. Tharp, 17 W.Va. 221; Usher v. Pride, 15 Gratt. 190.
5. Effect of Assessment to Former Owner. --Where land is assessed for taxes in the name of the former owner after its sale by contract, conferring only equitable title, or after a conveyance passing legal title to another, and the land is also assessed for the same year in the name of such purchaser and the taxes paid, a sale for taxes in the name of such former owner will vest no title in the tax purchaser. Boggess v. Scott, 48 W.Va. 316, 37 S.E. 661; Bradley v. Ewart, 18 W.Va. 598; Whitham v. Sayers, 9 W.Va. 671; Simpson v. Edmiston, 23 W.Va. 675 at 682; Twiggs v. Chevallie, 4 W.Va. 463. See Lohrs v. Miller, 12 Gratt. 452.
But it may not follow as a necessary consequence that an assessment of taxes upon a tract of land would in every case be illegal and void because the land had been previously conveyed to another by the party in whose name it was so assessed. Hitchcox v. Rawson, 14 Gratt. 526.
For example, if it was not entered in the name of any such grantee claiming under former owner, then it was forfeited for omission, and that the proceeding looked to a forfeiture for delinquency and not for omission from the books is not material to this inquiry. The question is of forfeiture or no forfeiture upon the face of the record and does not concern the regularity of the proceeding to enforce it. Hitchcox v. Rawson, 14 Gratt. 526; Kendall v. Scott, 48 W.Va. 251, 37 S.E. 531.
When Notice of Payment of Taxes Necessary.--Section 27, ch. 31 of the Code of 1868, does not apply to such a case, but to cases where the owner, who is charged with paying the taxes, has neglected to look after the land and see that it was on the books in his own name, or where he has failed to have it put on the books in his own name, and the land, in the title under which he claims, or by mistake in his own name, has been returned delinquent for taxes, which he has in fact paid. In such cases he must file his notice within five years after the deed to the purchaser has been recorded, alleging the payment of the taxes, for the nonpayment of which the land was sold. Bradley v. Ewart, 18 W.Va. 598.
But if the land was improperly on the assessor's books and sold in such improper name, when the taxes had been paid by the rightful owner, the statute does not apply, and at any time in a proper case the said sale and deed may be declared illegal and void. Bradley v. Ewart, 18 W.Va. 598; Yancey v. Hopkins, 1 Munf. 419.
And where land was listed by the commissioner of the revenue to a wrong person, and sold by the sheriff as the property of such person, to a purchaser and conveyed to him by deed, such mistake was fatal and the sale absolutely void as against the true proprietor of the land. Roane, J., dissented. Yancey v. Hopkins, 1 Munf. 419.
Payment by Him Does Not Save Delinquency.--Where one sells and conveys a piece of land to another, who has himself charged therewith on the land books, and pays the taxes thereon for one year, but the next year fails to pay the same, the land still remains charged to the vendor and he pays the taxes thereon for the year in which vendee fails to pay. The land is returned delinquent in the name of vendee and sold, the purchaser in due time acquiring a deed therefor. The fact that the taxes were paid by the vendor will not render said delinquent sale, and the conveyance in pursuance thereof, void and ineffective. Bailey v. McClaugherty, 48 W.Va. 546, 37 S.E. 701.
6. Several Tracts as One.
Where Contiguous.--An owner of several tracts of land lying contiguous to each other should have them entered and charged with taxes on the land book as a whole, and not in different parcels. Maxwell v. Cunningham, 50 W.Va. 298, 40 S.E. 499.
And the assessment of two adjoining tracts of land in the same district as one will not vitiate a deed under a sale for taxes. Winning v. Eakin, 44 W.Va. 19, 28 S.E. 757; Nuzum v. McEldowney, 46 W.Va. 207, 32 S.E. 1024.
Where Not Contiguous.--But the assessment as a whole or entire tract of several tracts of land not contiguous, instead of by separate tracts, will be good to save the land on a tax sale in the name of the former owner. Boggess v. Scott, 48 W.Va. 316, 37 S.E. 661.
Each at True Acreage.--Lands are assessed for taxation in separate tracts or parcels, and each tract must bear its share of the burden of taxation. The fact that one tract is assessed at a greater acreage than it contains does not justify the commissioner of the revenue in diminishing the acreage of another distinct tract, or in dropping it from the tax-books, even though both tracts be owned by the same person. The proper remedy is by a proceeding to correct the erroneous assessment. Douglas Co. v. Commonwealth, 97 Va. 397, 34 S.E. 52.
Two Tracts Sold for Delinquency of One.--A tract of land was properly entered and assessed for taxation in the name of the owner on the land books of the county for the year 1882, and the taxes paid. In the year 1883 it was omitted, without the fault or knowledge of the owner, and placed back as an undistinguished part of a larger tract in the name of the former owner. It was restored to the land books in the year 1884 in the name of the true legal owner, and all taxes since charged were duly paid, including specifically and by name the years 1884, 1885 and 1886. The larger tract assessed in the name of the former owner was returned delinquent for nonpayment of the taxes for the year 1883, was, sold by the sheriff on the 24th day of November, 1885, under ch. 31 of the Code, and, not having been redeemed, was conveyed by the clerk of the county court, by deed dated the 11th day of March, 1887, to the purchaser. This deed conveyed to the purchaser no title to the small included tract, but, as to it, constitutes a cloud upon his title, which the owner has a right to have removed. Cunningham v. Brown, 39 W.Va. 588, 20 S.E. 615.
The smaller tract not being returned delinquent in the name of the owner for the year 1883, and there being nothing to rebut the presumption, it is to be presumed, under the facts of this case, that the taxes for that year have been paid by the owner, Cunningham v. Brown, 39 W.Va. 588, 20 S.E. 615.
7. After Delinquency and Sale, or Forfeiture. --The former law (and the present law) provides that the land sold for taxes returned delinquent thereon shall continue to be charged to the owner until the two years of grace allowed for redemption have passed, (§ 469, Code Va.,) and obviously, as the lands are taxed annually, unless the taxes are paid the lands must be returned delinquent, and under the annual sales act must be sold annually; and this must occur as to the lands purchased by the commonwealth until the assessment is altered on the land books, which cannot occur for two years in any case, whether the commonwealth is the purchaser or not. Couch v. Marye, 1 Va. Dec. 687. See contra, Baker v. Buckner, 99 Va. 368, 38 S.E. 280, and cases cited post, " Sale of Lands Acquired by State," IX, F. 16.
West Virginia--Valid Sale.--A sale of land for taxes, valid to pass title of the owner, will prevent its forfeiture for failure to enter it for taxes in the name of the former owner for years subsequent to the tax sale. State v. Sponaugle, 45 W.Va. 415, 32 S.E. 283.
Purchased for State--West Virginia.--Where land has been sold for taxes, and purchased for the state, and the clerk of the court illegally places such land on the land books for succeeding years in the former owner's name, and such land is again delinquent, and sold, by direction of the auditor, for the taxes of such succeeding years, such sale is illegal and void, and the purchaser acquires no title by reason thereof; and the clerk's deed made in pursuance of such sale is wholly void, and will be set aside. Totten v. Nighbert, 41 W.Va. 800, 24 S.E. 627.
After Forfeiture.--Where land of an intestate was not on the assessor's books in the name of himself or his heirs for any of the years 1866 to 1869 inclusive, and without authority from, or with the knowledge or consent of, his heirs, a tract of land was placed on the books for the years 1870-71 in his name, without charging it with the taxes for the previous years when it was not on the books, as required by § 34, ch. 31 of Code 1868. such entry was improper and a sale for the delinquent taxes of one of these years was a nullity, and a purchaser thereat took no title, the land having forfeited to the state for nonentry for those years. State v. Tavenner, 49 W.Va. 696, 39 S.E. 649, approving Cunningham v. Brown, 39 W.Va. 588, 20 S.E. 615.
8. Mistake in Name--Must Be Material. --A mistake in the name of the owner of land returned delinquent for the nonpayment of taxes which is not calculated to mislead is immaterial, and cannot affect the title of a purchaser of said land at a sale made to enforce the collection of such taxes. In the case in judgment the property was assessed to " Basic City Chilled and Roller Iron Works Co.," whereas the owner's name was " Basic City Chilled Roll and Iron Works." Stevenson v. Henkle, 100 Va. 591, 42 S.E. 672.
There was no other corporation in that county having a name at all similar. It had paid taxes assessed on the same property in the same name prior to the delinquency. The attention of one who was president, treasurer, and one of the directors of the corporation was called to the delinquency. He knew that the property was to be sold for taxes, and a few weeks after the sale, knew that the property had been sold for taxes, and promised payment at an early day. Under such circumstances, the corporation could not have been misled to its prejudice by the mistake in its name. Stevenson v. Henkle, 100 Va. 591, 42 S.E. 672.
9. Separate Interests Separately Assessed. --Where one party owns the surface of the land, and another the minerals underlying same, the taxes may be assessed on the interests in said land to the respective owners. Acts of 1882, ch. 32, § 4, requiring such interests to be so taxed, is constitutional. Low v. County Court, 27 W.Va. 785.
And where a stratum of coal underlies a tract of land, and the owner thereof sells and conveys the coal underlying the land, it is the duty of the commissioner in reassessing said land under ch. 36 of the Acts 1891, to assess the coal separately from the surface, charging the surface and coal to their respective owners. U.S. Coal, etc., Co. v. Randolph County Court, 38 W.Va. 201, 18 S.E. 566.
And so with mineral interests generally. Low v. County Court, 27 W.Va. 785.
But § 4, ch. 36, Acts 1891, providing for the reassessment of lands where it mentions coal privileges or interests held by a party or parties or any company or association, exclusive of the surface, and providing for a separate assessment of the surface and coal privilege and interest, in using the word " held" meant and intended " owned" by such party or parties of any company or association. U.S. Coal, etc., Co. v. Randolph County Court, 38 W.Va. 201, 18 S.E. 566.
And where either the surface or the coal or mineral underlying the same is leased to a party, it is the duty of the commissioner in reassessing the land under ch. 36 of the Acts of 1891, to assess such land and coal to the owner thereof. U.S. Coal, etc., Co. v. Randolph County Court, 38 W.Va. 201, 18 S.E. 566.
Effect of Failure to So Assess.--Where a grantor conveys the gas and oil in a tract of land, and the assessor fails to charge the interest so conveyed on the land book in the name of the grantee, for taxation, with its equitable proportion of the valuation of the land of which it is a part, as provided by said § 25, and the land remains charged as a whole to the grantor at the full valuation, and he keeps the taxes paid thereon, there can be no forfeiture of such gas oil interest for nonentry for five years in the name of the grantee. State v. Low, 46 W.Va. 451, 33 S.E. 271. For where there is a privity of title, one payment of taxes is sufficient and full satisfaction, whether the land is charged as a whole or the various interests entered separately. State v. Low, 46 W.Va. 451, 33 S.E. 271.
But Not a Mere License.--A privilege, liberty or license, to search and explore the land for oil or other minerals, coupled with a grant to dig and remove them, and convert them to the grantee's own use, if in fee or for life, creates an incorporeal freehold right in the real estate, which may be assessed to the grantee separately from the land or its surface, and, if the minerals be found or produced, creates a freehold interest, which should be assessed separately on the land books under the act of February 27, 1891 (ch. 36), entitled " An act to provide for the reassessment of the value of all real estate within this state." State v. South Penn Oil Co., 42 W.Va. 80, 24 S.E. 688.
But such privilege, liberty or license, and such interest, if limited to a term of years, are not held and owned as a part of the whole of a freehold ownership, within the meaning of the act, and should not be separately assessed to the mining licensee or lessee on such land books. State v. South Penn Oil Co., 42 W.Va. 80, 24 S.E. 688.
Oil in Situ Is Realty.--Where a party holds a lease upon land for oil and gas purposes, upon the usual terms and conditions, paying one-eight of the oil produced as royalty, the oil while it remains in situ must be regarded as realty, and as remaining the property of the lessor until brought to the surface. Carter v. Tyler County Court, 45 W.Va. 806, 32 S.E. 216.
And the prospective production of oil from such well cannot be properly charged to the lessee, on the personal property books of the county. Carter v. Tyler County Court, 45 W.Va. 806, 32 S.E. 216.
10. Ground Rents.
Taxable as Real Estate.--A rent charge or ground rent is real estate, and subject to all of its incidents, including curtesy and dower. Upon the death of the owner it descends to his heir or devisee. Such rents, though not common in this state, are recognized as valid. If taxable at all, they are taxable as real estate, and it is error to enter them on the personal property books of the commissioner of the revenue. Willis v. Commonwealth, 97 Va. 667, 34 S.E. 460.
No Mode of Assessment.--No property can be assessed with taxes until the legislature has made suitable provision for that purpose. It has made no such provision for ascertaining and assessing for taxation the value of ground rents, and hence they are not taxable. Willis v. Commonwealth, 97 Va. 667, 34 S.E. 460.
Basis of Valuation.--The value of the estate in a ground rent is not the amount of annual rent, but the value of the corpus or principal which produces the rent, and of which the rent is the fruit or product. Willis v. Commonwealth, 97 Va. 667, 34 S.E. 460.
11. Reinstating Omitted Lands. --Under the provision of § 479 of the Code, where land has been improperly dropped from the land books it is the duty of the commissioner of the revenue to reinstate it, and charge on it taxes at the rate imposed by law for each year it has been omitted, together with lawful interest on each year's taxes. This section of the Code is not in conflict with the fourteenth amendment to the constitution of the United States, as ample provision is made by § § 567, 568 of the Code to have the action of the commissioner reviewed, and, if erroneous, reversed. Douglas Co. v. Commonwealth, 97 Va. 397, 34 S.E. 52.
If the record fails to disclose any change of ownership of land between the time when it was dropped from the land books and the time it is reinstated, it should be reinstated in the name in which it stood when dropped. That person is the true owner within the meaning of § 479 of the Code. Douglas Co. v. Commonwealth, 97 Va. 397, 34 S.E. 52.
B. OF PERSONAL PROPERTY.
1. In General.
May Include Fixtures.--Under ch. 29 of the Code, which provides for the assessment of taxes, the words " personal property," as therein used shall include all fixtures attached to the land, if not included in the valuation of such land entered in the proper land book. Carter v. Tyler County, Court, 45 W.Va. 806, 32 S.E. 216.
Personal Property Book.--The statutes, which requires that a copy of the personal property book shall be by the assessor delivered to the county clerk on or before the first day of July, is directory. State v. Buchanan, 24 W.Va. 362. For the right of the state to have her revenue assessed and collected cannot be lost by the laches of her agent. State v. Buchanan, 24 W.Va. 362.
Assessor's Duty as Ministerial Officer.--It is no concern of the assessor, as such, whether the tax is illegal or valid. It is his duty to obey the instructions of his superior as to what property is subject to taxation, and when he has been, by the auditor under the decision of the governer, instructed to enter property on his personal property book, he cannot shield himself by denying the legality of the instructions, but it is his duty to so enter it. State v. Buchanan, 24 W.Va. 362.
Omitted Taxes.--Although a resident of the city has paid all the taxes assessed against him for certain years, yet, where the assessor accidentally omitted certain property for those years, he properly included in the assessment for a subsequent year taxes upon the property omitted for those years, with the interest on the same, and the owner was liable therefor. Wheeling v. Hawley, 18 W.Va. 472. See State v. Eddy, 41 W.Va. 95, 23 S.E. 529.
And the municipal court of the city had jurisdiction of a suit to recover such omitted taxes brought by the state under § 12, ch. 57, Acts of 1865. Wheeling v. Hawley, 18 W.Va. 472.
2. Shares of Stock. --A corporation is a legal entity wholly distinct from its stockholders, and its captial stock, franchises and assets may be taxed, and at the same time a tax may be laid upon the shares of stock in the hands of the individual holders thereof. The stockholders are individually distinct from the corporation, though the aggregate of all the shares constitutes the company, and represents its franchise, capital and property. Allen v. Commonwealth, 98 Va. 80, 34 S.E. 981; State Bank of Va. v. Richmond, 79 Va. 113. See monographic note on " Municipal Corporations" appended to Danville v. Pace, 25 Gratt. 1.
Nonresident Corporation.--A certificate of stock in a nonresident corporation doing business wholly out of this state is no part of the " capital of a business done out of the state," within the meaning of § 8, ch. 342, Acts 1897-98, p. 386, and the same is taxable under said act. Allen v. Commonwealth, 98 Va. 80, 34 S.E. 981.
Resident Corporation.--A certificate of stock in a resident corporation doing business wholly in this state, constitutes no part of " the capital used by any merchant or manufacturer" in his business, within the meaning of § 8, ch. 342, Acts 1897-98, p. 386, and the same is taxable under said act. Allen v. Commonwealth, 98 Va. 80, 34 S.E. 981.
3. Toll Bridges and Ferries. --Section 63 of ch. 29 of the Code, which provides that the assessment of toll bridges and ferries shall be made by the assessor by ascertaining the annual value, and multiplying such annual value by ten, is not unconstitu tional, which provides that taxation shall be equal and uniform through the state, and all property, real and personal, shall be taxed in proportion to its value, to be ascertained as directed by law. Charleston & S. Bridge Co. v. Kanawha, 41 W.Va. 658, 24 S.E. 1002.
Section 63 of ch. 29 of the Code provides for the assessment of toll bridges, which includes the franchises of toll bridges under the last clause of § 1, art. 10 of the Constitution, and provides for ascertaining the yearly value of a toll bridge. The value for taxation under that section is estimated from the earnings. It does not provide for assessing the real estate belonging to the bridge separately, and for that reason the legislature requires assessment to be placed on the personal property books. Charleston & S. Bridge Co. v. Kanawha, 41 W.Va. 658, 24 S.E. 1002.
4. Bank Stock. --When the assessor of a county applies to the proper officer of a bank, organized under the laws of this state, located and doing business in the county and district for which he is assessor, under the provisions of § 64 of ch. 29 of the Code, to ascertain the value of the capital employed or invested in its business, it is the duty of the bank officer to furnish such information to the assessor as will enable him to properly enter same in his personal property book, and the directors and stockholders of said bank have no right to elect to withhold such information from the assessor. Bank of Bramwell v. County Court, 36 W.Va. 341, 15 S.E. 78.
The intention of the law is that the capital stock of the bank shall be listed for taxation in the county where such bank is located. Bank of Bramwell v. County Court, 36 W.Va. 341, 15 S.E. 78.
And it is not the duty of the shareholder in such bank to list his stock with the assessor for taxation, when the same has been listed under the provisions of § 64 of said chapter. Bank of Bramwell v. County Court, 36 W.Va. 341, 15 S.E. 78.
National Banks--Liabilities Not Deductible.--A debtor who owns national bank stock is not entitled, under Acts 1889-90, p. 197, to have his indebtedness deducted from the value of such stock before it is assessed for taxation. Bank stock is not an evidence of debt within the meaning of the act. Nor is the act in conflict with § 5219 of the revised statutes of the United States. Burrows v. Smith, 95 Va. 694, 29 S.E. 674.
Where and When Assessable to Holder.--Under ch. 54, Acts 1875, shares of bank stock are only assessable to the holder thereof in the district where he resides, and then only in case they have not been included in the assessment of the capital of the bank in the district or municipality in which it does business. Watson v. Fairmont, 38 W.Va. 183, 18 S.E. 467.
And if a municipality in which an incorporated bank does business, neglects to assess the capital stock of such bank, as it has the legal right to do, it cannot assess a nonresident shareholder with the value of the shares held by him. Watson v. Fairmont, 38 W.Va. 183, 18 S.E. 467.
5. Insurance and Express Companies Premiums--Validity. --The act of March 2d, 1864, entitled " an act to amend the law concerning insurance and express companies" providing that insurance companies should make return of their premiums collected and uncollected, and pay into the state treasury a tax of three per cent. thereon, is unconstitutional; being in conflict with the provisions requiring taxation to be equal and uniform and applying to no other class of subjects, or corporations, or to individuals. Franklin Ins. Co. v. State, 5 W.Va. 349.
6. Building and Loan Associations. --Building and loan associations are not to be assessed with a capital stock. The members are to be assessed with their shares. Ohio Valley & L. Ass'n v. County Court, 42 W.Va. 818, 26 S.E. 203.
C. CIRCUITS REVIEWING ACTION--ADMINISTRATION. --The action of the circuit court in supervising the decision of the board of public works as to the assessment and valuation of railroad property for taxation under the provisions of ch. 52, Acts 1883, is merely administrative and not judicial--the court acting in such case as an appellate assessment or tax tribunal and exercising powers distinct from those belonging to it as a court or judicial tribunal in the legal sense of that term. Ry. Co. v. B'd of Public Works, 28 W.Va. 264.
III. CORRECTING ASSESSMENTS.
A. JURISDICTION TO CORRECT. --The county court has jurisdiction to correct an error of the commissioner of the revenue in assessing a penalty upon a person for neglecting to enter his lands; and to the judgment of the county court, a supersedeas lies to the superior court in such case. Washington v. CommonwealthVa. Cas. 258.
Action Administrative.--When the question of the legality or illegality of the listing of property on the land books for taxation comes before the county court for correction, on the application of the party assessed, who feels himself aggrieved, the county acts, in review of the action of the commissioner of reassessment, as an administrative board; and such action of the county court is not " judicial," within the meaning of § 24 of art. 8 of the Constitution. State v. South Penn Oil Co., 42 W.Va. 80, 24 S.E. 688. See Railway Co. v. B'd of Pub. Works, 28 W.Va. 264.
Circuit Court, on Appeal, Acts Judicially.--When the issue on such controversy is made up between the applicant and the state for the purpose of appeal to, and decision between such parties by, the circuit court, as to the right and legality of such assessment litigated between them, in the mode and according to the proceeding prescribed by law in such case for contesting the right claimed, and deciding the controversy, the orders and judgment of the circuit court are made and rendered in the exercise of its judicial power, in the proper and ordinary sense. State v. South Penn Oil Co., 42 W.Va. 80, 24 S.E. 688.
Appellate Jurisdiction.--Where an application to correct an assessment under ch. 29 of the Code of W.Va. (1899) is made and refused, there is a controversy as to the proper mode of levying taxes on bank stock, and the supreme court has jurisdiction thereof on appeal from a circuit court. Bank of Bramwell v. County Court, 36 W.Va. 341, 15 S.E. 78.
It is not, however, the province of this court to correct erroneous assessments; but, if the officers of the bank had given in their property and stock as required by law, this cause of complaint would not have been presented, as then the assessor would not have been compelled to fix his own valuation, as he was here. Bank of Bramwell v. County Court, 36 W.Va. 341, 15 S.E. 78.
Each Tract Must Stand on Its Own Bottom.--In a proceeding to correct an erroneous assessment of land, the validity of that assessment cannot be determined by inquiring whether another tract, separately entered for taxation, has been assessed at more than the acreage actually contained therein. Douglas Co. v. Commonwealth, 97 Va. 397, 34 S.E. 52.
By Motion in Hustings Court of Richmond.--The act providing a remedy for the correction of excessive assessments by motion in the hustings court of Richmond between the 1st October, 1878, and the 1st January, 1877, and during the same periods in every second year thereafter, applied to assessments theretofore made, embracing of course the year 1876, and also erroneous assessments made for any year previous to 1876. It applied to assessments made, and not to assessments to be made. City of Richmond v. Crenshaw, 76 Va. 936.
When, on proper proceedings, which are prescribed by the statute, the erroneous assessment shall have been corrected by the hustings court, the taxes due to the city of Richmond shall be based on the assessment as corrected. This is on the principal enjoined by the constitution of the commonwealth and the charter of the city, that all taxes shall be ad valorem and uniform. City of Richmond v. Crenshaw, 76 Va. 936.
Value of Toll Bridge--Evidence.--Where valuation of a toll bridge for taxation has been fixed by the assessor as provided for in § 63. ch. 29 of the Code, neither the county court, on application to correct such assessment, nor the circuit court, upon appeal from the refusal of the county court to make such correction, can correct and fix the valuation of such toll bridge by taking the opinion of witnesses as to what would be a reasonable valuation of such bridge for taxation. Charleston & S. Bridge Co. v. Kanawha County Court, 41 W.Va. 658, 24 S.E. 1002.
Code, § 444, Applies Only to General Assessments.--The method prescribed by § 444 of the Code for correcting erroneous assessments of real estate applies solely to the general assessment of lands throughout the commonwealth every fifth year, and has no application to assessments made under special provisions contained in charters of municipal corporations. Heth v. Radford, 96 Va. 272, 31 S.E. 8.
B. RAILROAD COMPANIES INCLUDED. --Code 1873, ch. 33, § 88 (now § 567 of the Code of 1887,) providing the mode and the forum for correcting erroneous assessments, is general in phraseology, and may apply as well to railroad companies as to individual taxpayers. S. V. R. R. Co. v. Supervisors Clarke County, 78 Va. 269.
C. EQUITABLE RELIEF FROM ASSESSMENT. --It is not the province of a court of equity to relieve a peculiar property (as a watering place for the resort of visitors), where it is greatly depreciated in value by causes resulting from the war between the states and the state of the country after the conclusion of the same, from taxes charged thereon according to the value of the property prior thereto. Such a consideration might be very appropriately addressed to the legislative department of the government. White Sulphur Springs Co. v. Robinson, 3 W.Va. 542.
IV. LICENSES.
A. UNIFORMITY AND EQUALITY REQUIRED. --The requirement of § 22, art. 4 of the Va. Constitution of 1850, that taxation shall be equal and uniform throughout the commonwealth, does not apply to taxes on licenses, as such taxes cannot be assessed and their true value ascertained. Slaughter v. Com., 13 Gratt. 767; Ould v. Richmond, 23 Gratt. 464; Com. v. Moore, 25 Gratt. 951, where it is said that the uniformity must be such as is compatible with the subject matter, and as to licenses the only uniformity required, is that the tax shall be the same on all those in the same business. This was under the constitution of 1869, which extended the requirement of uniformity to taxation imposed by county or corporate bodies. Danville v. Shelton, 76 Va. 325; Eyre v. Jacob, 14 Gratt. 422; Helfrick v. Com., 29 Gratt. 844. The equality and uniformity required in a license tax is satisfied by taxing all in the same class alike. Morgan's Case, 98 Va. 812, 35 S.E. 448; Newport News, etc., R. Co. v. Newport News, 100 Va. 157, 40 S.E. 645.
Thus, the provision of the act of the general assembly of March 30th, 1877, known as the Moffett register law, which directs that the cities of the commonwealth shall be first supplied with the registers, and requiring their use to record sales, on which the amount of the license tax was to be based, was not unconstitutional as being an unjust and partial discrimination against liquor dealers in the cities, as a license tax does not admit of the exact uniformity and equality in its application that is required in taxes on property, and the legislature has never attempted to attain to it. Helfrick v. Com., 29 Gratt. 844.
B. STRICT CONSTRUCTION. --Laws imposing a license or tax are strictly construed, and all doubts as to the meaning or scope of such laws are resolved against the government, and in favor of the citizen. Brown v. Commonwealth, 98 Va. 366, 36 S.E. 485.
C. LEGISLATIVE DISCRETION. --Power to levy a tax upon licenses is permissive--the legislature may levy such a tax at its discretion; but with respect to the capital invested in the business the language used is mandatory. The legislature cannot exempt such capital from taxation, and, as a consequence, cannot delegate to any subordinate authority the power to exempt. Norfolk v. Griffith-Powell Co. (Va.), 45 S.E. 889.
The legislature therefore has the power to levy a tax upon licenses where the business cannot be reached by the ad valorem system, but it is not obliged to do so; and it is no invasion of the requirement that taxation shall be uniform if the license tax is not imposed. Norfolk v. Griffith-Powell Co. (Va.), 45 S.E. 889.
Under the provisions of the constitution, the general assembly has no power to levy a license tax upon any employment or business other than those named in the fourth section, except in cases where such business cannot be reached by the ad valorem system. Whether a business can or cannot be reached by the ad valorem system is a question primarily for the legislature, and its determination of the question cannot be held to be erroneous unless it is manifestly so. Morgan's Case, 98 Va. 812, 815, 35 S.E. 448; Com. v. Moore, 25 Gratt. 951; Thomas v. Snead, 99 Va. 613, 39 S.E. 586.
And the fact that the legislature imposes an ad valorem tax on a business is a conclusive determination that the business can be reached by the ad valorem system, and it must be so reached when taxed by municipal corporations. Thomas v. Snead, 99 Va. 613, 39 S.E. 586.
If this means that a city, in such case, cannot impose a license, it is overruled by the late case of Norfolk v. Griffith-Powell Co. (Va.), 45 S.E. 889; Newport News R., etc., Co. v. Newport News, 100 Va. 157, 40 S.E. 645. See post, " City's Right to Tax Licenses" IV, G.
Classifying Corporations as Nonresident.--Sections 86 and 87 of ch. 35 of the Acts of the Legislature of 1901, classifying corporations chartered under the laws of this state, and designating those having their principal places of business or chief works outside of the state as " nonresident corporations," and imposing upon them a greater license tax than upon those having their principal places of business and chief works within the state, does not. in so classifying them and discriminating, violate § 1, art. 10 of the constitution of this state, nor cl. 1, § 10, art. 1 of the Constitution of the United States, nor the fourteenth amendment to the constitution of the United States, and is therefore valid, and the charge of such greater tax upon such nonresident corporations legal. Blue Jacket, etc., Co. v. Scherr, 50 W.Va. 533, 40 S.E. 514. See ante, " Of the Legislature" I, H, and " In General" I, B, 1.
D. COMMISSIONERS OF REVENUE--ASSISTANT. --A commissioner of the revenue under § 7 of the act of 1867, in relation to the assessment of taxes on licenses, appoints an assistant commissioner, and the appointment is approved by the proper court. The question whether the facts existed which authorized the commissioner to appoint an assistant cannot be made in a collateral proceeding. Commonwealth v. Byrne, 20 Gratt. 165.
How Certificates Signed.--The act authorizing the assistant to perform all the duties which his principal is authorized to perform, it is not necessary that the certificates given by him shall be given in the name of the principal, or that the name of the principal shall be signed to the certificate. Commonwealth v. Byrne, 20 Gratt. 165.
The assistant commissioner having delivered to the sheriff a certificate of the state tax assessed, and on defendant's failure to pay the tax, the sheriff levies upon personal property, and leaves it in his possession. The property is subsequently seized for the tax due to the United States government, this levy having been made subsequent to the levy by the sheriff, and sold for the tax due to the United States government. The sheriff not being able to find any other property of the defendant, takes and holds him in custody. He is legally in custody. Commonwealth v. Byrne, 20 Gratt. 165, See monographic note on " Constitutional Law" appended to Com. v. Adcock, 8 Gratt. 661.
E. DOUBLE TAXATION. --The imposition of a license tax on a street railway company for the privilege of conducting its business, and a direct tax on the property engaged in carrying on the business is not double taxation. Newport News, etc., R. Co. v. Newport News, 100 Va. 157, 40 S.E. 645.
And the fact that capital is invested in the necessary furniture or apparatus to carry on a pursuit on which a license tax is laid, which capital may itself be subject to tax as property, does not make the license tax invalid. Lewellen v. Lockharts, 21 Gratt. 570. Such is not double taxation. Morgan's Case, 98 Va. 814, 35 S.E. 448.
Junk Business.--The requirement of the Acts of Assembly, 1869-70, ch. 174, § 6, that a merchant who pays an ad valorem tax on his general business as merchant, must take out and pay for a special in order to carry on the junk business, is not unconstitutional as being double taxation. Hirsh v. Com., 21 Gratt. 785.
F. ON PARTICULAR PURSUITS.
License Tax on Fishing.--The act of March 3d, 1898, (Acts 1897-98, p. 864), regulating the catching of fish in the waters of the commonwealth, is a valid exercise of the taxing power. The tax imposed is equal and uniform, as all fishermen in the same class are taxed alike. Imposing a license and taxing the fishing tackle is not double taxation. The title of the act is sufficient to cover the body, and the business cannot be reached on the ad valorem system. Whether or not a business can be reached by the ad valorem system is primarily for the legislature, and its determination of that question will never be held erroneous unless it is manifestly so. The act also sufficiently designates the object to which the tax is imposed by it is to be applied. Morgan v. Commonwealth, 98 Va. 812, 35 S.E. 448.
The navigable waters of the state, and the soil under them within its territorial limits are the property of the state, for the benefit of its people, and it has the right to control them as it sees proper, provided it does not interfere with the authority granted the United States to regulate commerce and navigation. The state has the right to impose a license tax for fishing in such waters. Morgan v. Commonwealth, 98 Va. 812, 35 S.E. 448.
Real Estate Auctioneers.--Under the provisions of § 50, ch. 244, Acts 1889-90, real estate auctioneers are liable to a tax of one-fourth of one per cent. of the amounts of their sales, in addition to the specific tax, and the method of ascertaining the amount of such sales is pointed out by § 44 of the same act, which requires each of such auctioneers to keep an account of sales made by him, and, whenever required by a commissioner of the revenue, to " render an account for assessment of all his sales," under oath. Such was the object of § 44, and effect must be given to it, notwithstanding § 50 declares that the amount of sales shall be " ascertained and charged as is provided in case of liquor merchants" --a method extinct at the time ch. 244 was enacted. Adams v. Walker, 100 Va. 770, 42 S.E. 866.
Real Estate Broker--Single Sale Does Not Make.--A single sale of land for reward, by one for another, without any thing to show that the former professed to practice the business of a broker, will not make him one under § 2, c. 32 of the Code. Jackson v. Hough, 38 W.Va. 236, 18 S.E. 575.
On Commission Merchants.--H. has taken out a license as a storager, and also as a tobacco auctioneer. But if H. receives tobacco from the grower on consignment, sells it at auction, makes advances to the owner, charges him storage, an auction fee, and a commission on the amount of sales, independent of his charge as auctioneer, and accounts with him for the balance, he is bound to obtain a license as a commission merchant, and pay the tax assessed thereon according to law. Neal v. Commonwealth, 21 Gratt. 511.
Under the act of Feb. 24, 1823, requiring a license of any person selling by wholesale or retail, goods, wares and merchandise of foreign or domestic growth or manufacture, tobacco, the growth of the state, as ordinarily prepared for market by the grower, is not included, and a commission merchant is not obliged to obtain a merchant's license to sell it. Mitchell v. Com., 1 Leigh 572. See Acts 1895-6, p. 685.
On Ship Broker.--Where a resident agent proposes to a ship captain to furnish him with a cargo of lumber, belonging to his principals, at a certain freight charge, if he would allow himself a certain percentage on the freight, and on the offer being refused, made another, which was also refused, and then gave him the cargo at a certain freight charge, assisted and superintended the loading, employed and paid two men, and in compensation received two and one-half per cent. on the freight, he did not act as a ship broker and was not guilty of the offense of acting as such without a license. Wooddy v. Com., 29 Gratt. 837.
Tax on Hucksters.--Where an act of the legislature, § 20, Acts of 1866-7 provided that no person without license should canvass any county for buying matters of subsistence for man or beast, a butcher doing business in the city, who went out into a county and bought cattle, etc., to sell as meat in his stall, came within the provisions of the act, and had to take out a license for so buying. Sledd v. Com., 19 Gratt. 813. See monographic note on " Municipal Corporations" appended to Danville v. Pace, 25 Gratt. 1.
But a merchant who has paid a license tax to the state for doing business at one point in the state is not required to take out an additional license for selling country produce, acquired in his business, at the market house of a city in another portion of the state. The place occupied by him at the curb of the city market house is not a place of business within the meaning of the statute. The statute contemplates a fixed place of business as a shop or store. Neither is such a sale " doing business in said city" within the meaning of the charter of the city of Roanoke, permitting the city to impose a license tax therefor. Brown v. Commonwealth, 98 Va. 366, 36 S.E. 485.
Oyster Trade--Tonnage Tax.--The act of March 3, 1866, requiring every captain of a vessel employed in carring oysters taken in the waters of Virginia to obtain a license and pay therefor the tax of three dollars per ton on the measurement of the vessel, imposes a tonnage duty, and is, therefore, in violation of art. 1, § 10, of the United States Constitution. For it is not a license to the master, personally, to engage in the oyster trade, or a tax upon the vessel as property. Johnson v. Drummond, 20 Gratt. 419.
Agents Selling Sewing Machines, etc.--That clause of § 2, c. 32 of the Code, as amended by ch. 17, Acts 1885, which reads, " nor shall any agent traveling with one or more horses sell any lightning-rod, sewing machine, etc., without a state license therefor," is not unconstitutional, as applied to such agents selling singer sewing machines manufactured outside of this state, for it is a license tax not directly affecting interstate commerce, and making no discrimination against citizens of other states or articles manufactured in other states. State v. Richards, 32 W.Va. 348, 9 S.E. 245.
Merchants--Definition.--A merchant, in the sense of Acts 1881-82, pp. 511-12-13, taxing the three sorts of merchants, is a dealer in goods, wares and merchandise, who has the same on hand for sale and present delivery. He is taxed according to the amount of his purchases, to be ascertained in the manner prescribed, and is licensed to sell his own goods. A commission merchant is one who buys and sells on commission, and may sell any personal property which is left with or consigned to him for sale, except such as is expressly excepted by the act. A sample merchant is one who sells, or offers to sell, any description of goods, wares or merchandise by sample, card, description or other representation, verbal or otherwise, or who acts as agent for the sale or collection of orders by sample or description list, such as is furnished by the C. O. D. supply company of America, or any similar company. White v. Commonwealth, 78 Va. 484.
Merchant's License--Several Stores.--The proviso in the revenue law of January 23, 1799, that not above one tax should be paid by a merchant for selling goods at one and the same store, was not to be construed so as to compel the payment of separate taxes on several stores kept by the same merchant. Edmonds v. Carpenter, 1 Hen. & M. 340.
Revenue Law of 1877.--Whilst the statute, § 35 of the revenue law of 1877, allows a resident merchant or manufacturer, who has paid a tax on his business of $ 100, to sell his goods by sample, card, etc., in any other county, without paying additional tax, he is not authorized to take his goods or wares to another county and there sell them, without paying the tax prescribed by the said revenue laws. Webber v. Commonwealth, 33 Gratt. 898.
Sample Merchants.--A sample merchant's license authorizes sale, by himself or by his agent, only of his own goods. Acts 1881-2, pp. 211-12-13. White v. Commonwealth, 78 Va. 484; Myerdock v. Com., 26 Gratt. 988.
And the intent of the agent in selling goods not the property of his principal, under that principal's license as sample merchant, is not, by the statute, an ingredient of the offense, and need not be alleged or proved. White v. Com., 78 Va. 484.
License issued under Acts 1881, pp. 211-12-13, to one to do a sample merchant's business does not authorize him to do business as a commercial broker, which is authorized by license issued under Acts 1881-2, pp. 523-4. Henderson v. Commonwealth, 78 Va. 488.
Sale of Goods Purchased Out of State.--" Coffee, sugar and molasses purchased out of the commonwealth, with proceeds of cordwood, cut by the purchaser, and brought into the state, cannot be sold without a license." Commonwealth v. Fugate, 6 Gratt. 693.
Skating Rinks.--Skating rinks are not enumerated in the act requiring license to be taken out " for public performances or exhibitions," and unless they be conducted so as to be clearly shown that they are properly " public performances or exhibitions," they cannot be brought within that act. Harris v. Commonwealth, 81 Va. 240.
License to Keep Cook Shop.--See, as to effect of statute, requiring license to keep a cook shop, on a city ordinance against the keeping of cook shops by free negroes within the city. Mayo v. James, 12 Gratt. 17.
Licence to Sell Music.--" Music" is a species of goods, wares and merchandise, in one of the ordinary senses in which that term is used, and is included within the prohibition of the statute requiring a license to sell such articles, not manufactured by the seller within the state. Commonwealth v. Nax, 13 Gratt. 789.
Expiration of License.--Section 550 of the Code held to apply only to state, and not to municipal, licenses, which may be prescribed to expire June 30th, instead of April 30th, of each year. Roche v. Jones, 87 Va. 484, 12 S.E. 965.
G. CITY'S RIGHT TO TAX LICENSES.
In General.--(See ante, " In General," I, A, 1.)
The right of a city to levy a tax upon licenses is not affected by the fact that the property used by the company in the conduct of its business is taxed both by the city and the state upon the ad valorem basis. Norfolk v. Griffith Powell Co. (Va.), 45 S.E. 889; Norfolk v. Norfolk Landmark, 95 Va. 564, 28 S.E. 959; Newport News R., etc., Co. v. Newport News, 100 Va. 157, 40 S.E. 645.
For a city ordinance imposing a privilege tax on a telegraph company is not in conflict with § 4, art. 10, of the Constitution of this state permitting the legislature to impose a license tax on any business which cannot be reached by the ad valorem system. The tax imposed by the ordinance is a tax upon the privilege of doing business in the city, and is wholly different from a property tax. It is immaterial that the state taxes the property of the company on the ad valorem system. The two subjects of taxation are wholly different, and both may be taxed without being obnoxious to the objection that it is a double taxation. Postal Telegraph Cable Co. v. Norfolk, 101 Va. 125, 43 S.E. 207.
Telegraph Company--Interstate Commerce.--And a city ordinance imposing a privilege tax on the business of a telegraph company, done wholly between that city and other points within the state, and expressly excepting all foreign and interstate business, and telegrams sent to or received by the United States or this state, or their agents or officers, is not in contravention of the commerce clause of the constitution of the United States. Postal Telegraph Cable Co. v. Norfolk, 101 Va. 125, 43 S.E. 207.
Revocability.--By an ordinance of the city of Wheeling, a license to keep a house of entertainment is to expire and to be of no further effect on the 1st day of May next succeeding the date thereof. The council having in April granted such a license for the succeeding year, such grant did not vest in the party to whom it was granted, any absolute or vested right to such license; but the right did not become perfect until the actual emanation of the license, or until the 1st day of May following. Sights v. Yarnalls, 12 Gratt. 292.
And by the same ordinance the council has authority at any time to annual a license actually issued under its order. A fortiori it may rescind an order granting a license before the 1st of May, which has not issued. Sights v. Yarnalls, 12 Gratt. 292.
May Make Payment Condition Precedent.--The council being authorized by the charter of the city to assess a tax on licenses to keep ordinaries, in addition to the state tax, it was competent for the council to make the payment of the tax a condition precedent to the emanation of the license. Sights v. Yarnalls, 12 Gratt. 292.
In such case, though the tax was unequal, oppressive, and illegal, yet as its payment was a condition precedent to the emanation of the license, without the performance of the condition nothing passed under the grant. And the condition cannot be separated from the grant and disregarded, so as to render the grant absolute and unconditional. The whole must be taken together, and accepted or rejected. Sights v. Yarnalls, 12 Gratt. 292.
Including State Tax.--The council having by an ordinance assessed a tax on a license to keep an ordinary, and having granted a license " under existing rates of taxation," such grant must be taken to refer not only to the state tax, but the tax imposed by the council; and to require the payment of the latter as the condition of the right to call for the license. Sights v. Yarnalls, 12 Gratt. 292.
Modifying Terms of Grant.--The order granting the license having been made in April, if the tax then imposed was illegal, or if no tax had been assessed upon it at the time, it was competent for the council at any time before the 1st of May, to modify its grant by requiring the payment of a legal tax in lieu of that which was illegal, or to supply the omission to lay a tax upon ordinaries. And without the payment of this tax at least, the party to whom the license had been granted, had no right to demand it. Sights v. Yarnalls, 12 Gratt. 292. See monographic note on " Mandamus" appended to Dawson v. ThrustonHen. & M. 132.
License Fee Distinguished from Tax.--Under a city ordinance providing for the licensing of milk vendors, and requiring a graduated fee, used to pay the inspector, such license fee was not a tax assessed, but an inspection fee, designed as compensation for the inspection and license, and hence the ordinance was not invalid, under Acts 1895-96, p. 685, c. 625, providing that it shall be unlawful for any city to impose or collect any tax on a person selling farm or domestic products within its limits, and not within a regular market house of a city. Norfolk v. Flynn (Va.), 44 S.E. 717.
City Tax on Carriers--Construction.--An ordinance of a city imposing a tax upon persons hauling freight or passengers over its streets, and providing the penalty for its violation by a person engaged in some business, occupation or profession for the conduct of which a license is required, does not apply to merchants in business across the state line who use the streets of the city to deliver, by their teams, goods to their customers therein, or to the railway station therein. Dooley v. Bristol (Va.), 46 S.E. 296.
V. SUCCESSION TAXES.
A collateral inheritance tax cannot be regarded in a proper legal sense as a tax upon property, but is a tax upon the transmission of property by devise or descent to collateral kindred, on the principle of requiring a party thus taking the benefit of a civil right, secured to him under the law, to pay a certain premium for its enjoyment; and whether the tax is paid by the personal representative before he turns over the estate to the party entitled, or by the latter after he receives it, the effect is the same. Hence, the constitutional requirement as to uniformity and equality does not apply to such a tax, and if it did, the tax is as uniform as in the nature of things it can be. Eyre v. Jacob, 14 Gratt. 422, 430. See 6 Va. L. Reg. 606; Helfrick v. Com., 29 Gratt. 844.
Miller v. Com., 27 Gratt. 110; Barrett v. Com., 27 Gratt. 110, where exemption was soughton the ground, that the beneficiary was a charitable institution, and the court said that it is illogical and unreasonable to conclude that because the property of such institution, after it is acquired, is exempted from taxation, that therefore they would be relieved from paying a premium or tax on the civil right or privilege of acquiring property by devise. Schoolfield v. Lynchburg, 78 Va. 366.
That the general assembly of Virginia, in the absence of a constitutional prohibition, does possess the power to tax a civil right or privilege like this, is beyond all question, and it possesses it both by virtue of its general and comprehensive power of taxation, and from the very nature of the subject itself, the disposal of the property of decedents being absolutely under its control. Eyre v. Jacob, 14 Gratt. 422; Miller v. Com., 27 Gratt. 110; Barrett v. Com., 27 Gratt. 110; Peters v. City of Lynchburg, 76 Va. 927, (the first case in which this question came up under the constitution of 1869.)
The sections of the Code of 1850) providing, for a collateral inheritance tax, and the acts of 1853-4 and 1855-6, amendatory thereof, were in full force in 1850, not having been repealed expressly or by implication. Eyre v. Jacob, 14 Gratt. 422. And probably also in 1856, in spite of the omission of the legislature in the tax law of 1855-6, to fix any rate of taxation on collateral inheritances. Eyre v. Jacob, 14 Gratt. 422.
But this expression of dictum is negatived by Fox v. Com. (1860), 16 Gratt. 1, where it is expressly held that the tax law of 1855-6 was a perfect tax law intended to cover the whole subject and did repeal by implication the tax on collateral inheritances. Lee, J., dissentiente. See foot-note to Eyre v. Jacob, 14 Gratt. 422; monographic notes on " Municipal Corporations" appended to Danville v. Pace, 25 Gratt. 1; " Constitutional Law" appended to Com. v. Adcock, 8 Gratt. 661.
The mention of certain subjects of taxation in § 25, art. 4 of the Constitution, was not meant to be exhaustive, and the right to lay such a tax as this is not to be denied on the principle, expressio unius exclusio estalterius. Eyre v. Jacob, 14 Gratt. 422.
In Schoolfield v. Lynchburg, 78 Va. 366 at 370, approving the doctrine of Eyre v. Jacob, it is said that the question as the constitutionality of a state tax on collateral inheritances may be said to be settled in the affirmative. But the power to impose such a tax had not been conferred on the city of Lynchburg under its charter, or by § 33, ch. 54, of the Code of 1873, such a tax not being a property tax, though the power of the legislature to so delegate the power was conceded. On this point the court was equally divided in Peters v. Lynchburg, 76 Va. 927.
Section 33, ch. 54 of the Code of 1873--now § 1043 of the Code of 1887--has been held to apply to cities of the state as well as to the towns, and was adopted for uniformity by the legislature. Schoolfield v. Lynchburg, 78 Va. 366, 369. It now expressly includes cities.
VI. SITUS FOR TAXATION.
Vessels.--Vessels, the property of a foreign corporation and plying on the navigable waters of a state, between points situated therein, and used in the main, so far as they were engaged in interstate commerce, to receive freight and passengers on through tickets and bills of lading to points outside the state, and convey them to points in the state on deep water, there to be transferred to the vessels of the same corporation for the rest of the journey, although they are enrolled at a port outside of the state, and engaged in part, as above, in interstate commerce, have nevertheless a legal situs within the state, and are amenable to state taxation. Old Dominion S. S. Co. v. Commonwealth (Va.), 46 S.E. 783.
The fact that tugs and barges are engaged in interstate commerce does not exempt them from taxation; nor does the place of their enrollment or registration fix their situs for taxation, though it is a circumstance to be considered. In the case in judgment, they are owned by a Virginia corporation, are used exclusively in the transportation of coal from a given point in this state to various points in other states, and are not assessed for taxation elsewhere in or out of the state of Virginia. Under these circumstances, they are probably taxable in this state, in the county where they are always loaded. Norfolk & Western Ry. Co. v. Board of Public Works, 97 Va. 23, 32 S.E. 779.
Railroad Rolling Stock.--In the absence of legislation to the contrary, the rolling stock of a domestic railroad company is properly taxable in the county of its domicile, which is where it has its chief office. Atlantic, etc., R. Co. v. Lyons, 101 Va. 1, 42 S.E. 932.
Guardianship Funds.--Although a guardian qualify as such in one city of this state, and at that time he and his ward reside there, and the funds of the ward are held there, and the guardian settles all of his ex parte accounts before a commissioner of the court of that city, yet if the guardian and ward subsequently remove to another city of this state, and the funds of the ward are invested in the latter city, such funds are properly taxable in the latter city and not in the former. Hughes v. Staunton, 97 Va. 518, 34 S.E. 450. See monographic notes on " Municipal Corporations" appended to Danville v. Pace, 25 Gratt. 1; " Banks and Banking" appended to Bank of the Valley, etc., v. Marshall, 25 Gratt. 378.
VII. LIEN FOR TAXES.
Of Statutory Origin.--Taxes are not a lien upon lands, unless made so by express language of the statute or by fair implication from the statutory language, and the Code of 1869, for the first time, made township school-taxes a lien on land. Board of Education v. Old Dominion, etc., Co., 18 W.Va. 441, 447.
And to give it a retrospective operation, so as to apply to the taxes of preceding years, when not expressly made so, would be entirely subversive of every principle of correct interpretation of statute. Board of Education v. Old Dominion, etc., Co., 18 W.Va. 441.
Superior to All Other Liens.--The lien for taxes assessed on land is superior to a prior deed of trust to secure the payment of money. Tax sales are made clear of prior encumbrances. Simmons v. Lyles, 32 Gratt. 752; Stevenson v. Henkle, 100 Va. 591, 42 S.E. 672. See post, " Force of Sale" IX. F. 8.
Indeed it is said in Thomas v. Jones, 94 Va. 756, 27 S.E. 813, that taxes are prior in dignity to all other liens, must be so from the very necessity of the case, otherwise the state would be powerless to collect her revenue. Stevenson v. Henkle, 100 Va. 591, 42 S.E. 672. See Mullan v. Carper, 37 W.Va. 215, 16 S.E. 527.
Overrides Exemptions.-- Quoere, whether § 48, art. 6, of our Constitution, which declares, " that no property shall be exempt from sale for taxes due thereon," limits the right to sell the exempted property to the taxes assessed upon it alone, or may be sold for taxes assessed upon other property and levied upon it. It would seem that the former is the correct view. Stanley v. Hubbard, 27 W.Va. 740.
Of City of Richmond--Limitation.--There is no limitation on the time within which the city of Richmond may enforce the lien which it has under its charter for taxes assessed by the city on real estate therein. The city charter prescribes no limit, and the amendment to § 674 of the Code, approved January 18, 1888, leaves the rights of the city unaffected by § 636 of the Code. Powell v. Richmond, 94 Va. 79, 26 S.E. 389.
No opinion expressed as to the effect of § 636 on the lien upon real estate for taxes and levies assessed by authority of state or county, or indeed of any city or town except the city of Richmond. Powell v. Richmond, 94 Va. 79, 26 S.E. 389.
Accruing during Life Estate Bind Only That Interest--Taxes and levies, whether assessed by the state or the city of Richmond, which accrue during the estate of a tenant for life, are liens on the estate of the life tenant only, and not on the estate of the remainderman, and cannot be enforced against the latter. Tabb v. Commonwealth, 98 Va. 47, 34 S.E. 946.
But see quoere expressed in a later case, as to whether the taxes due by the life tenant, the same having accrued during her lifetime, are a lien on the estate of the remaindermen. Downey v. Strouse, 101 Va. 226, 43 S.E. 348.
Upon the Rents.--It is the duty of the life tenant of real estate to pay the taxes thereon, and, if he refuses to do so, the remaindermen may have the rents thereof appropriated to that purpose. If one of the remaindermen occupies a part of the real estate as tenant of the life tenant, and receives the rents of the residue thereof, and voluntarily furnishes the life tenant with supplies from his store, he cannot apply the whole of such rents to his individual account to the exclusion of the taxes, and years afterwards call upon his coremaindermen to contribute to reimburse him for taxes previously paid by him at the instance of the life tenant. This would be depriving them of their right to have the rents subjected to the lien thereon for taxes, and requiring them to contribute to the bounty bestowed by him upon the life tenant. Downey v. Strouse, 101 Va. 226, 43 S.E. 348.
Deduction of Taxes from Rent.--Where leased property, when a long lease thereof was sold, was only valuable for the sand taken from it, and the purchaser builds upon it, and makes extensive improvements, he is entitled to deduct from the rent the taxes upon the property as he purchased it, but not the taxes occasioned by his improvements. Mayo v. Carrington, 19 Gratt. 74.
Should Be Discharged by the Heirs.--Upon the death of the owner intestate, his real estate descends upon his heirs. It is charged to them upon the commissioner's books, and to them exclusively the law looks for the payment of the accruing taxes. Simmons v. Lyles, 32 Gratt. 752.
But the commonwealth having a lien on the property for taxes, may enforce that lien against the widow, not because she is personally liable, but because the estate is bound for the commonwealth's dues, even in the hands of an innocent alienee. And if, through the default of the heir, the widow, to save her estate, is compelled to pay what the law requires him to pay, she may compel him to refund the amount so paid for his benefit. Simmons v. Lyles, 32 Gratt. 752.
Subrogation.--A commissioner to whom a creditor's suit was referred to take an account of liens, made his report of the liens, and subjoined: " to this sum must be added 'back taxes' on defendant's land amounting to $ 491.70." The report was excepted to, amongst other reasons, because the tax tickets were barred by limitation. The taxes were for the years 1884, 1885 and 1886, and the order for the account was entered in September, 1887. There was nothing on the face of the report to show the interest of the appellant in the back taxes; nothing to show that he had paid them, or had done any act which entitled him to be subrogated to the rights of the state and county. A decree in favor of the appellant for the amount of the back taxes, upon a rehearing, granted on the application of the defendant, was set aside, and it was decided that appellant was not entitled to be subrogated to the rights of the state and county for the back taxes. Held : It was right to set aside the decree, but instead of deciding that the appellant was not entitled to be subrogated to the rights of the state and county, the case should have been referred to a commissioner to enquire and report upon the claim of the appellant to the lien asserted by him. The lien was not barred by the statute of limitations, and the appellant should have had an opportunity of making proof of his claim. Repass v. Moore, 96 Va. 147, 30 S.E. 458.
Payment by Sheriff--Remidiless against Owner.--If, therefore, under the Code of Virginia of 1860, a sheriff settled in full with auditor, and paid all the state taxes not returned delinquent, he cannot thereafter, by destraint, or in any other manner, make out of any taxpayer not returned delinquent the amount of his taxes so advanced for him by the sheriff, as he cannot be subrogated to the state's rights or remedy for such tax; nor can he in any manner make it out of his estate, real or personal, either before or after his death; and when he has made this settlement and payment in full to the auditor, without any promise expressed or implied by the taxpayer to refund him the amount, he cannot recover it of him in any action of assumpsit or any other action; nor can he make the amount of these taxes out of his estate either as taxes or as a debt due to him. Hinchman v. Morris, 29 W.Va. 673S.E. 863. But see post " In General" IX, A; Lipscomb v. Winston, 1 Hen. & M. 453.
For Taxes Assessed after Owner's Death--Priorities.--The lien of the commonwealth on land for taxes assessed thereon after the death of the owner is superior and paramount to the right of creditors of the decedent to subject the land to the payment of their debts. Where this lien has been perfected by a sale of the land for delinquent taxes and a purchase thereof by the commonwealth, she stands as a purchaser for value. If she offers to relinquish her title only upon payment of the taxes justly due, creditors of the decedent cannot complain. While the real estate of a decedent is assets for the payment of his debts, that fact alone does not give a lien on his real estate for the payment of such debts, nor does a judgment against the personal representative of the decedent constitute such lien. Commonwealth v. Ashlin, 95 Va. 145, 28 S.E. 177.
VIII. EXEMPTIONS.
A. POWER GENERALLY.
Power of Municipal Corporation to Exempt Property It Is Authorized to Tax.--A municipal corporation has no inherent power to exempt from taxation any property which, by its charter, it is authorized to tax. The power to exempt from taxation, like the power to tax, is an incident to sovereignty, and cannot be exercised by a municipal corporation unless such power has been granted by the state. Thomas v. Snead, 99 Va. 613, 39 S.E. 586. See monographic notes on " Municipal Corporations" appended to Danville v. Pace, 25 Gratt. 1; " Constitutional Law" appended to Com. v. Adcock, 8 Gratt. 661.
Power of Legislature.--Although there are some expressions of opinion in our cases upon the subject, it is still an open question, whether, under the provisions of art. 10 of the Constitution the legislature has the power to exempt property from taxation beyond the subject named in § 3 of that article. See Williamson v. Massey, 33 Gratt. 237; Whiting v. West Point, 88 Va. 905, 14 S.E. 698; Thomas v. Snead, 99 Va. 613, 39 S.E. 586,
See quoere, by Burke, J., as to whether the power of exemption under the constitution is without limitation, and extends to property generally, in the uncontrolled discretion of the legislature. Williamson v. Massey, 33 Gratt. 237. See foot-note to this case.
Art. 10, § 11 of the Virginia Constitution of 1869, was not intended to require the legislature to tax all the property in the state, and forbid its exercising its inherent power, when necessary for the public interest, and promotive of a sound public policy, to exempt certain property from taxation, but only to prescribe a rule by which the legislature should be guided, in apportioning taxation, that all property taxed should be taxed in proportion to its value. Williamson v. Massey, 33 Gratt. 237. See foot-note to this case.
The right to exempt from taxation is a right which is incident to the legislative prerogative. It is essential to the welfare of the state that the power of exemption should be vested in the government, and it is as inherent in the legislative department as the power of taxation, and may be exercised by the legislature at its discretion, except where it is clearly forbidden by the organic law. City of Richmond v. Richmond and Danville R. R. Co., 21 Gratt. 604; Williamson v. Massey, 33 Gratt. 237; Probasco v. Moundsville, 11 W.Va. 501; Danville v. Shelton, 76 Va. 325.
The clear meaning of the Constitution of 1863 (art. 8, § 1), is that all property, both real and personal, shall be taxed, except such as the legislature, under the exception contained therein, may lawfully exempt. Chesapeake, etc., R. Co. v. Miller, 19 W.Va. 408.
By this section the legislature was prohibited to pass a law exempting the property of a railroad corporation from taxation. Chesapeake, etc., R. Co. v. Miller, 19 W.Va. 408.
Necessary Uniformity.--And uniform taxation requires uniformity, not only in the rate of taxation, and in the mode of assessment upon the taxable valuation, but that uniformity must be coextensive with the territory to which it applies. If a state tax is imposed, it must be uniform over the whole state; if by a county, city, town or other subordinate district, the tax must be uniform throughout the territory to which it is applicable. Day v. Roberts, 101 Va. 248, 43 S.E. 362.
Governor's Power--Auditor's Instructions.--The governor, having jurisdiction of the subject, decided that the effect of the decision of the supreme court of appeals in Railway Co. v. Miller, Auditor, 19 W.Va. 408, was to declare unconstitutional and void so much of § 43, ch. 12 of the Acts of 1881, as exempted from taxation certain property therein specified, and that said ch. 12 was a complete tax law without said portion of said section, and requested the auditor, who has the oversight of the assessors in the various counties and districts in the state, to instruct the said assessors in their assessments to disregard said portion of said section and assess the property therein attempted to be exempted, and the auditor gave said instructions. The law so construed by the chief executive and given by the auditor in his instructions to the assessors was binding on them. State v. Buchanan, 24 W.Va. 362.
Recourse of Citizens to Courts.--The constitutionality of said § 43 can be tested by the taxpayer, when the law, as so declared by the governer, is made to operate on him. It is then his right, as a citizen, to resort to the court by the proper proceedings and have it decided, whether the property claimed by him to be exempt under said § 43, ch. 12, Acts of 1881, is liable to be assessed; and if the court should decide against him, he could then appeal to the supreme court of appeals, which would either sustain said § 43 or declare it unconstitutional, so far as it attempted to exempt said property. State v. Buchanan, 24 W.Va. 362.
B. EXEMPTIONS USUALLY NOT CONTRACTS. --Where exemptions are found in tax laws, they are usually nothing more than directions to the tax officers, and not undertakings or contracts with any body, and hence are usually repealable. Probasco v. Moundsville, 11 W.Va. 501; Powell v. Parkersburg, 28 W.Va. 698.
Charter Provisions.--Conceding that the legislature may exempt property from taxation, and that such an exemption for valuable consideration is a contract within the protection of the federal constitution, where one R. R. Co. under its charter was exempt from taxation on its property, another company, succeeding to the first under an act conferring upon it all of the benefits given by the charter of the first company, including the exemption of its property from taxation, nevertheless is not exempt from taxation on the property it held prior to that time, or acquired subsequently. Com. v. C. & O. R. Co., 27 Gratt. 344.
But the second company is exempt from taxation on the property of the first company which it acquired by its succession thereto. Com. v. C. & O. R. Co., 27 Gratt. 344. See C. & O. Ry. Co. v. Miller, 19 W.Va. 408, where it is held that the property of C. & O. Ry. in W. Va., acquired and held under practically the same constitutional and statutory provisions, was not exempt, because the state had no power to grant any exemption from taxation not expressly provided for in the constitution. The two cases are irreconcilable.
Thus, by the ruling of the Virginia court in Com. v. C. & O. R. Co., 27 Gratt. 344, that portion of the roadbed, and property belonging to it, and a fair proportion of the rolling stock and earnings, was declared to be exempt from taxation.
Repeal of Exemptions Conferred by Charter.--No part of the act of November 5th, 1863, extending the corporate limits of Parkersburg, a city of less than ten thousand inhabitants, and exempting in whole or in part certain unimproved lands so included within its limits, was repealed by the adoption of the constitution of 1872, nor was the same violative thereof, nor of the constitution of 1863, nor was such act repealed by ch. 141 of the Acts of 1872-3. Powell v. Parkersburg, 28 W.Va. 698.
But § § 30, 31, 41, ch. 47 of the Code, and, § § 101, 103, ch. 54 of the Acts of 1875, conferred additional power on the city of Parkersburg, and in effect so amended its charter, as to remove the limitations and restrictions to impose city taxes upon the lands so annexed thereto, and exempted from such taxes by the act of November 5th, 1863. Powell v. Parkersburg, 28 W.Va. 698. And the city of Parkersburg is authorized to levy, taxes for city purposes on all property within its limits, according to its value and a uniform rate of taxation. Powell v. Parkersburg, 28 W.Va. 698.
C. PARTICULAR EXEMPTIONS.
Exemption of Railroad until Its Income Was over Six Per Cent.--As property cannot belong to an incorporated company without being vested in it, and the respective shareholders in such an incorporated company constitute the company, therefore, property belonging to the company is vested in the shareholders in their corporate capacity and not as individuals or natural persons, and is consequently taxable in the name of the company. Baltimore & O. R. Co. v. Supervisors, 3 W.Va. 319; Baltimore & O. R. Co. v. Wheeling, 3 W.Va. 372.
The phrase " liable to general taxation" in the above act of March 6th, 1847, means that the property of the company was liable to all taxation for state, county and local purposes. Baltimore & O. R. Co. v. Supervisors, 3 W.Va. 319; Baltimore & O. R. Co. v. Wheeling, 3 W.Va. 372.
As the condition under which the taxing power was to be exercised had happened, and no legislative declaration was necessary or could be binding on the company, there was no violation of the charter in assessing taxes on the property of the company, and hence no interference with vested rights. Baltimore & O. R. Co. v. Supervisors, 3 W.Va. 319; Baltimore & O. R. Co. v. Wheeling, 3 W.Va. 372.
The question as to when the property of a railroad company becomes taxable under such a proviso as the said 7th section, is a question of fact, to be determined, if disputed, by a resort to the judicial tribunals of the state. No act or resolution of the legislature is required by the terms of the proviso, nor would be conclusive of the fact and binding on the company. Baltimore & O. R. Co. v. Supervisors, 3 W.Va. 319; Baltimore & O. R. Co. v. Wheeling, 3 W.Va. 372.
The 7th section of the act of the general assembly of Virginia, passed March 6th, 1847, means that taxes may be assessed whenever the net income of the entire road of the B. & O. R. Co., shall exceed six per centum per annum on the capital invested, and not when the net income on that portion of the road being within the state of Virginia, and West Virginia since its creation, exceeds that amount on the capital invested in said states of Virginia and West Virginia. Baltimore & O. R. Co. v. Supervisors, 3 W.Va. 319; Baltimore & O. R. Co. v. Wheeling, 3 W.Va. 372.
Exempting Town from County Taxes.--Under § 1, art. 10, of the Constitution of this state (1869), providing that " taxation, except as hereinafter provided, whether imposed by the state, county or corporate bodies, shall be equal and uniform," the legislature has no power to exempt the taxable persons and property in a town situated within the limits of a county and forming a part thereof, from school taxes and county levies. A part of a county cannot be made to bear all the burden of taxation for county purposes. Day v. Roberts, 101 Va. 248, 43 S.E. 362.
And a town charter which attempts to relieve property situated within the town from such county taxes, is void. Day v. Roberts, 101 Va. 248, 43 S.E. 362.
Thus in Robertson v. Preston, 97 Va. 296, 33 S.E. 618, and in Washington Co. Supervisors v. Saltville Land Co., 99 Va. 640, 39 S.E. 704, it was held that the legislature had no power to exempt from county public school taxes any property assessed with state tax within the county. Day v. Roberts, 101 Va. 248, 43 S.E. 362.
The right of the county to impose the tax is conferred by art. 8, § 8, of the Constitution (1869), and cannot be taken away by the legislature. Supervisors v. Saltville L. Co., 99 Va. 640, 39 S.E. 704.
For the town of Smithfield is as much a part of the county of Isle of Wight, both as to territory and government, as the county is a part of the state. The people of and the property in a town are as much within the jurisdiction of a county for all county purposes as if the town of Smithfield had never been incorporated. Washington Co. Sup'rs v. Saltville Land Co., 99 Va. 640, 645, 39 S.E. 704; Day v. Roberts, 101 Va. 248, 43 S.E. 362.
County Road Tax.--In the absence of constitutional restrictions, the legislature may impose upon a taxing district, such as a town, the duty of keeping in repair the streets and roads within, and relieve it from taxation for roads without, its limits. The legislature judges finally and conclusively upon this question. Section 2, art. 7 of the Constitution of this state does not restrain the legislature in this respect, and it may exempt lands lying within a town from the payment of a county road tax. Supervisors v. Saltville L. Co., 99 Va. 640, 39 S.E. 704.
Thus, the act of February 22, 1890, erecting the town of Pulaski into a separate road-district of Pulaski county, repealed the general law so far as it authorized the board of supervisors of Pulaski county to levy a road tax on property in the town of Pulaski, and after the passage of that act, the board had no power to levy such tax for the tax year beginning on the first Monday of July, 1889, and ending the first Monday of July 1890. Bertha Zinc. Co. v. Board Supervisors Pulaski Co., 88 Va. 371, 13 S.E. 740.
Cities--Different Rule.--A city is entitled, under the provisions of art. 7 of the constitution, to a separate government, and when incorporated is no part of the county for governmental purposes. But this is not true of a town. Its people and property are still subject to the county government for county purposes. Supervisors v. Saltville L. Co., 99 Va. 640, 39 S.E. 704.
Exemption of State Bonds--Constitutionality.--The act of March 28, 1879, in relation to the settlement of the state debt, which provides that all obligations created under this act shall be forever exempt from all taxation, direct or indirect by the state, is not in violation of art. 10, § 1 of the Constitution of Virginia. Williamson v. Massey, 33 Gratt. 237.
Merchant's Capital.--The capital actually employed by a merchant in his business is exempt from taxation for state purposes (Acts 1889-90, p. 197, § § 27, 28), and hence cannot be taxed for county purposes. Supervisors v. Tallant, 96 Va. 723, 32 S.E. 479.
Buildings Belonging to U.S.--Where, by agreement between the United States government and the owner of land, the government erects buildings on land intended to be and actually used by operatives employed by the government in dressing stone to be employed in the erection of public buildings at Washington: and under the agreement the government has the right to remove the buildings, the buildings are personal property, and being the property of the United States, the state cannot tax them either as personal property or as parcel of the land on which they are built. Andrews v. Auditor, 28 Gratt. 115.
When buildings put up on the land of another are exempted by law from taxation, they should not be valued with the land, and the owner of it is not to be charged with their value as part of his land subject to taxation. But where such buildings are not exempt from taxation, they should be valued and the tax charged to the owner of the land. Andrews v. Auditor, 28 Gratt. 115.
Notes or Bonds for Price at Judicial Sale.--Notes or bonds in the possession of a commissioner of a court, which were executed for the purchase price of real or personal property sold under a decree of the court, are not subject to taxation, and should not be listed for taxation under the Act of March 4, 1896 (Acts 1895-6, c. 705, p. 773). This act does not increase the subjects of taxation, but simply prescribes a different method of assessment from that prescribed by § 493 of the Code. Fulkerson v. Bristol, 95 Va. 1, 27 S.E. 815.
Under neither act are such bonds taxable, but if they have been listed for taxes, relief can only be had by motion before the proper court within two years after delivery to the treasurer of the books in which the taxes are entered. In the absence of evidence to show when the books were so delivered, it will be presumed that they were delivered within the time prescribed by law. Fulkerson v. Bristol, 95 Va. 1, 27 S.E. 815.
R. R. Bonds Held by Nonresidents.--The state cannot tax the bonds of a railroad company held by persons living out of the state. Com. v. Chesapeake & O. R. Co., 27 Gratt. 344.
Salaries of Ministers of the Gospel.--The act of Feb. 26th, 1846, imposing a tax on incomes accruing to individuals . . . . in the . . . employment of . . . any individual or individuals, referred only to incomes from secular " employments" or business, and did not apply to the salary paid a minister of the Gospel by his congregation, for he is not, in a secular sense at least, in the employment of his congregation. Plumer v. Com., 3 Gratt. 645. (Two judges dissenting.) But see present law which includes the income of any individual. Acts 1897-8, p. 526.
D. REPEAL OF EXEMPTION.
Railroad Charter--Consolidation.--The 17th section of the charter of the Petersburg Railroad Company, which exempted the property of the company from taxation, was repealed by the act of April 2, 1853, which united it with the Greenesville and Roanoke Railroad Company, which act was accepted by the company, and the property of the said company became subject to taxation. Petersburg v. Petersburg R. R. Co., 29 Gratt. 773.
Property of a railroad company being taxable like all other property unless exempted by its charter, where one railroad company, by its original charter, was exempted from taxation on its property, but had accepted benefits from the legislature on condition that the legislature should have the power to tax it, and that it should be subject to the general railroad law, a second company, succeeding to the first by purchase under an act conferring upon it all the rights, franchises, privileges and immunities granted at any time by the state to the first company, did not succeed to the exemption except as subsequently modified, and fell, like the old company, into the class of railroads holding repealable charters, and was subject to taxation by the legislature. Seaboard & R. Co. v. Supervisors of Norfolk County, 83 Va. 195S.E. 278.
Repeal by Implication.--Where a city charter exempted from city taxes certain real estate under certain conditions, and by a later legislative enactment, general in its terms and expressly declared to be intended as an amendment of previously granted municipal charters, where it conferred greater powers than were conferred by them, there was given to all towns and villages, the power to tax all real and personal estate therein, subject to state and county taxes, the exemption is thereby repealed by necessary implication. Powell v. Parkersburg, 28 W.Va. 698; Probasco v. Moundsville, 11 W.Va. 501.
Lot for Ferry Landing.--A lot in the city of Norfolk, owned and used by county of Elizabeth City and city of Portsmouth as landing for ferry maintained by them, is exempt from taxation under Acts of 1881-2, p. 382. Black v. Sherwood, 84 Va. 906, 6 S.E. 484.
IX. COLLECTION OF TAXES.
A. IN GENERAL.
By Suit.--When a municipal tax is declared to be a lien, and no mode of collection is prescribed by the statute, and no power to collect by sale exists, such lien may be enforced in equity by the municipal corporation instituting the suit, but such a suit to enforce such a lien could not be brought by an assignee of the municipal corporation, for though a lien for a debt may be enforced in equity by an assignee of the debt, yet a tax is not a debt, and the right of the municipality to bring such a suit in equity is a purely statutory right, which must be either expressly given or be given by fair implication. Board of Education v. Old Dominion, etc., Co., 18 W.Va. 441; Hinchman v. Morris, 29 W.Va. 673S.E. 863.
And though it is declared to be a lien, if there is a specific statutory mode of collection provided, it must be pursued, and no suit can be maintained to enforce the lien. Board of Education v. Old Dominion, etc., Co., 18 W.Va. 441; State v. B. & O. R. Co., 41 W.Va. 81, 23 S.E. 677.
So, in Virginia, taxes can only be assessed, levied and collected in the mode pointed out by the statute. When the state or a county has assessed and levied a tax, they are severally clothed with power to take the personalty by distress, and the realty by sale, for taxes in the most summary manner. And, although it be expressly declared that the tax shall be a lien on the property assessed, neither the state nor the county can maintain an independent suit in chancery to enforce such lien. Marye v. Diggs, 98 Va. 749, 37 S.E. 315.
If, however, a suit in chancery for a sale of land be already pending, the state or county may, in accordance with a general practice in this state, come into such suit for the purpose of collecting a tax from the proceeds of such sale. This power a court of equity may exercise in order to clear the title it proposes to sell. A person is sometimes allowed to become a party by petition when he could not maintain an independent suit for the same cause of action. Commonwealth v. Ashlin, 95 Va. 145, 28 S.E. 177, distinguished. Marye v. Diggs, 98 Va. 749, 37 S.E. 315.
As was said in State v. Baltimore & O. R. Co., 41 W.Va. 81, 23 S.E. 677: " The legislature of the old state did not give the remedy by suit. Its courts did not recognize such suits. Strange, if it existed, that the long lapse of judicial history does not show it. The Virginia cases cited do not show it. Lipscomb v. Winston, 1 Hen. & M. 453, was where a party had promised the sheriff to pay, if indulged. Mayo v. Carrington, 19 Gratt. 74, was a case where taxes paid were deducted by a tenant out of rent by agreement."
Tax Not a Debt.--A municipal tax, in its essential characteristics, is not a debt, or in the nature of a debt, in its mode of collection and enforcement. It is an impost levied by the authority of the government on its subjects for public purposes. It is not founded on contract, but operates in invitum. Board of Education v. Old Dominion, I. M. & M. Co., 18 W.Va. 441; Dunn v. Renick, 40 W.Va. 349, 22 S.E. 66; Hinchman v. Morris, 29 W.Va. 673S.E. 863.
A debt universally bears interest, while a tax never carries interest, except when expressly given by statute. Board of Education v. Old Dominion, etc., Co., 18 W.Va. 441.
So a statute abolishing imprisonment for debt does not prevent imprisonment for the nonpayment of taxes. Board of Education v. Old Dominion, etc., Co., 18 W.Va. 441.
For a like reason a debt is the subject-matter of set-off and is liable to set-off, but a tax is neither. Board of Education v. Old Dominion, etc., Co., 18 W.Va. 441.
Township School Taxes.--" Until the passage of our Code (1869) the lands in the state were clearly not intended to be made liable in any manner to the payment of the township school taxes. The laws before the passage of our Code provided for their collection by distress and by the garnishment of the debtors of the delinquent taxpayers and in no other manner." Board of Education v. Old Dominion, I. M. & M. Co., 18 W.Va. 441. Such being the case, no suit in equity could be brought to inforce their collection, as the specific statutory method must be pursued. Board of Education v. Old Dominion, I. M. & M. Co., 18 W.Va. 441.
Sheriffs as Collector--Power to Appoint Others.--The collectors of the public taxes were the sheriffs, prima facie ; and if they could not, or would not, give security, the courts were empowered to appoint collectors. The overseers of poor had not authority before act of 1792 to appoint collectors in any case. Winston v. Overseers of the Poor, 4 Call 357.
It was made the duty of the sheriff, by ch. 83, § 1 of Acts of 1870, p. 91, to collect all school taxes assessed in his county. State v. Hill, 17 W.Va. 452.
Indulgence--Effect.--A sheriff who indulged a man for his taxes, in consideration of which the latter agreed to indemnify him by paying all damages which the commonwealth might recover of him in consequence of his failing in due time to pay the said taxes into the treasury, was allowed to recover the amount of such taxes, with lawful interest. from the times when respectively payable. Lipscomb v. Winston, 1 Hen. & M. 453; Clevinger v. Miller, 27 Gratt. 740. See ante, " Situs for Taxation" VI.
Certificates--Valuation.--Part of taxes being payable in certificates, the value of the certificates at the time when payable was decided to be the rate at which they ought to be allowed; and not the value at the time of making the allowance. Lipscomb v. Winston, 1 Hen. & M. 453.
In Name of Governor.--Taxes collected, might, under the acts of 1794, 1798, have been recovered in the name of the governor. Branch v. Randolph, 5 Call 546.
Local Assessments--Recover by Motion.--Under the act of 1796, c. 31, authorizing the mayor and commonalty of Alexandria to recover by motion the amount of moneys assessed for paving the streets, a judgment (in terms), " and also for the taxes of the town," cannot be sustained; notwithstanding, from the account exhibited, it appeared that such judgment was actually intended to be for no more than the sum due for such assessments. Alexandria v. Chapman, 4 Hen. & M. 270; Mayor, etc., v. HunterMunf. 228.
In such case the notice must state the true amount of the assessments for paving, due from the defendant. Mayor v. HunterMunf. 228.
The defendant having proved, in opposition to such motion, that he had personal property in Alexandria of greater value than the amount of assessment; quoere, is he bound, moreover, to prove that the serjeant of the town had knowledge of such property, and that a distress could have been levied upon it? Alexandria v. Chapman, 4 Hen. & M. 270.
By Motion When Coupons Tendered.--Under the Virginia act (acts of extra Sess., 1887, p. 257) providing for the recovery by motion in the name of the commonwealth of taxes due the commonwealth, in payment of which coupons from state bonds had been tendered in payment and not accepted, the corporation court of the city of Winchester had no jurisdiction to entertain the action, and that act provides for suits in the circuit courts only. Smith v. Clark, 1 Va. Dec. 714.
Motion under ch. 35 of Code of W. Va.--A motion under ch. 35 of the Code, will not lie to recover taxes assessed under § 67, c. 29, upon the property of a railroad company. State v. Baltimore & O. R. Co., 41 W.Va. 81, 23 S.E. 677.
Appointment of Collector by Auditor.--Under § 34 of Code, ch. 60, the auditor may appoint a collector to collect such delinquent taxes for a compensation, previously agreed on, and approved by the executive, of twenty per centum of the amount collected and paid into the treasury. Allen v. Commonwealth, 83 Va. 94, 1 S.E. 607.
Acts 1878-79, ch. 60, § 34, p. 329, not applicable to railroad taxes, which are payable directly into the state treasury, but only to tax tickets certified as delinquent and uncollectible, as prescribed in § § 24 to 28 inclusive. Allen v. Commonwealth, 83 Va. 94, 1 S.E. 607.
Where certain railroad tax tickets are placed by the auditor of public accounts in the hands of a county treasurer, who collects and pays the taxes into the state treasury, and whose compensation prescribed by statute (Acts 1878-79, ch. 60, § 30, p. 328,) for this service, is only two and one-half per centum, but the auditor pays him twenty per centum, the auditor is liable to an action for the excess. Allen v. Commonwealth, 83 Va. 94, 1 S.E. 607.
B. ENJOINING ILLEGAL TAXES. --The collection of an illegal tax cannot be enjoined upon the sole ground that it is illegal, and a bill for an injunction to stay the collection of taxes must tender or offer to pay such taxes as are conceded to be due, or as the court can see ought to be paid, as a condition precedent to the granting of such relief. Blue Jacket, etc., Co. v. Scherr, 50 W.Va. 533, 40 S.E. 514.
A court of equity has jurisdiction to restrain by injunction the collection of an illegal levy upon the property of a school district, made by the board of education, in a suit brought by and on behalf of the resident taxpayers of such district. Winifrede Coal Co. v. Board of Education of Cabin Creek, 47 W.Va. 132, 34 S.E. 776.
Necessary Allegations.--In a bill of this character it is not sufficient to allege in general terms that the time the levy was laid there was no legal existing indebtedness against the board of education created in any manner authorized by law, but facts must be alleged to show the illegality of the levy. Winifrede Coal Co. v. Board of Education of Cabin Creek, 47 W.Va. 132, 34 S.E. 776.
The case must be brought under some acknowledged head of equitable jurisdiction. Williams v. County Court, 26 W.Va. 488; Douglas v. Harrisville, 9 W.Va. 162; Corrothers v. Board, 16 W.Va. 527; Christie v. Malden, 23 W.Va. 667.
Although the W.Va. statute (Code, p. 1062) provides a mode for superseding an illegal or erroneous levy upon the petition of ten taxpayers, etc., this statute does not, by its terms, take away equity jurisdiction; and following the ruling in Corrothers v. Board, 16 W.Va. 527, is to be considered as merely cumulative. See Wells v. Board, 20 W.Va. 157; Winifrede Coal Co. v. Board of Education, 47 W.Va. 132, 34 S.E. 776. See monographic note on " Injunctions" appended to Claytor v. Anthony, 15 Gratt. 518.
C. PAYMENT OF AND LIABILITY FOR TAXES.
Personal Services to Sheriff.--A contract between a sheriff and a taxpayer, by which the taxpayer is to act as a sheriff's attorney at a fixed sum, to be applied on the taxpayer's taxes, is against public policy, and a court will not apply it as payment on the taxes. Miller v. Wisener, 45 W.Va. 59, 30 S.E. 237.
Where Sufficient Property, Levied on by Sheriff, Is Lost.--Where a sheriff levies on sufficient personal property to pay the taxes on land, for which the levy was made, and the property is lost through his neglect or misconduct, for which the owner of the land is in no way responsible, the taxes so levied for are paid; and when after such levy and loss the land was returned delinquent and sold, and a deed made therefor, a court of equity will cancel such deed. Campbell v. Wyant, 26 W.Va. 702.
Creditor's Suit Pending.--The mere fact that a creditor's suit is pending against the estate of a deceased person cannot relieve the heirs and creditors of such person from the payment of taxes on the land nor prevent the land from becoming forfeited for failure to have it assessed with taxes. Nobody could seriously contend that it is the duty of a court or its officers to see that property, in litigation before it, is assessed and the taxes thereon paid. Parties interested in it as heirs, devisees or creditors have the right to do so, and must do it, or suffer the forfeitures demanded by the law. Collins v. Sherwood, 50 W.Va. 133, 40 S.E. 603.
Payment by Executor--Credit.--The executor of one who gives his property to his wife for life, with power to make advancements to their children, the property in her possession at her death to be equally divided among them, is entitled to credit for payment of taxes on the life estate, and debts contracted by her, they having been paid by him with the acquiescence of the children. Robertson v. BreckinbridgeVa. Dec. 615.
By Cotenant on Undivided Fourth--Does Not Prevent Forfeiture.--The payment by a tenant in common of one undivided fourth of a tract of land of one-fourth of the taxes and damages, when the whole tract has been returned delinquent for the nonpayment of taxes, will not prevent the forfeiture of the entire tract of land or of any part thereof. Smith v. Tharp, 17 W.Va. 221.
Presumption of Payment from Lapse of Time.--Mere lapse of time will not raise a legal presumption of the payment of taxes and damages on land returned delinquent, though in connection with other circumstances it might justify the jury in finding as a matter of fact, that these taxes and damages had been paid. Smith v. Tharp, 17 W.Va. 221; Lohrs v. Miller, 12 Gratt. 452, distinguished.
From Nondelinquency.--A presumption of payment also arises where the land was not returned delinquent. Cunningham v. Brown, 39 W.Va. 588, 20 S.E. 615.
Between Vendor and Vendee.--As a vendee of land has a right to apply his purchase money towards the payment of taxes on the land, the fact that the taxes for the current year in which the property is sold have not been paid is not a valid objection to the title. Clark v. Hutzler, 96 Va. 73, 30 S.E. 469.
" All the decisions agree that the payment of the taxes by one party, either by the vendee or the vendor, will be a full satisfaction of the taxes legally chargeable upon the land, and the state could have no further charge for taxes against the land under the title thus held in privity and successively by the vendor and vendee. Simpson v. Edmiston, 23 W.Va. 675, 683; Whitham v. Sayers, 9 W.Va. 671; Bradley v. Ewart, 18 W.Va. 598; Lohrs v. Miller, 12 Gratt. 452; Hall v. Hall, 27 W.Va. 468." Sturm v. Fleming, 26 W.Va. 54; Simpson v. Edmiston, 23 W.Va. 675, distinguished. See State v. Low, 46 W.Va. 451, 33 S.E. 271.
The payment of the taxes on land by the purchaser thereof at a judicial sale, which is subsequently declared void, or by his assignee, will inure to the benefit of the owner, and the state can have no claim against the owner for taxes on the land during the same time and no forfeiture of the land will occur, for omission by him to enter land and pay taxes. Lynch v. Andrews, 25 W.Va. 751; Sturm v. Fleming, 26 W.Va. 54; Hall v. Hall, 27 W.Va. 468.
And where the real owner of land asserts a claim for rents and profits against the purchaser thereof at an invalid judicial sale, the latter is entitled to a credit for all lawful taxes paid by him while he held the land as his own. Sturm v. Fleming, 26 W.Va. 54; Haymond v. Camden, 22 W.Va. 180; Cain v. Cox, 23 W.Va. 594. See post, " Force of Sale," IX, F, 8.
Between Heir and Ancestor.--An heir is not bound for clerk's fees and taxes due from the ancestor. Haydon v. Goode, 4 Hen. & M. 460.
Land Rented under Court Order.--Taxes accruing on lands which are being rented out under an order of court, should be paid out of the rent. Camden v. Haymond, 9 W.Va. 680.
Equitable Owner's Duty to Pay.--Where a lessee conveys certain lands to the lessor, as a collateral security for the payment of a debt to the lessor, and the lands so conveyed are lost by the nonpayment of taxes, the lessor is not responsible for the value of the lands; but the lessee was bound to see to the payment of the taxes, he having a complete equitable title to the lands. Harvie v. Banks, 1 408.
Payment at Treasury.--When a landowner wishes to pay off his taxes to the state at the treasury, as he may, he first goes to the auditor, and states his desire to pay the taxes upon his land. It is the auditor's duty to examine the commissioner's books on file in his office, ascertain the taxes due upon the land, and issue his order or warrant to the treasurer to receive the amount. The treasurer does receive the amount, for which he gives his receipt. This receipt is handed to the auditor, who takes it up, and gives in lieu of it his own receipt; and that closes the transaction. That receipt of the auditor is a quietus to the party. In the performance of these duties, the auditor must examine the commissioner's books, he must ascertain what is due; he must therefore, in that examination, decide whether the lands of the party are or are not exonerated by the act of March 10, 1832. Taylor v. Burdett, 11 Leigh 334.
Release of Taxes Prior to 1831--Evidence.--The act of March 10, 1832, provides for the release of any delinquent taxes for the year 1831 or any prior year, not exceeding ten dollars, and the certificate of the chief clerk in the auditor's office that the taxes were released for 1831 and the year prior thereto, is competent evidence of that fact. Taylor v. Burdett, 11 Leigh 334.
Recovery of Taxes.--Where taxpayer under protest pays taxes to tax collector, who, under Code, § § 410, 411, pays the money over into the treasury, an action of assumpsit for money had and received will not lie to recover the money. Mallan v. Bransford, 86 Va. 675, 10 S.E. 977. See Brown v. Greenhow, 80 Va. 118; Norfolk, etc., R. Co. v. Supervisors, 87 Va. 521, 12 S.E. 1009.
At common law, both in England and in this country, the sovereign could not be sued in a matter of taxation except by consent, but in Virginia this matter is specially regulated by statute. Taylor v. Williams, 78 Va. 422.
D. LIABILITY OF COLLECTOR.
State's Money--Ear-Marking.--Where money collected for tax bills placed in their hands by a tax collector, was paid over by his deputies to his administrator as " the state's money," the administrator properly paid that money to the state in preference to the creditors of the tax collector. See monographic note on " Debts of Decedents" appended to Shores v. Wares, 1 Rob. 1; Spilman v. Payne. 84 Va. 435, 4 S.E. 749.
Deputy's Agent.--Where a treasurer permitted deputy to turn over tax tickets to S. for collection, declaring, however, he would look only to deputy and his sureties, and subsequently S., on motion of treasurer, qualified as deputy, but gave no bond, and treasurer receipted to him for any money paid by him, the deputy and his sureties are responsible for any default of S. in the collection of taxes, S. being his agent. Stultz v. Ingles, 84 Va. 844, 6 S.E. 147.
Motions.--Under the provisions of § § 910, 912 of the Code a county treasurer may proceed, by motion, upon ten days' notice, in the county court, against his deputy and his sureties, for the failure of the deputy to pay over the proceeds of, or to account for, tax tickets placed in his hands for collection. Hall v. Ratliff, 93 Va. 327, 24 S.E. 1011.
On a motion against a clerk for the penalty incurred by failing to pay the taxes on law process, he may defend himself by showing that he used due diligence to get a commissioner of the revenue to compare his account with the books in his office, and certify thereupon as the law requires, and was prevented by the default of such commissioner from obtaining a quietus. Auditor v. NicholasMunf. 31.
Where a clerk fails to pay the taxes received by him, on law process, into the treasury, he is liable to the penalty of $ 600, even though he should have accounted for same with the auditor, and the auditor has a remedy for this delinquency by motion Steptoe v. Auditor, 3 221.
Interest.--Interest is not due upon the damages, until after judgment, against a public collector, for failure to pay over taxes. Gaskins v. Commonwealth, 1 Call 194.
But a city or other collector of public taxes, which bear interest, is liable for interest accrued on said taxes; and if he fails to account for the same, and instead of doing so he deposits the proceeds of such taxes in bank and takes to his own use the interest paid by the bank on such deposit, he and his sureties will be liable to said city for the specific interest so received by him from the bank on such proceeds. Wheeling v. Black, 25 W.Va. 266.
When a collector of a city collects from the taxpayers by virtue of his office interest on taxes, he is in no position to assert that said interest was illegally collected; and in an action brought against him for such interest by said city he will not be permitted to defeat the same by alleging such illegal collection. Wheeling v. Black, 25 W.Va. 266.
Application, on Sheriff's Account, of Taxes Paid.--In the case of taxes assessed and paid into the treasury by a railroad company for the last year of the term of office of a sheriff, where he has given a new bond covering such taxes, it would be the duty of the auditor, unless otherwise specially directed by the sheriff, to apply such payments to the taxes charged against said sheriff for the year for which they were assessed. Taylor v. LaFollette, 49 W.Va. 478, 39 S.E. 276. Dent, J., dissenting.
E. FORFEITURE. --(See ante, " Of Lands," II, A; " Payment of and Liability for Taxes," IX, C.)
1. In General.
Never Favored by Courts. --Courts do not favor a forfeiture, and require strict proof of the act or omission upon which it is claimed. Townshend v. Shaffer, 30 W.Va. 176, 3 S.E. 586; Boon v. Simmons, 88 Va. 259, 13 S.E. 439; Wilsons v. Bell, 7 Leigh 22; Randolph v. Adams, 2 W.Va. 519, 524; Lohrs v. Miller, 12 Gratt. 452; Battin v. Woods, 27 W.Va. 58.
Two Similar Tracts--Only One Entered.--Where it does not appear that more than one of two tracts of land, containing equal quantities, the local description of which may apply to either, was ever entered on the land books and charged with taxes, and where it does not appear which of the two was so entered and charged and which not, he that would show the forfeiture of either of them, must show which it was, or at least must show it to be the one that covers the land embraced by his junior patent, if he seeks to set up that defense. Randolph v. Adams, 2 W.Va. 519.
Compared with Delinquency.--There is a vast difference between delinquency and forfeiture. The former means simply that the owner has failed to pay the taxes due on his land, and in consequence it has been returned delinquent and is subject to the state's lien for the taxes and liable to be sold therefor. But by forfeiture the former owner is entirely divested of all his interest in the land and the title thereto becomes absolutely vested in the state. By reason of the delinquency the state may sell the land under her lien for taxes, while a forfeiture vests the absolute title in the state. Waggoner v. Wolf, 28 W.Va. 820.
2. For Nonentry on Land Books. --The failure of the grantee of the commonwealth to have the lands granted to him entered on the books of the commissioner of the revenue for the purposes of of taxation, and to pay taxes thereon, operates as a complete forfeiture of the lands to the commonwealth, and no judgment or decree, inquest of office, or other matter of record, is necessary to consummate and perfect the forfeiture; and where lands have been thus forfeited, the original grant constitutes no cloud on the title of a subsequent grantee of the commonwealth. Matney v. Ratliff, 96 Va. 231, 31 S.E. 512; Holly River Coal Co. v. Howell, 36 W.Va. 489, 15 S.E. 214.
Under Code of 1868.--Under § 34, c. 31, Code 1868, a tract of land was forfeited, and the title thereto vested in the state, for nonentry on the assessor's books for taxation for more than five successive years from and after the year 1866 in the name of the heirs of the deceased owner. State v. Tavenner, 49 W.Va. 696, 39 S.E. 649.
When Forfeiture Complete.--Land having been forfeited under the Act of February 27th, 1835. Sess. Acts. p. 11, for the failure to enter them on the commissioner's books, that forfeiture was complete on November 1st, 1836, the period limited in which the forfeiture might be saved by complying with the provisions of the act of March 23d, 1836, Sess. Acts 1835-6, p. 7. See foot-note to Wild v. Serpell, 10 Gratt. 405; Hale v. Branscum, 10 Gratt. 418; Staats v. Board, 10 Gratt. 400.
Finality.--In such cases the failure to enter and pay the taxes due on the land, for five successive years, and the damages, in the manner prescribed by the act of February 27, 1835, caused the forfeiture to become complete and absolute, and no inquisition, judicial proceeding, or inquest or finding of any kind was necessary to consummate such forfeiture. Yokum v. Fickey, 37 W.Va. 762, 17 S.E. 318; Levasser v. Washburn, 11 Gratt. 572, and foot-note to this case; Staats v. Board, 10 Gratt. 400; Wild v. Serpell, 10 Gratt. 405; State v. Swann, 46 W.Va. 128, 33 S.E. 89; Holly River Coal Co. v. Howell, 36 W.Va. 489, 15 S.E. 214.
Not Released by Further Time Given to Redeem. --The forfeiture of such lands as become such by omission, called " omitted lands," became complete on the 1st day of November, 1836, and the subsequent acts treated them as forfeited, and, although further time to redeem was given, the forfeitures which had accrued by prior laws were not released except in such cases as the owner availed himself of the privilege to redeem. Yokum v. Fickey, 37 W.Va. 762, 17 S.E. 318; Ushers v. Pride, 15 Gratt. 190; Staats v. Board, 10 Gratt. 400.
Entered in Wrong Name--No Forfeiture.--Land is granted by the commonwealth to S., in 1788 and he sells and conveys it in 1812. It is not on the commissioner's book until 1813, when it is entered in the names of the grantees of S., and the taxes paid until 1842. In 1839 it is sold, under a decree of court, by the commissioner of forfeited and delinquent lands in the name of S. Held that it was not forfeited under the act of 1835-36, as the alleged forfeiture could only operate on the ownership of S., in whose name it was forfeited, as he then had no interest in it, and it was then actually on the commissioner's books in the name of parties claiming under him, and the taxes duly paid. Twiggs v. Chevallie, 4 W.Va. 463; Lohrs v. Miller, 12 Gratt. 452; Strader v. Goff, 6 W.Va. 257.
Forfeiting Statutes Repealed in 1814.--As by § 52 of the Act of February 9th, 1814Rev. Code, p. 546, all previous laws forfeiting lands for the failure to enter them on the books of the commissioner of the revenue, were repealed, and no provision was made by subsequent laws forfeiting lands for such failure prior to the act of February 27th, 1835, Sess. Acts, p. 11, no such forfeiture occurred prior to that time. Staats v. Board, 10 Gratt. 400; Hale v. Marshall, 14 Gratt. 489. And all forfeitures of such omitted lands were thereby remitted. Holly River Coal Co. v. Howell, 36 W.Va. 489, 15 S.E. 214.
That act of 1835 describes particularly the class of lands intended to be forfeited, carefully excluding such as at the date of the act were in the actual possession of the owners, and none could be forfeited unless they came fully within the terms of the description. Hale v. Marshall, 14 Gratt. 489.
Forfeiture Saved by Possession.--A forfeiture under the act of Feb. 27, 1835, for nonentry on land books, was prevented as to any of such lands in the actual possession of the owner by himself or tenant. Postlewaite v. Wise, 17 W.Va. 1.
Thus, where it appears that a person under whom the defendant claims was in possession of the land at the time of the passage of the act, the defendant may rely upon his possession to defeat the forfeiture, if his possession was such as the statute describes, and after twenty years' possession of land under a complete equitable title derived from the patentee, himself living in an adjoining county for years, and neither he nor any person claiming under him setting up any equitable claim to the land against the equitable title, a conveyance of the legal title may be presumed in favor of the party in possession, to prevent a forfeiture of the land, if the legal title is necessary. Hale v. Marshall, 14 Gratt. 489.
And a party in possession of land claiming it under a good equitable title, is within the exception to § 2 of the act of February 27th, 1835, p. 12, concerning delinquent lands, saving a forfeiture to persons in possession. Hale v. Marshall, 14 Gratt. 489.
Payment of Taxes Not a Prerequisite.--The exception in the act is not to be confined to such persons as had paid the taxes chargeable upon their lands, for the second section did not relate at all to lands on which the taxes had been paid but to omitted lands only, on which the taxes could not have been paid. Hale v. Marshall, 14 Gratt. 489.
But neither the possession of the land nor the entry of it on the commissioner's books, after the land became under the acts requiring omitted lands to be entered on the commissioner's books before Nov. 1st, 1836, absolutely forfeited, could divest the title of the commonwealth. Smith v. Tharp, 17 W.Va. 221. See Ushers v. Pride, 15 Gratt. 190; Postlewaite v. Wise, 17 W.Va. 1.
Subsequent Entry Does Not Relieve.--Where a tract of land had been omitted from the commissioner's books, and had thus become forfeited to the state under said act of February 27, 1835, the fact of entering the same on the commissioner's books in the year 1866 did not relieve it from said forfeiture. Yokum v. Fickey, 37 W.Va. 762, 17 S.E. 318; Smith v. Tharp, 17 W.Va. 221.
Disposition of Forfeited Lands.--The § 3, art. 13 of the Constitution declares, in substance, that the title to all lands heretofore or hereafter forfeited to the state and not redeemed, released, or otherwise disposed of, shall, ipso facto, be transferred to and become vested in one of the three classes of persons, if there are any such: First. Any person who shall have had actual continuous possession thereof under color or claim of title for ten years and paid the state taxes thereon for five years during such possession. Second. If there be none such, then, any person who shall have title thereto regularly derived from the state, which, but for the forfeited title, would be valid, and who has paid all state taxes on the same for five successive years after 1865; and third. If there be no one of either of these two classes, then any person who shall have had actual continuous possession under color of title for any five years after 1865 and paid all state taxes thereon for said period. The fourth section of the same article provides that the title to all such forfeited lands, not redeemed, released, transferred or otherwise disposed of, shall remain in the state until by proceedings in the circuit court the same shall be sold to the highest bidder. And the fifth section provides that the former owner may, after deducting all taxes, etc., have the residue of the proceeds of such sale paid to him. Waggoner v. Wolf, 28 W.Va. 820.
In McClure v. Maitland, 24 W.Va. 561, it was decided that as soon as the title to the land became forfeited and vested in the state, according to art. 13 of the Constitution, the ownership of the state becomes absolute, and her title perfect, and that the former owner then ceased to have any title, claim, right or interest whatever in the land as such owner, and that the only right conferred upon him by the fifth section of said article, was to be paid the excess of the proceeds of the sale over the amount of the taxes, in the manner prescribed therein. Waggoner v. Wolf, 28 W.Va. 820. See post, " Title by Enurement on Forfeiture," IX, E, 7.
3. For Delinquency--Compared with " Omitted Lands." --By the act of the legislature of the state of Virginia enacted April 1, 1831, a certain class of lands were forfeited for nonpayment of taxes, called " delinquent lands." By the act of February 27th, 1835, a certain other class of lands were forfeited for nonentry on the proper land books, called " omitted lands." After a day given, the forfeiture of the delinquent class of lands became absolute and complete on October 1st, 1834, and the forfeiture of the class of omitted lands became absolute and complete on November 1st, 1836; and no inquisition or judicial proceeding or inquest of any kind, was required to consummate such forfeiture. Holly River Coal Co. v. Howell, 36 W.Va. 489, 15 S.E. 214.
Commissioner of Delinquent and Forfeited Lands.--The acts of the legislature of Virginia of 30th March, 1837, and 15th March, 1838, and amendments in pari materia, created and provided for putting in operation a proceeding to ascertain and determine what lands were thus forfeited; and an officer called the " commissioner of delinquent and forfeited lands" was provided for the purpose, whose duty it was to ascertain and report such lands to the circuit superior court of law and chancery for his county. Holly River Coal Co. v. Howell, 36 W.Va. 489, 15 S.E. 214.
Nature of Proceeding.--Such proceeding was a judicial one, in the nature of a proceeding against the land itself; and, when completed by a sale, is prima facie evidence of such forfeiture against all persons. And the orders and decrees made therein are conclusive against strangers in all collateral proceedings. Holly River Coal Co. v. Howell, 36 W.Va. 489, 15 S.E. 214. The policy of these laws was to quiet titles as far as possible and convey as good title under these sales as possible, and if the ownership vested in the commonwealth by forfeiture of one or more titles, such title as it had, passed to the purchaser under the deed of the commissioner, and he who connects his title with such deed connects it with the commonwealth, so far as same is valid, and so far as any right or title was in the commonwealth. Holly River Coal Co. v. Howell, 36 W.Va. 489, 15 S.E. 214.
Act of 1790.--This class of forfeitures has not been employed in Virginia as one of the usual means of enforcing the payment of taxes, but rather for the purpose of establishing titles and settling vacant and abandoned lands. The act of 1790 introduced the principle of forfeiture. Martin v. Snowden, 18 Gratt. 100.
And by the act of 1790, the forfeiture was not resorted to as one of the known and accustomed means of collecting a tax. It was resorted to as a new proceeding, when other means failed--when no effects could be found in the county, or any other county, to satisfy the tax; and when, after the advertisement, and a delay of three years, no person would pay it. It could hardly apply to any case in which the land had not been abandoned by the owner. Martin v. Snowden, 18 Gratt. 100.
Lands were not liable to forfeiture for nonpayment of taxes, under the act of December 27, 1790, unless they had been assessed and listed by the commissioners of the revenue, returned to the auditor of public accounts by the sheriff or collector, and advertised by the treasurer. as directed by § 4 of the same act, incorporated into § 34 of the act of December 13, 1792. Kinney v. BeverleyHen. & M. 318, and foot-note.
Example--Release.--When a tract of land was returned delinquent for the nonpayment of taxes in 1800 and 1801, and these taxes were never paid, under the statute law of Virginia, the forfeiture of this land to the state became complete on the first day of October, 1834. Subsequent acts gave further time to July 1, 1838, to redeem these forfeited lands, but the forfeitures, which became complete on October 1, 1834, were not released except in such cases as the owner availed himself of the privilege of redeeming under these subsequent acts. Smith v. Tharp, 17 W.Va. 221.
4. Constitutionality.
Forfeiture for Omission.--Statutes forfeiting land for nonpayment of taxes are constitutional, and, in order to consummate a forfeiture in such a case, no judgment or decree or other matter of record is necessary; the statute a proprio vigore effectually divests title out of the defaulting owner, and perfectly vests it in the commonwealth. Lennig v. White, 1 Va. Dec. 873; Wild v. Serpell, 10 Gratt. 405; Staats v. Board, 10 Gratt. 400; Levasser v. Washburn, 11 Gratt. 572; Usher v. Pride, 15 Gratt. 190. See also, Smith v. Tharp, 17 W.Va. 221; McClure v. Maitland, 24 W.Va. 561.
Due Process of Law.--That clause of § 6, art. 13, of the state constitution, forfeiting land for the failure of the owner to enter it for taxation, is not in violation of that clause of the fourteenth amendment to the federal constitution restraining states from depriving any person of life, liberty or property without due process of law. State v. Sponaugle, 45 W.Va. 415, 32 S.E. 283. See foot-note to Usher v. Pride, 15 Gratt. 190; State v. Swann, 46 W.Va. 128, 33 S.E. 89; State v. Cheney, 45 W.Va. 478, 31 S.E. 920.
Although said section of the constitution provides for the forfeiture of lands containing 1,000 acres or more, it does not limit such forfeiture to tracts of land of 1,000 acres or more in quantity; and the act of 1873 providing for the forfeiture of a less number of acres than 1,000, for nonentry upon the land books, is merely cumulative, and is not inhibited by said section of the constitution. State v. Swann, 46 W.Va. 128, 33 S.E. 89. (Brannon, J., dissenting.)
See monographic note on " Constitutional Law" appended to Commonwealth v. Adcock, 8 Gratt. 661, cited above.
5. Power of Congress to Forfeit Lands. --Congress has not the constitutional power to impose the penalty of forfeiture of lands for the nonpayment of taxes assessed thereon. Martin v. Snowden, 18 Gratt. 100.
The fourth section of the act of Congress of June 7, 1862, entitled " an act for the collection of taxes in the insurrectionary districts," 12 Stat. at Large 422, does not, and is not intended to, create such a forfeiture of the land to the United States as that it ipso facto ceases to be the property of the former owner, and becomes the absolute property of the United States. Martin v. Snowden, 18 Gratt. 100, and foot-note.
Congress has all the powers for enforcing the collection of its taxes that were in use by the crown in England, or were in use by the states at the time of the adoption of the constitution of the United States; but forfeiture of the land assessed with the tax was not then in use, either in England or the states, as a mode of collecting the tax. Martin v. Snowden, 18 Gratt. 100.
If the forfeiture provided by this act is to be regarded as absolute and as a penalty upon persons engaged in rebellion against the United States, then it is a legislative conviction and punishment without trial of all who fail to pay the tax, and is a violation of the provision of the constitution which forbids congress to pass a bill of attainder. Martin v. Snowden, 18 Gratt. 100. See monographic note on " Constitutional Law" appended to Commonwealth v. Adcock, 8 Gratt. 661, cited above.
6. Patents for Forfeited Lands. --A patent for land forfeited for nonpayment of taxes, was unauthorized by any law prior to the Code of 1849; and therefore the entry and survey of the land gave the patentee no equity therein. Atkins v. Lewis, 14 Gratt. 30. See foot-note to Levasser v. Washburn, 11 Gratt. 572.
A patent for land which had been previously granted by the commonwealth, and had been forfeited under the delinquent land laws, passed nothing to the patentee; and a conveyance of the land forfeited, by the commissioner of delinquent lands, passed the title vested in the commonwealth by the forfeiture. Levasser v. Washburn, 11 Gratt. 572.
Though the entry and survey of land was made prior to a sale thereof as forfeited land under a decree of the court, yet the sale having been made prior to the issuing of the patent, and the land having been purchased by the original owner, who paid as the cash payment thereof, more than sufficient to satisfy all taxes, damages and costs due to the commonwealth; and the court having, after the issuing of the patent, directed the balance of the purchase money to be released to the purchaser, and the commissioner of delinquent lands having conveyed the land to him; his title is good against the patentee, who never was in possession, and who claimed the commonwealth's title under the act of March 22, 1842. Atkins v. Lewis, 14 Gratt. 30.
Where a tract of land which was owned by H. in 1797, was conveyed, by the medium of two papers purporting to be deeds, to M., a mediate grantee, in that year, and the deeds, though not duly authenticated, are by order of the proper court directed to be admitted to record, and are recorded, the grantee enters the land as his own on the commissioner's book. In 1815 it is sold as his land under a forfeiture for nonpayment of taxes, conveyed to the present owner, who enters it as his own, and it has ever since been held by him and those claiming under him. All the taxes charged on the land have been paid or released. Under the circumstances the land was not forfeited under the act of 1835, as the land of the original owner, to a party who obtained a patent therefor in 1843, entered it with the commissioner and pays the taxes thereon regularly, but the other tax title is valid. Lohrs v. Miller, 12 Gratt. 452.
7. Title by Enurement on Forfeiture.
What Claimant Must Show.--In order that a party may be entitled to land which has been forfeited to the state of Virginia or West Virginia by transfer, the party so claiming title by transfer, must show himself to be entitled thereto by bringing himself within one of the three classes of persons described in § 3, art. 13, of the Constitution, which section was carried into the statute, and is found embodied in § 40, ch. 31 of the Code of 1887. Yokum v. Fickey, 37 W.Va. 762, 17 S.E. 318.
For example, in 1871 H., L., and R. jointly purchased a tract of land at a tax sale, and a deed was made to them in pursuance thereof. H. paid none of the purchase money, and L. and R. permitted the land to be returned delinquent, and sold again for the taxes for a subsequent year, and purchased it. For another year still later, the land was again sold, and purchased by the state. The land was assessed in the names of H., L., and R. until 1880 when it was entered on the land books and assessed in the names of persons claiming under L. and R., and continued to be so assessed down to and including the year 1897, and the taxes were paid by persons so claiming. Held, by § 3, art. 13 of the Constitution the title is vested in the persons claiming through and under L. and R. Collins v. Sherwood, 50 W.Va. 133, 40 S.E. 603.
Act of 1841--Payment of Taxes.--Section 3, Acts 1841-42, vests any forfeited title to tract of land in any person having just title and claim to such land, legal or equitable, claimed, held, or derived from or under any grant of the commonwealth bearing date previous to January 1st, 1843, who shall have discharged all taxes duly assessed or charged thereon from the time that he acquired title thereto, whether legal or equitable. Bowman v. Dewing, 50 W.Va. 445, 40 S.E. 576.
By this act the title to forfeited lands is transferred to and vested in such persons, other than those for whose default the same may have been forfeited, as had title or claim, legal or equitable, derived under a grant from the commonwealth bearing date prior to the 1st of January 1843, without making either actual occupancy or possession of the land, or a bone fide claim of title, any part of the condition on which the transfer of the title takes effect. Wild v. Serpell, 10 Gratt. 405.
Scope of Act.--Though the land had been reported to the court as forfeited land, and an order had been made for the sale thereof, yet if not actually sold before the passage of the act, the title is transferred under the statute. Wild v. Serpell, 10 Gratt. 405.
The act of March 22d, 1842, is retrospective in its operation. Wild v. Serpell, 10 Gratt. 405.
Actual Occupants--Meaning.--By the act of March 18th, 1841, Sess. Acts 1840-41, p. 31, the forfeiture of title to the commonwealth only enures to the benefit of those then in actual possession of the forfeited land under claim of title through a grant from the commonwealth. Though at that time a party held a patent for the land, yet if he was in actual possession under a lease from another person claiming the elder title, that is not the actual possession contemplated by the statute. Wild v. Serpell, 10 Gratt. 405.
And parties who would avail themselves of the provisions of the act of 1841, in relation to forfeited and delinquent lands, which vests title in actual occupants of land who claim under title derived from grant, must show not only possession but title derived from or under grant of the commonwealth, and possession within the grant. Kenna v. Quarrier, 3 W.Va. 210.
The act of March 18th, 1841, Sess. Acts, p. 31, relinquishing the commonwealth's right to forfeit lands to a junior patentee in possession, only applies to those whose patents bear date previous to the 1st of April 1841. Levasser v. Washburn, 11 Gratt. 572.
Under Act of March 16, 1838.--To sustain a claim under § 16 of the act of March 16, 1838, Sess. Acts 1837-8, p. 21, the party must have been at the date of the act in the actual possession and occupancy of the land forfeited or parcel thereof, with the title bona fide claimed or derived under grants from the commonwealth which issued subsequent to March 31st, 1831 and prior to January 15th, 1838. Wild v. Serpell, 10 Gratt. 405.
Quoere, whether under the particular terms of that section the right to set up such a transfer of title is not restricted to the purpose of defense by the occupant against whom an action might be brought for the recovery of the land then in his possession. Wild v. Serpell, 10 Gratt. 405.
Act of March 30, 1847.--Nor can such a party sustain such a claim under the provisions of the act of March 30th, 1837, unless he is a bona fide occupant of the land. Wild v. Serpell, 10 Gratt. 405.
Forfelture under Act of Feb. 27, 1835.--A party claiming under a grant from the commonwealth issued in August 1836, cannot claim the benefit of an older title forfeited to the commonwealth, under the act of 27th of February, 1835, because by that act a forfeiture only enured to the benefit of those who claimed title under a grant from the commonwealth bearing date before April 1st, 1831. Wild v. Serpell, 10 Gratt. 405.
Operates Ipso Facto.--In cases of forfeiture where the title is vested in the commonwealth, and the forfeiture enures to the benefit of a third person claiming under the commonwealth by virtue of another and distinct right, the transfer of the title to such person is, in like manner, perfect and complete without any new grant from the commonwealth, or any proceeding to manifest the transfer, by matter of record or otherwise. Wild v. Serpell, 10 Gratt. 405.
Act of March 15, 1836--Patentee.--By the operation of the act of March 15th, 1836, Sess. Acts, p. 7, the title acquired by the commonwealth by such forfeiture vested in the party obtaining a patent for the land in June, 1846. Hale v. Branscum, 10 Gratt. 418.
For Delinquency.--Where the state has become the purchaser of lands delinquent for the nonpayment of taxes due thereon, by virtue of § 3, art. 13 of the Constitution, the forfeited title, in so far as vested in the state, becomes vested in any person (other than the person, his heirs or devisees, for whose default the land was returned delinquent) having title or claim to such land derived mediately or immediately from or under a grant from the state, and who, or those under whom he claims, have paid the state taxes charged or chargeable thereon for five successive years; and a suit cannot be maintained in the name of the state to sell such land for the benefit of the school fund. State v. Collins, 48 W.Va. 64, 35 S.E. 840.
This provision of the constitution was adopted to settle the title of lands and reward the diligent taxpayer, by transferring to him, after five years' continuous payment of taxes under title or claim to such land, regularly derived from the state, any forfeited title that might be in the state, whether his title or claim was a branch or offshoot of the forfeited title, or entirely independent of and foreign thereto; debarring from its benefits only those, their heirs and devisees, for whose default the forfeiture or delinquency occurred. State v. Collins, 48 W.Va. 64, 35 S.E. 840. See ante, " For Nonentry on Land Books," IX, E, 2.
8. Sale of Forfeited Lands. --(See post, " Sale of Delinquent Lands," IX, F.)
Land in Two Counties.--Land is forfeited under one title in one county, and under another title in another county, the land in one patent extending into both counties. The court in which the proceeding is first commenced for the sale of land has jurisdiction of the subject, and the sale and conveyance under its decree passes all the title of the commonwealth, though the conveyance under the decree of the court of the other county is first executed. Smith v. Chapman, 10 Gratt. 445.
For Forfeiture under Distinct Titles--Effect.--Land is forfeited to the commonwealth under distinct titles. Upon a proceeding to have the land sold under either title, the sale and conveyance passes all the title vested in the commonwealth under both titles. Smith v. Chapman, 10 Gratt. 445; foot-note to Bowman v. Dewing, 50 W.Va. 445, 40 S.E. 576.
For the policy of these laws was to quiet titles as far as possible, and to convey a good title under these sales as far as the commonwealth had the means of so doing; and, if the ownership of such lands was vested in the commonwealth by reason of forfeiture of one or more titles, such title as the commonwealth thus had, passed to the purchaser by the deed of the commissioner of delinquent and forfeited lands; and he who connects his title with such deed connects it with the commonwealth, so far as the same is valid, and so far as any right or title was in the commonwealth to be conveyed. Holly River Coal Co. v. Howell, 36 W.Va. 489, 15 S.E. 214.
Land Not Covered by Forfeited Title Unaffected.--A sale made in 1843 for a tract of land under a forfeited title, which does not include or cover such land, is void; and a deed made by virtue thereof is also void, and can vest no title in the purchaser and those claiming under him, except such title as may be in the state at the date of such deed. Bowman v. Dewing, 50 W.Va. 445, 40 S.E. 576; Twiggs v. Chevallie, 4 W.Va. 463.
Sale of Land Improperly Forfeited, Ineffectual.--The jurisdiction of the court ordering a sale of land, was a limited one and only extended to lands that were actually forfeited, and was based on the report of the commissioner who was required to report the lands that were delinquent, and none other. Therefore no sale of lands thereunder not actually forfeited, could divest bona fide owners. Twiggs v. Chevallie, 4 W.Va. 463; McClure v. Maitland, 24 W.Va. 561.
If, as was claimed, the decree divested the title of the grantees of S., the purchaser only acquired such as was in S., the patentee, in whose name the land had been sold, and he had parted with all title in 1812. Twiggs v. Chevallie, 4 W.Va. 463.
9. Evidence of Forfeiture.
Certificate of Auditor.--A certificate purporting to be made by the auditor of the state, in pursuance of the act of March 15, 1838, Sess. Acts p. 16, § 7, of land forfeited for nonpayment of taxes, being in the usual form in which he certifies papers from his office, is evidence of the execution of such certificate, and of the official character of the paper, and also of the facts therein contained. Ushers v. Pride, 15 Gratt. 190; Baker v. Preston, 1 Gilmer 235.
Though such certificate was made in 1844, yet it having been offered in evidence in 1856, it is prima facie evidence, by the act, Code, ch. 176, § 4, p. 660, though said act was passed after the certificate was made. Ushers v. Pride, 15 Gratt. 190.
Only Prima Facie Evidence.--The auditor's certificate of the fact and the time of the return of any real estate as delinquent is only prima facie evidence thereof; and it would therefore be error for the court to instruct the jury to infer from any such certificate, that land had been forfeited; the instruction should be, that if from the evidence the jury believed the facts stated in such certificate, they should draw such inference. Smith v. Tharp, 17 W.Va. 221.
The Forfeiture Proceeding Itself.--When lands were reported by a commissioner of delinquent and forfeited lands, and by him and the court treated as forfeited, and accordingly sold, and a deed was made by the commissioner to the purchaser, the proceedings is prima facie evidence of the forfeiture; but it may be rebutted by proof. Strader v. Goff, 6 W.Va. 257.
When the title of any person so treated as the owner of the land, is shown to have passed to another person before the reported delinquency or omission that occasioned the assumed forfeiture; or another collateral title is shown to have vested in such other person; the judicial proceeding is not prima facie evidence of the forfeiture of such title; and, unless other evidence make it necessary for the owner to prove the payment of taxes, he need not do so. But the purchaser at the commissioner's sale, or claimant through or under him, may prove the forfeiture of such title, or may adduce prima facie evidence of the forfeiture that will make it necessary for the other in turn to rebut it. Strader v. Goff, 6 W.Va. 257 at 268.
Not Assailable Collaterally by Strangers.--As against strangers, those claiming under the proceedings in forfeiture, and the deed of the commissioner of delinquent and forfeited lands made in pursuance thereof, cannot be called upon to show its regularity. It is manifest, from the whole scope and tenor of the acts on this subject, that the regularity of the sale of forfeited lands under the decree of the court was never intended to be drawn in question in any collateral proceeding. Holly River Coal Co. v. Howell, 36 W.Va. 489, 15 S.E. 214. See post, " Force of Sale," IX, F, 8; " Force and Effect," IX, H, 1.
The very object of these laws was to make the proceeding a judicial, as distinguished from a ministerial, sale made by a sheriff or marshal for taxes. These latter sales had already been made practically nugatory, for to them had constantly been applied the rule that, " where a naked power is given by law to an officer or other person, that power must be strictly pursued, especially if, by the exercise of such power, the estates or rights of others may be forfeited or lost; and it will devolve on him who claims a right, under the exercise of such power, to show that it was in all respects exactly pursued." Holly River Coal Co. v. Howell, 36 W.Va. 489, 15 S.E. 214.
F. SALE OF DELINQUENT LANDS.
1. Power of Sale. --(See ante, " Sale of Forfeited Lands," IX, E, 8.)
Must Be Expressly Conferred.--Power to sell real estate for nonpayment of taxes must be expressly conferred by law. Old Dominion Building & Loan Ass'n v. Sohn (W. Va.), 46 S.E. 222.
Strictly Construed. --Statutes providing for sale of lands delinquent for nonpayment of taxes must be strictly construed, such sales being forfeitures, Bond v. Pettit, 89 Va. 474, 16 S.E. 666; Wilson v. Bell, 7 Leigh 22; Boon v. Simmons, 88 Va. 259, 13 S.E. 439; Allen v. Smith, 1 Leigh 231.
For they are highly penal in their nature. Yancey v. Hopkins, 1 Munf. 419.
Is an Exception to Rule as to Due Process of Law.--The right to sell land for taxes on an ex parte proceeding is an exception to the general rule, that no man shall be deprived of property without due process of law, and that due process of law is only upon a hearing of the parties in a court of competent jurisdiction. Campbell v. Wyant, 26 W.Va. 702.
Sale Law May Enter into Sale Contract.--Such parts of ch. 37 of the Code of Virginia as were material and substantial parts of the contract of sale of a tract of land for taxes, sold by the sheriff, thereunder, in 1860, should be held to remain and continue in force, as to such contracts, in connection with the act of the legislature entitled " An act providing how lands heretofore or hereafter sold, and not redeemed, shall be surveyed and conveyed," passed on October 7th, 1863, notwithstanding the provisions of § 32 of the act of the legislature passed on February 27th, 1866, entitled " An act to provide for the sale of real estate returned delinquent for the nonpayment of taxes." Forqueran v. Donnally, 7 W.Va. 114.
What May Be Sold--Part or Whole.--A separate part of a city, village, or town lot cannot be sold under the provision of ch. 31 of the Code of 1899. As to such lot, the sale must be of the whole lot or of an undivided interest therein. Old Dominion Building & Loan Ass'n v. Sohn (W. Va.), 46 S.E. 222.
As they now stand § § 8, 17, 19 and 24 of ch. 31 of the Code of 1899, relating to the sale of delinquent lands and lots, are inconsistent and contradictory. To be more explicit, it may be said that § 17 is contradictory of the other sections named. Old Dominion Building & Loan Ass'n v. Sohn (W. Va.), 46 S.E. 222.
Section 8, prescribing what shall be sold, separates real estate into two classes--tracts of land and lots. Tracts may be sold in their entirety, or separate quantities, or parts thereof, may be sold. City, village, or town lots may be sold in their entirety, or undivided interests therein may be sold, but there is no provision for the sale of separate quantities or parts of town lots. Old Dominion Building & Loan Ass'n v. Sohn (W. Va.), 46 S.E. 222.
Where the sale, as to such lot, is described in the memorandum of sale as " 1/2 of lot 35 x 120," and in the report of sale as " 1/2 lot," the quantity sold is an undivided one-half of the lot. Old Dominion Building & Loan Ass'n v. Sohn (W. Va.), 46 S.E. 222.
In such case the purchaser must cause a survey and report to be made by the county surveyor before obtaining a deed; but the provision of § 17, c. 31 of the Code of 1899, requiring division of the land, is not applicable. It applies only to purchasers of separate quantities or parts of the tracts of land, other than city, village or town lots. Old Dominion Building & Loan Ass'n v. Sohn (W. Va.), 46 S.E. 222.
2. For Federal Taxes. --The power of congress to provide for the sale of land for the payment of tax is limited to that object, and a law which requires that the whole land shall be sold in all cases, without regard to the fact that it may be divided without injury to it, and the tax may be paid by a sale of a part of it, is unconstitutional. Martin v. Snowden, 18 Gratt. 100.
Strict Compliance with Statute.--In a sale of lands by a collector of taxes imposed by the act of congress of 1798, the collector must comply strictly with the requisitions of the tax, in his proceedings preparatory to the sale; it was incumbent on a purchaser claiming under such sale, to prove the regularity thereof. Allen v. Smith, 1 Leigh 231.
When Land to Be Bid in for United States.--Commissioners making a sale of land for taxes under the act of congress of February 16, 1863, are bound to bid off the land for the United States, if no person will bid more than two-thirds of its assessed value, unless the owner shall request it to be struck off to some other person at a less price; and the commissioners have no discretion in the case. Turner v. Smith, 18 Gratt. 830.
And when the certificate of the commissioners of the sale of land for taxes under the act of congress, shows upon its face, that the land has been sold to a purchaser other than the United States, for less than two-thirds of its assessed value, it shows that the commissioners had no authority to make the sale to the purchaser, and it is therefor void and of no effect, and the curative statute does not apply to it to cure a defect apparent on its face. Turner v. Smith, 18 Gratt. 830.
3. Proceeding in Wrong Court--Sale Void. --If the auditor, through mistake or otherwise, certify for sale a tract of land delinquent for the nonpayment of taxes due thereon to the sheriff of the county in which such land is not situated at the date of such certification, a sale thereof made by such sheriff is illegal and void; and a deed made in pursuance thereof by the clerk of the county court is likewise void, and vests no title in the purchaser. White v. Wilkinson, 51 W.Va. 196, 41 S.E. 136.
4. Decree of Sale.
At Intermediate Term.--An objection that the order for the sale was made at an intermediate term of the court, and was a nullity because the court had no power at such at such a term to make an order of that kind, was not well taken. Hitchcox v. Rawson, 14 Gratt. 526.
And if there had been an irregularity in making the order for the sale at an intermediate term, it should be regarded as abundantly cured by the subsequent ratification and the proceedings afterwards had at the regular terms. Hitchcox v. Rawson, 14 Gratt. 526.
Confirming Sale--When Necessary--Effect.--Judicial confirmation of the sale, when required by law, is essential to a valid tax title, but no confirmation can aid a void title. Boon v. Simmons, 88 Va. 259, 13 S.E. 439.
5. Place of Sale. --In proceedings to sell real estate as delinquent for the nonpayment of taxes, the sheriff should not only advertise such sale to take place at the front door of the courthouse, but the sale should take place at such front door, to constitute a legal sale. Sommers v. Ward, 41 W.Va. 76, 23 S.E. 520.
See Winning v. Eakin, 44 W.Va. 19, 28 S.E. 757, to the effect that the failure of the list to show this, or that sale was between 10 a. m. and 4 p. m., will not affect the deed thereunder. Nuzum v. McEldowney, 46 W.Va. 207, 32 S.E. 1024.
6. Adjournment of Sale.
Illegal Adjournment Avoids Sale.--Section 7, c. 31, of the Code of 1868, provided that if the taxes, interest, damages and commissions on delinquent lands certified to the sheriff for sale, were not paid previous to the day fixed by law for the sale of the land, " the said sheriff or collector shall proceed to make sale accordingly; and if the same be not completed on the first day it shall be continued from day to day (Sundays excepted) between the hours aforesaid until it shall be completed." The sheriff of R. county began his sale of such lands December 2, 1871, and then adjourned until January 9, 1872, made no sales between said dates, and completed his sales on said last-named date. The adjournment was unauthorized, and invalidated the sale and a deed made in pursuance thereof, it being such an irregularity appearing of record as was calculated to materially prejudice the rights of the owners. Collins v. Sherwood, 50 W.Va. 133, 40 S.E. 603.
Where Failure to Adjourn--Effect.--Where the treasurer's report of the sale, which was duly confirmed, showed that the sale was advertised as required by law for the first day of the December term of the court, and thereafter continued from day to day and term to term until the April term of the court following, when it was sold, and bid in by the auditor for the state, if, in fact, there was no adjournment of the sale from the January term to the February term--subsequent adjournments being regular, and no injury done--the title of the purchaser is not thereby affected. Virginia Coal Co. v. Thomas, 97 Va. 527, 34 S.E. 486.
7. By Whom Made.
Authority Not Personal but Official. --The statutory authority given to a public officer, to make sales of real estate delinquent for nonpayment of taxes, vests the power of sale, not in the person of the officer but in the officer, and hence the power ceases as to any individual when his term expires, so that a sale after that is a mere nullity. McCullough v. Hunter, 90 Va. 699, 19 S.E. 776.
Deputy's Power--Who Sells Must Convey.--Under the statute of 1813-14 for sale of lands forfeited for nonpayment of taxes, the deputy sheriff as well as the high sheriff is competent to make such sales, but whichever officer makes the sale, the same one must make the deed. Chapman v. BennettLeigh 329; Wilsons v. Bell, 7 Leigh 22. See post, " The Execution," IX, H, 4; " Commissioner of Delinquent and Forfeited Land," IX, F, 11.
8. Force of Sale.
Boundaries--Private Arrangements Disregarded.--In ascertaining the boundaries of the land claimed by the plaintiff as a purchaser of a part of a large tract sold by the commissioner of delinquent lands, no regard is to be had to any private arrangements or divisions by the plaintiff and the other purchasers of parts of the same tract of land at the same sales. Smith v. Chapman, 10 Gratt. 445.
Effect on Encumbrance.--If at the time of a tax sale the lands sold be under a mortgage or deed of trust, or if there be any other lien or incumbrance thereon, and such mortgagee, trustee, cestui que trust, lienor or incumbrancer shall fail to redeem the same within the time prescribed by law, then all the right, title and interest of such mortgagee, trustee, cestui que trust, lienor or incumbrancer, shall pass to and be vested in the purchaser at such tax sale, and his title to the premises shall in no way be affected or impaired by such mortgage, deed of trust, lien or incumbrance. Summers v. County of Kanawha, 26 W.Va. 159. See post, " Force and Effect," IX, H, 1; Smith v. Lewis, 2 W.Va. 39. Also ante, " Lien for Taxes," VII.
And the trustee in such deed of trust cannot, after such sale for taxes, and the execution and recordation of the tax deed, sell and convey the land under the trust deed, but such pretended sale will be inoperative and void. Summers v. County of Kanawha, 26 W.Va. 159.
Subsequent Sale--Former Owner Purchasing.--Where part of the land belonging to coparceners and charged with taxes against them as heirs, has been sold by the sheriff for nonpayment of taxes, and purchased by a stranger, and is so sold again for the nonpayment of taxes assessed against the same persons for whose delinquency the first sale was made, but for years subsequent to those for the taxes of which the preceding sale was made, and one of the heirs buys the land at the second sale, and the purchaser at the first sale does not redeem from such second purchaser, the heir so purchasing acquires as against him, a superior and better right to the title. Cain v. Brown (W. Va.), 46 S.E. 579.
Void Where Tax Paid before Sale or Illegally Assessed.--If the tax is paid or tendered by any person before the land is sold, the sale is void and of no effect, though the act may provide that unless the owner shall appear in person and pay the tax, the commissioners shall proceed to sell the land. Martin v. Snowden, 18 Gratt. 100; Turner v. Smith, 18 Gratt. 830; Downey v. Nutt, 19 Gratt. 59.
Or where the assessment of the land for taxation was illegal. Cunningham v. Brown, 39 W.Va. 588, 20 S.E. 615.
For example, if J. in 1865 paid the taxes to the high sheriff of the county for that year, and asked if there were any back taxes, and was told by the sheriff, that the taxes of 1864 were due, but that the tax bill was in the hands of his deputy, but he would receive the tax, which he did, and gave a receipt therefor; and the high sheriff paid the tax with other taxes into the state treasury, and before the payment the land had been actually returned delinquent by a deputy of the high sheriff, and in 1871, several years after the tax on the tract for 1864 had been paid into the treasury, the land was certified down from the auditor's office for sale and sold by another sheriff in 1871, and bought by D., who obtained a deed therefor, and J. filed his bill to annul the deed on the ground among others, that the taxes had been paid. Held, that the taxes were paid and the deed should be cancelled. Jones v. Dils, 18 W.Va. 759.
The statute does not limit the right to have the deed set aside, where the taxes have been paid into state treasury in the regular way. If the taxes were actually paid into the state treasury before the sale of the land, then the state had no right to sell the land, and the sale conferred no title. Jones v. Dils, 18 W.Va. 759.
And on a demurrer to the evidence by the defendant in an action of ejectment, where the defendant, for title, relies solely on a tax deed, if the evidence is such that the jury might infer that the tax for which the land was sold had been paid, judgment should be given against him. Brown v. Bradshaw, 100 Va. 124, 40 S.E. 617.
Where Auditor Omits Taxes, Sale to Owner with Notice Invalid.--Where land has been returned delinquent for several years, and the auditor, in certifying the land to the sheriff for sale, through mistake omits to certify the taxes for several of the years for which it was returned delinquent, only certifying the last two years, for which it is sold by the sheriff, a purchase made by the owner, or by one representing the owner at such sale, with notice of such mistake, will confer no title upon the purchaser, nor will such sale prevent the state from collecting the taxes on said land for the years which the auditor failed, through mistake, to certify. State v. Eddy, 41 W.Va. 95, 23 S.E. 529. See Wheeling v. Hawley, 18 W.Va. 472.
Estate Conveyed.--When the proceedings for the return and sale of a tract of land as delinquent for the nonpayment of taxes are such as to confer title upon an individual or the state as a purchaser thereof, such purchaser becomes vested with such estate in and to the land so purchased as at the commencement of, or at any time during, the year for which said taxes were assessed, was vested in the party assessed with said taxes. McGhee v. Sampselle, 47 W.Va. 352, 34 S.E. 815; Summers v. Kanawha Co., 26 W.Va. 159.
Without Warranty--Caveat Emptor.--A sale of land for taxes is without warranty by the state, and it is not prevented thereby from setting up its right under forfeiture for omission to enter the land for taxes either before or after the tax sale. State v. Sponaugle, 45 W.Va. 415, 32 S.E. 283.
But if the tax title be valid, it would prevent such forfeiture for taxes after the tax sale, from its own force, not on the theory of estoppel. State v. Sponaugle, 45 W.Va. 415, 32 S.E. 283.
And in the sales of land under the tax laws, the commonwealth does not warrant either the title or the description of the lands sold: but the rule caveat emptor applies to the purchasers at such sales. Hoge v. Currin, 3 Gratt. 201.
Prevents Another Forfeiture.--A sale of land for taxes valid to pass title of the owner, will prevent its forfeiture for failure to enter it for taxes in the name of the former owner for years subsequent to the tax sale. State v. Sponaugle, 45 W.Va. 415, 32 S.E. 283.
Collateral Attack.--The validity of a sale of land delinquent for nonpayment of taxes, which is regular on its face, cannot be assailed collaterally. Machir v. Funk, 90 Va. 284, 18 S.E. 197; Hitchcox v. Rawson, 14 Gratt. 526. See post, " Force and Effect" IX, H. 1; " Equitable Jurisdiction to Set Aside Illegal Tax Deed," IX, H, 5; ante, " Evidence of Forfeiture," IX, E, 9.
9. Disproportionately Small Price--Effect. --" The sale of so large a tract of land (4000 A.) for so trivial a sum ($ 13.09), if not of itself sufficient to invalidate the sale (as to which we express no opinion), calls upon the court to scrutinize with the greatest care all the proceedings upon which the sale is founded." Hutchings v. Gilmer, 1 Va. Dec. 495, 506; Wilsons v. Bell, 7 Leigh 22.
10. Surveyor's Report and Plat. --Where a sheriff of a county sells land delinquent for the nonpayment of taxes, and the clerk of that county makes to the purchaser a deed for the same, but the purchaser before receiving the deed does not have a report made, according to § 18, ch. 117 of the Acts of 1872-3, by the county surveyor, the deed is null and void. Orr v. Wiley, 19 W.Va. 150; Barton v. Gilchrist, 19 W.Va. 223; Forqueran v. Donnally, 7 W.Va. 114. For the omission to attempt to do what the statute expressly requires to be done, is not an irregularity, but an omission, which is not covered by acts of 1872-3, ch. 117, § 25. Orr v. Wiley, 19 W.Va. 150; Jones v. Dils, 18 W.Va. 759.
But the equitable right or interest, of the purchaser, in such case, where he paid the purchase money and received the sheriff's receipt, was secured by § 1, art. 9 of the Constitution of 1863. Forqueran v. Donnally, 7 W.Va. 114.
Forqueran v. Donnally, 7 W.Va. 114, was decided under a different statute (Acts of 1863), that requiring a survey and plat to be made and returned when less than the whole of a tract is sold for delinquent taxes, but the principle is the same, it would seem.
What Report Must Show.--A surveyor's report was required by our Code to give the metes and bounds of the land, so that it could be located; but it was not required on its face to identify the land surveyed or the land sold by the sheriff for taxes. It would suffice under the provisions in our Code for this necessary identity to be shown by the entry made by the recorder, when the surveyor returned his report, provided the entry was such as it was the official duty of the recorder to make, and showed that the report was returned by the surveyor. Barton v. Gilchrist, 19 W.Va. 223.
It was necessary, that the identity of the land sold by the sheriff with the land named in the surveyor's report should appear on the face of the report or by such proper official entry by the recorder; and if it did not appear in one of these modes, it would be such an irregularity as materially to prejudice the owner of the land sold, and would therefore vitiate a deed made by the recorder to the purchaser. Barton v. Gilchrist, 19 W.Va. 223.
But the failure of the surveyor's report and plat of a part of a tract of land sold for taxes, to show that the length of the part is not more than double the breadth, will not affect a deed made under the sale. Winning v. Eakin, 44 W.Va. 19, 28 S.E. 757.
Recordation Is Ex Parte Proceeding.--The Act, Code of 1873, ch. 38, § § 18, 19, in relation to the sale of land for taxes, is only intended to furnish evidence of the identity of the land sold, not only for the information of the former owner, and all others interested, but for the guidance of the clerk in making the deed. When the purchaser offers the plat and certificate for recordation, the sole duty of the court is to consider whether the plat and certificate, or the report of the surveyor, as the case may be, is in conformity to the requirements of the law in respect to the description and identity of the land. It is no concern of the court whether the purchaser has acquired a title, or whether the owner has properly exercised his right of redemption. The proceeding is ex parte in its character, and does not in the least affect the rights of third persons. Nowlin v. Burwell, 28 Gratt. 883. See post, " Curative Statutes," IX, F, 15.
11. Commissioner of Delinquent and Forfeited Land.
Appointment.--The provision in the act of March 30th, 1837, " to amend and explain the laws concerning western land titles," which directed that commissioners of delinquent lands should be appointed in each county at the next fall term, is merely directory; and such commissioners may be appointed at a subsequent term; and if a new county is afterwards created, such commissioner may be appointed therein. Hoge v. Currin, 3 Gratt. 201.
Authority Must Appear.--The commissioner to make sales under the delinquent land laws has no interest in the subject of sale. He acts like a commissioner to make sales under a decree of the chancery court and is clothed with a mere naked authority. Therefore the deed of such commissioner could avail nothing where his authority to make it did not appear, as in that case where the commissioner had undertaken to make the deed to a person other than a purchaser at his sale. Miller v. Williams, 15 Gratt. 213; Walton v. Hale, 9 Gratt. 194; Rockbold v. Barnes, 3 473; Wilsons v. Bell, 7 Leigh 22; Flanagan v. Grimmet, 10 Gratt. 421.
" And the mere recital of authority in a commissioner's deed would not be evidence against others asserting an adverse claim. Carver v. Jackson, 4 Peters 1, 83; Wiley v. Givens, 6 Gratt. 277; Walton v. Hale, 9 Gratt. 194." Miller v. Williams, 15 Gratt. 213.
Successor Cannot Convey.--J., a commissioner of forfeited and delinquent land, sells a tract of land and receives the purchase money. He is then removed and B. is appointed in his place. B. has no authority to convey the land to the purchaser; and his conveyance does not pass the title. Miller v. Williams, 15 Gratt. 213.
In such a case the court must make an order directing B. to convey the land before he can make a valid conveyance. Miller v. Williams, 15 Gratt. 213.
Two Commissioners--One May Act.--Where there are two commissioners of forfeited and delinquent lands in one county, they are not required to act jointly; but each may act separately, and his deed will convey title to land sold by him. Miller v. Williams, 15 Gratt. 213; Hitchcox v. Rawson, 14 Gratt. 526. See ante, " By Whom Made," IX, F, 7; post, " The Execution," IX, H, 4.
12. The Delinquent List.
What It Must Show.--The delinquent list must conform to the requirements of the statute, which are that the name of the person, the residence, the estate held, the quantity of land, the description and local situation of the land, distance and bearing from the courthouse, amount of taxes, and why returned delinquent, should all be specified. Here none of these appear plainly, and some not at all. Hutchings v. Gilmer, 1 Va. Dec. 495. But see post, " Curative Statutes," IX, F, 15.
Examination by Court.--The failure of the record to show that the list of delinquent lands was examined by the county or corporation court, or the judge thereof in vacation, constitutes a fatal defect in the title. Hutchings v. Gilmer, 1 Va. Dec. 495.
Certification.--A board of supervisors of a county have no power under the general statutes of this commonwealth to certify amended and supplemental delinquent tax returns by the treasurer. Acts 1874-5, p. 347 et seq. and Acts 1877-8, p. 183, et seq. ; Board of Supervisors of Henrico Co. v. McGruder, 84 Va. 828, 6 S.E. 232.
Necessary Affidavit.--The law requires the sheriff to append to his return of delinquent lands a prescribed affidavit. If he omits to do so, and such land is subsequently sold by the sheriff, and by him purchased on behalf of the state, such omission will vitiate the sale, and the state will thereby acquire no title to the land. McGhee v. Sampselle, 47 W.Va. 352, 34 S.E. 815.
Time of Appending Affidavit Immaterial.--The fact that the sheriff did not append his affidavit to the delinquent list before posting the same at the front door of the courthouse, instead waiting until he presented the same to the county court, is, it would seem, an immaterial technicality, not at all misleading the land owner. White v. Wilkinson, 51 W.Va. 196, 41 S.E. 136.
Evidence Aliunde Inadmissible on Loss.--The report of the forfeited lands in the county being lost, and the report of the sale of the land not showing plainly the land sold or the interest which the person in whose name it was forfeited held therein, it was not competent for the commissioner to resort to evidence aliunde to ascertain these facts; and therefore his deed is invalid. Miller v. Williams, 15 Gratt. 213.
Posting the List.--In order that lands may be legally returned delinquent, a copy of the delinquent lists must be posted at the front door of the courthouse of the county at least two weeks before the session of the county court at which they are presented for examination. Sommers v. Ward, 41 W.Va. 76, 23 S.E. 520.
Must Show in Whose Name Delinquent. --In Dequasie v. Harris, 16 W.Va. 345, this court, by Green, President, said: " The failure of the report of the sheriff to show, in whose name the land in controversy was taxed for the year 1870 for the delinquency to pay the taxes of that year, being in part the basis of the sale, was not a mere irregularity, which might be cured either by this provision in the Code or in the acts of 1872-3, but it was an omission in a material and essential particular, which could not be cured by the recitals in the deed, and which necessarily vitiated the tax deed." Jones v. Dils, 18 W.Va. 759.
13. List of Sales.
Must Be Returned in Ten Days.--The failure of the officer to make his return of the delinquent sales within the ten days required by statute, must be regarded as such an omission and irregularity as will vitiate any deed made by the clerk in pursuance thereof. McGhee v. Sampselle, 47 W.Va. 352, 34 S.E. 815, 817; Barton v. Gilchrist, 19 W.Va. 223.
Failure to Note Return Fatal.--If the clerk of the county court omits to note in his office the day on which the sheriff returns to his office the list of lands sold for delinquent taxes, such omission will render any deed made to the purchaser of lands so sold and returned, invalid. Simpson v. Edmiston, 23 W.Va. 675; Barton v. Gilchrist, 19 W.Va. 223; McCallister v. Cottrille, 24 W.Va. 173: De Forest v. Thompson, 40 F. 375.
Copying and Transmission to Auditor.--But the fact that the office shows, that such list was not copied on the record book for more than twenty days after the return of the list to that office, or that it was not transmitted to the auditor within these twenty days, or the fact that the office failed to show, when such list was actually copied on the record book or when it was transmitted to the auditor, will not invalidate a deed made by the recorder, though but for the curative statute it would probably do so, for by law these facts are not required to appear in the recorder's office, and if they did appear by an unofficial act of the recorder, they could have no effect to invalidate the deed of the purchaser. Barton v. Gilchrist, 19 W.Va. 223.
For it was not the official duty of the recorder to note when he actually copied such list on the record book, nor when he transmitted it to the auditor. Barton v. Gilchrist, 19 W.Va. 223.
Affidavit Required.--The law requires the sheriff to append to his return of sales of delinquent lands a prescribed affidavit. If he omit to do so, or omit from such affidavit a material or substantial portion of it as so prescribed, the clerk should not make the purchaser a deed. Jackson v. Kittle, 34 W.Va. 207, 12 S.E. 484; McGhee v. Sampselle, 47 W.Va. 352, 34 S.E. 815.
Omission to Deny Former Interest.--The omission by the sheriff, from his affidavit appended to his list of sales of delinquent lands, of the words: " Nor have I at any time been directly or indirectly interested in the purchase of any of said real estate," is not an irregularity but a fatal defect in the sale, raising a presumption of the violation of § 9, ch. 31 of the Code, and invalidates a deed made in pursuance of such sale. McClain v. Batton, 50 W.Va. 121, 40 S.E. 509; State v. Eddy, 41 W.Va. 95, 23 S.E. 529. See contra, Boggess v. Scott, 48 W.Va. 316, 37 S.E. 661, where it is said that, no irregularity in the affidavit to a list of lands sold for taxes will, after deed made and recorded, invalidate such deed, but it is otherwise before such deed is made.
" 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; Jackson v. Kittle, 34 W.Va. 207, 12 S.E. 484; Baxter v. Wade, 39 W.Va. 281, 19 S.E. 404, hold such a defeat sufficient to prevent a deed under the sale; and Phillips v. Minear, 40 W.Va. 58, 20 S.E. 924, goes further, and holds that such defeat will not merely prevent the execution of a deed under the sale, but will avoid a deed." Winning v. Eakin, 44 W.Va. 19, 28 S.E. 757; Johnson v. Minear, 40 W.Va. 160, 20 S.E. 926, follows Phillips v. Minear, 40 W.Va. 58, 20 S.E. 924.
Defect Only in Record.--But if the defect is only in the affidavit as recorded in the clerk's office of the county court, but did not in fact exist in the original affidavit found in the auditor's office, such defect will not affect the deed under the tax sale. Winning v. Eakin, 44 W.Va. 19, 28 S.E. 757; Nuzum v. McEldowney, 46 W.Va. 207, 32 S.E. 1024.
Oral Evidence Incompetent to Cure Defect.--If an affidavit of a sheriff to a list of sales of delinquent lands is irregular, in not showing that the sheriff had no interest in the sale, the irregularity cannot be cured by oral evidence of his want of such interest. Boggess v. Scott, 48 W.Va. 316, 37 S.E. 661.
Omission of, " as Well as a List, etc." --An omission from an affidavit to a list of sales of delinquent lands of the words, " as well as a list of all the real estate redeemed, and the names of the persons who redeemed the same," will not vitiate a sale for taxes after deed made. Kendall v. Scott, 48 W.Va. 251, 37 S.E. 531; Jackson v. Kittle, 34 W.Va. 207, 12 S.E. 484.
Failure of List to Show Estate Held--Effect.--The omission to state, in the list of sales returned by the sheriff, the estate held by the owner in the tract sold, is an irregularity which is cured after the tax deed is executed. State v. Sponaugle, 45 W.Va. 415, 32 S.E. 283, disapproving the contrary opinion expressed in Jones v. Dils, 18 W.Va. 759; Barton v. Gilchrist, 19 W.Va. 223.
Charged " to Heirs," Sufficient.--The nature of the estate sold does appear in this list (where land sold was charged to the heirs, as appeared by the list), as none but a fee simple estate descends or can be held by heirs, and this mode of charging the land implied, necessarily, that the estate sold was a fee simple, and therefore this irregularity would not vitiate the deed. Barton v. Gilchrist, 19 W.Va. 223.
Showing Hour and Place of Sale.--The failure of a list of sales to show that the sale was at the front door of the courthouse or between the hours of 10 a. m. and 4 p. m. will not affect the deed under a tax sale. Winning v. Eakin, 44 W.Va. 19, 28 S.E. 757: Nuzum v. McEldowney, 46 W.Va. 207, 32 S.E. 1024.
Failure to Show in Whose Name Delinquent.--Under chapter one hundred and seventeen of the acts of 1872-3, if the report of tax sales recorded in the county clerk's office fails to show in whose name a particular tract of land was charged for a certain year, and this tract of land is sold for the taxes delinquent for that year only or for that year and other years jointly, the tax deed executed by the clerk of the county court, though in due form, and though it recites in whose name the tract of land was charged for each year, will be held, when said report is produced, as null and void. The material fact cited in the deed, that it was taxed in the name of a certain named party for such year, while prima facie true, may be contradicted by the production of the sheriff's report of the sales. Dequasie v. Harris, 16 W.Va. 345.
Act of 1886--Failure to Continue or Confirm Fatal--As to Purchaser without Notice of Sale.--The act of February 26, 1826, § 5, provides that within thirty days after a tax sale, treasurer shall report same to county court at its next term, which shall enter of record the fact of return of report, and shall continue the matter until the next term for exceptions to be filed by any person affected thereby; and if no cause be shown to the contrary, the court shall confirm the sale and make it binding upon the parties in interest; and a writ of possession may be granted to the purchaser at any time thereafter on demand. A sale made December 19, 1887, under said act to appellant, was reported as therein directed, but not continued to the next term for exceptions, and never at that, or any other term, confirmed, no writ of possession, and purchaser never had possession. Six months later same land was sold under decree of the circuit court, and the sale was duly confirmed and the purchaser, the appellee, paid the entire purchase money and received his deed of conveyance, and the possession, which he held for nearly two years, without notice, actual or constructive of the tax sale. At its January term, 1890, the county court made an order requiring a plat and a certificate of survey of said property made by the county surveyor and returned to the court by the appellant, and reciting the purchase by the appellant of said land at a sale of lands delinquent for taxes by said treasurer as aforesaid, to be recorded, and that the clerk make the necessary deed conveying said land to the appellant, which deed was accordingly made. In a suit in chancery brought by appellee to remove from his title the cloud thereon occasioned by said tax deed, the circuit court rightly adjudged the latter deed null and void. Boon v. Simmons, 88 Va. 259, 13 S.E. 439.
Example of Insufficient Report.--Report of officer selling land as delinquent for taxes, not sworn to until one year after day of sale, showing that the land owners were chargeable with the delinquent taxes, the quantity of land, the amount of taxes and penalty, and the amounts of liens and penalty, the aggregate whereof making the amount of purchase money at which the claimant became purchaser at the sale, but entirely omitting the residence of the owners, the estate held, the local description of the land, the distance and bearing from the courthouse, and amount of county levy, and misstating the years for which the taxes were delinquent, is not in conformity with the requirements of the statute under which the sale was made, and the purchaser acquired no valid title to the land. Bond v. Pritt, 89 Va. 474, 16 S.E. 666. (Here no tax deed had been executed, and an injunction was being sought against such a deed.)
14. Regularity of Sale--Burden of Proof.
What Purchaser Formerly Had to Show.--The sheriff cannot sell land for nonpayment of taxes without showing that it had been actually taxed, by the commissioners valuing and rating it, and returning it in their list to the clerk, and a party claiming under a tax deed from the sheriff must produce the evidence of this, from said tax lists. Nalle v. Fenwick, 4 585.
He must also show in the same way that the amount of taxes, for which the distress and sale were made, was actually due. Nalle v. Fenwick, 4 585.
The act of 1781 required that where land was distrained for taxes there should be given at least four weeks' notice in the public papers before any sale should be made of the same, and the claimant under a tax deed for such land must make it appear in evidence that such advertisement was made. Nalle v. Fenwick, 4 585; Williams v. Peyton, 4 Wheat. 77.
This proviso of the act of 1781, though not contained in the law of 1782, was yet not repealed thereby, as both laws might well stand together. Nalle v. Fenwick, 4 585. See Yancey v. Hopkins, 1 Munf. 419.
And even had it been repealed, still the due notice and advertisement required by the act of 1782, for sales of personal chattels, must be shown to have been given. Nalle v. Fenwick, 4 585; Williams v. Peyton, 4 Wheat. 77.
Now the deed itself is prima facie evidence of compliance with these prerequisites. Flanagan v. Grimmet, 10 Gratt. 421.
Act of 1809 and 1814.--The 8th section of the act of 1809 reversed the rule established and so long enforced by the repeated decisions of this and other courts. Instead of throwing on the claimant the burden of showing that every prerequisite to the sale had been complied with, it made the deed itself prima facie evidence of such compliance, and sufficient to pass the title of the former owner, until it was successfully impeached by proof of irregularity coming from the contesting party. Flanagan v. Grimmet, 10 Gratt. 421; Hutchings v. Gilmer, 1 Va. Dec. 495.
If the 8th section of the act of 1809 was not embraced by the provisions of the act of 1814, then it did not come within the purview of the latter act; and being in pari materia, and not inconsistent with any portion thereof, it continued in full force. But as the latter act, in my view, contains substantially the same provision, the question ceases to be of much interest. Flanagan v. Grimmet, 10 Gratt. 421.
Purpose in View.--The act of Feb. 6, 1809, and the subsequent one of Feb. 9, 1814, were passed with two ends in view. It was necessary on one hand, to protect the owner who had paid his taxes; and on the other, to give to those who were invited to purchase land sold by the officer of the law something like a reasonable assurance of acquiring a good title, to justify them in paying taxes thereafter and improving the land. Flanagan v. Grimmet, 10 Gratt. 421.
The act of 1814, so far as it respects sales under this law, was designed to abrogate the rule which required the claimant to prove that all the prerequisites of the law had been complied with. His deed furnished prima facie evidence of title when made by the officer of the law. Upon this he could rest unless its irregularity was shown by the contesting party; and after the time limited it could be questioned for such irregularities only as appeared on the face of the proceedings. Flanagan v. Grimmet, 10 Gratt. 421.
By the provision in the first act the cause of sale was to be recited in the deed. The cause of sale was the nonpayment of taxes for which it was returned delinquent. The last act was more specific, and required the circumstances of the sale, and the amount of the purchase money to be recited. Flanagan v. Grimmet, 10 Gratt. 421.
" Circumstances of Sale." --The court said: " By the circumstances of the sale, I do not understand that the deed is to recite all the steps to be taken by the various officers which preceded the sale, but the circumstances attending the sale itself. That is to say, that the sale was made at the time and place prescribed for the sale of lands returned as delinquent; that the subject of sale was land so re-returned as delinquent; if less than the whole lot or tract was sold, how much was sold, who was the purchaser, and the amount of the purchase money. These are the circumstances attending the sale; they show the cause of it; and the deed need contain no other recitals." Flanagan v. Grimmet, 10 Gratt. 421.
Need Not Set Out Advertisement.--The validity of the deed does not depend upon its containing a recital that the land was advertised, and the failure to set forth the mode in which it was so advertised should not vitiate it. Flanagan v. Grimmet, 10 Gratt. 421.
Nor is it fatal to set forth in the deed in a general way the proceedings by advertisement and sale, though it is surplusage, provided they be not inconsistent with the fact that the sale was advertised as required by law. Flanagan v. Grimmet, 10 Gratt. 421, 437.
The deed should have been admitted to go in evidence to the jury, as prima facie evidence of title, though it might have been ineffectual to pass title. It was competent to show, by the deed and other evidence, an actual entry under a claim of title, and a continued holding thereunder, so as to make out a title or right of entry by actual possession. Flanagan v. Grimmet, 10 Gratt. 421.
As holding that, under a sale made by a sheriff under the statute of 1814 for taxes in arrear, the one claiming under the sheriff's deed must show that the sheriff strictly pursued the statute in the steps preparatory to the sale, the case of Chapman v. BennettLeigh 329, was cited in Hays v. Heatherly, 36 W.Va. 613, 15 S.E. 223. See in accord, foot-note to Wilsons v. Bell, 7 Leigh 22. But see foot-note to Flanagan v. Grimmet, 10 Gratt. 421.
Rule Changed by " Flanagan v. Grimmet." --The decision in Flanagan v. Grimmet, 10 Gratt. 421, reversed the rule so long established and enforced by repeated decisions of this court, and, instead of making it incumbent upon the claimant under a sale of delinquent land to show that every prerequisite to the sale had been complied with, it made the deed itself prima facie evidence of such compliance, and sufficient to pass the title of the former owner, until it was successfully impeached by proof of irregularity coming from the contesting party. Bond v. Pettit, 89 Va. 474, 16 S.E. 666.
But this presumption in favor of the regularity of the proceedings attaches only after a valid deed has been executed. Bond v. Pettit, 89 Va. 474, 16 S.E. 666.
A purchaser at a sale of lands made by a commissioner of delinquent lands, is not bound to prove that all the previous proceedings of the commissioner and the court were regular. The proceeding is one in the nature of a judicial proceeding, and the orders and decree of the court made in it are conclusive, at least upon strangers. Smith v. Chapman, 10 Gratt. 445; Twiggs v. Chevallie, 4 W.Va. 463. See this case criticized in McClure v. Maitland, 24 W.Va. 561; foot-note to principal case.
Title of Former Owner Must Be Shown.--To make a tax deed available as a muniment of title, it must be shown at some stage of the trial that a person in whose name the same was returned delinquent, his heir, devisee or other person claiming by, through or under him, had title. Flanagan v. Grimmet, 10 Gratt. 421.
Officer's Authority. --Where land was sold by a deputy sheriff for his principal for nonpayment of taxes, and a conveyance made by the deputy, it was indispensably necessary to prove that the one was sheriff and the other his deputy. Rockbold v. Barnes, 3 473; Flanagan v. Grimmet, 10 Gratt. 421.
The recitals in a tax deed were not evidence, without other proof, of the authority of the officer executing it to make the conveyance. Christy v. Minor (1810), 4 Munf. 431.
And this was true of any other act in pais or matter of record on which the validity of the deed depended. Allen v. Smith, 1 Leigh 231; Williams v. Peyton, 4 Wheat. 77.
And no lapse of time, other than what would cure the absence of any other link in the chain of title to real property, would supply by presumption the want of such evidence. Allen v. Smith, 1 Leigh 231.
And no vague statement in the deposition of the collector of direct taxes, that he had advertised and made the sales in exact pursuance of the acts of congress in relation thereto, would be sufficient. Jesse v. Preston, 5 Gratt. 120, citing and approving Allen v. Smith, Williams v. Peyton, supra, and distinguishing and approving Robinett v. Preston, 4 Gratt. 141. That was the case of a sale of land by a sheriff under an execution. Actual possession had been taken and held by the party claiming under the sale and deed of the sheriff for a sufficient length of time to bar a recovery by the original owner, if the possession could be considered adverse to his title, and, to support the possession, the presumption of the regularity of the proceedings was allowed.
Tax Purchasers Necessary Parties to Suit against Land.--The object of the plaintiff in a suit to enforce the lien of a judgment against certain land as the property of the judgment debtor, which is claimed by others under a tax deed therefor, being to remove the obstruction raised by the sale of the sheriff, the only necessary parties thereto are those who claim title under that proceeding. Nalle v. Fenwick, 4 585.
All Requirements Must Be Strictly Observed. --Whenever an authority is given to any person, or officer, by law, whereby the estates or interests of other persons may be forfeited and lost, or otherwise affected, such authority must be strictly pursued in every instance. And any omission, or mistake, in the performance of those duties which the law prescribes will vitiate the whole proceeding. Yancey v. Hopkins, 1 Munf. 419; Allen v. Smith, 1 Leigh 231; Jesse v. Preston, 5 Gratt. 120; Hutchings v. Gilmer, 1 Va. Dec. 495; Carroll v. Brown, 28 Gratt. 791.
And still all acts prescribed by the statute must be performed in the place, manner and time therein named. Every provision in which the owner can possibly have an interest must be strictly obeyed, else the tax title will be void. The maxim, caveat emptor, applies with great force to the purchaser. Boon v. Simmons, 88 Va. 259, 13 S.E. 439. (Here a tax deed had issued.)
When the validity of a deed depends upon acts in pais, the party claiming under it is bound to prove performance of those acts; and unless there be some statute making the recitals in the deed of the person making the sale prima facie evidence of the regularity of the proceedings, the acts in pais relied on to sustain the sale must be proved by evidence aliunde. Flanagan v. Grimmet, 10 Gratt. 421, 425-6, and cases cited; Walton v. Hale, 9 Gratt. 194 197-98; Reusens v. Lawson, 91 Va. 226, 236, 21 S.E. 347; Deputron v. Young, 134 U.S. 241, 256-7; Sulphur Mines Co. v. Thompson, 93 Va. 293, 25 S.E. 232.
Effect of Code of 1860.--The principle that where a naked power is given by law to an officer or other person, that power must be strictly pursued, especially if by the exercise of that power, the estates or rights of others may be forfeited or lost and that it will devolve on him who claims a right, under the exercise of such power, to show that it was in all respects pursued, in its application to tax titles, was not affected by the provision contained in § 23, ch. 37 of the Code of 1860, except that since that enactment the irregularities must appear on the face of the proceedings. No change was made in the nature or degree of the irregularity in the proceedings, but only in the evidence required of its existence. The effect of the statute was to shift the onus probandi : and whereas, before, it was incumbent on the claimant under a tax title to prove affirmatively that all the requirements of law had been complied with, it is now necessary for those claiming against the tax title, to show irregularities apparent on the face of the proceedings. Hutchings v. Gilmer, 1 Va. Dec. 495. See Boon v. Simmons, 88 Va. 259, 13 S.E. 439.
In a case in which such irregularities are clearly shown, the deed of a purchaser of land at a tax sale, will be annulled. Hutchings v. Gilmer, 1 Va. Dec. 495.
But the term " irregularities appearing on the face of the proceeding" cannot be applied to mere acts in pais, such as the advertising of sale, and the tax deed cannot be questioned, after the time for redemption has elapsed, by parol proof of the failure to advertise the sale as the law prescribes. Flanagan v. Grimmet, 10 Gratt. 421.
Proceedings Defective on Face.--Where the proceedings appearing in the office of the clerk of the county court, upon which a tax sale and deed are founded, show fatal defects, the grantee in such deed will not be regarded as a bona fide purchaser; nor will his vendee be treated as a bona fide purchaser; because a purchaser of land for taxes and all his vendees are deemed to have notice of whatever defects the records in the county clerk's office, on which his deed is founded, disclose. The rule of caveat emptor applies strictly. Simpson v. Edmiston, 23 W.Va. 675.
Lapse of Time--Effect.--" Mere lapse of time will not, of itself, afford presumptive evidence of the regularity of a tax sale, if the purchaser and those claiming under him have not had possession under the deed; that is, the antiquity of a tax deed, if no possession has been taken under it, affords no presumption in its favor, but on the contrary, operates the more strongly against the holder. But where the tax purchaser has been in possession the case is different. Here the responsibility for failure to institute proceedings to test the validity of the title rests alone upon the original owner." Lennig v. White, 1 Va. Dec. 873.
Thus, where property was sold for taxes eighty years ago, during which time the former owners have acquiesced in the sale, and in the possession of the purchaser and his grantees, and where the records of the court in which the proceedings were had have been largely destroyed by fire and war, the sale will be presumed to be valid. Lennig v. White, 1 Va. Dec. 873.
15. Curative Statutes.
Scope and Effect.--Section 25, ch, 117 of Acts of 1872-3 (curing defects) does not dispense with doing or attempting to do any act required by the statute; but the most that can be said of it is, that where an attempt has been made to comply with a requirement of the statute, but with such imperfect success, as to show irregularities in the attempt, such irregularities shall not render the deed void, except under the circumstances stated in the statute. Orr v. Wiley, 19 W.Va. 150.
It is not the object or effect of the curative § 25 of ch. 31 of Code to impair or in any way or to any degree affect § 9 of ch. 31, or to prescribe that its violation may not be shown by implication. Phillips v. Minear, 40 W.Va. 58, 20 S.E. 924.
What Requirements Essential--For Legislature to Say.--To say that the legislature has enacted that certain proceedings are necessary to the validity of a sale of real estate for taxes and at the same time to say that the omission of any of such proceedings is mere irregularity is absurd. If any of such proceedings may be omitted, why not all? How can we say which is material and which is not? The legislature prescribes the rule, not the courts; and we must regard all the requirements of the statute as alike essential. Whether the thing required has been substantially done or not is a question for the courts. Jones v. Dils, 18 W.Va. 759; Orr v. Wiley, 19 W.Va. 150.
" The true construction is that the courts must determine whether the particular irregularity is such as would mislead a man of ordinary intelligence, and was calculated to prevent him from redeeming his land, and thus materially prejudice his rights. If the irregularity was of this character, and would naturally produce this result, it vitiates the tax deed; otherwise, it does not." Carrell v. Mitchell, 37 W.Va. 130, 16 S.E. 453; McCallister v. Cottrille, 24 W.Va. 173; Williamson v. Russell, 18 W.Va. 612.
Receipt to Purchaser.--The requirement of § 655 of the Code of Virginia, that a receipt shall be given by the treasurer to the purchaser for the amount of purchase money received by him, " is obviously intended for the protection of the purchaser," and hence would not seem to be an essential step in the proceeding. Bond v. Pettit, 89 Va. 474, 16 S.E. 666. See to same effect, Burlew v. Quarrier, 16 W.Va. 108.
Does Not Authorize Parol Evidence.--Section 25 of ch. 117 of the acts of 1872-3, to cure irregularities prior to the execution of tax deeds, does not authorize the introduction of parol testimony to effect the validity or the invalidity of a tax deed. But the legal construction and effect of said provision is to declare that the court or jury shall determine from the proceedings of record, on which such deed is founded, and from the face of such deed itself, whether or not any such irregularity appears thereon as would mislead a man of ordinary business capacity, and was of such a character as would be calculated to prevent the owner from redeeming his land and thus materially prejudice his rights. And if such irregularity thus appears, it must be conclusively presumed that the owner was thereby prejudiced and his rights materially affected and such deed must be held and declared void. McCallister v. Cottrille, 24 W.Va. 173; Carrell v. Mitchell, 37 W.Va. 130, 16 S.E. 453; Williamson v. Russell, 18 W.Va. 612.
Constitutionality.--Laws enacted to give confidence to purchasers in the sufficiency of tax titles, and thereby to promote the most efficient means of collecting delinquent taxes, but which give to a land owner the absolute right of redemption for two years after his land has been sold for taxes, cannot be said to be in contravention of the fourteenth amendment of the constitution of the United States, which provides " that no man shall be deprived of his property without due process of law," because they cut off all defenses except that the taxes were not chargeable or had been paid. Section 661 of the Code is a valid exercise of the legislative power. Citing and following Flanagan v. Grimmet, 10 Gratt. 421; Hobbs v. Shumates, 11 Gratt. 516; Va. Coal Co. v. Thomas, 97 Va. 527, 34 S.E. 486.
Quoere, whether that part of § 25, ch. 117, Acts 1872-3, is constitutional, which declares: " No irregularity or over charge as to a part of such taxes or purchase money, nor payment of a part of such taxes, shall invalidate the sale except as to a part of the real estate so sold, proportioned to the whole thereof, as such part of the taxes or purchase money is to the whole thereof?" Campbell v. Wyant, 26 W.Va. 702.
Fully Appllicable Only after Deed Made.--In a suit brought to enforce a judgment lien against a tract of land, a party who presents a petition, and is made defendant, claiming an equitable title to a portion of the land by reason of his purchase thereof at a sale made by the sheriff for nonpayment of taxes, stating that he has not yet obtained a deed therefor, will not be protected by the last clause of § 25, ch. 130 of the Acts of 1882, as to irregularities and defective performance of his duties by the sheriff with reference to said sale, to the same extent as he would if he had obtained a deed for said land before he became a party to said litigation. Curtis v. Borland, 35 W.Va. 124, 12 S.E. 1113.
Such an irregularity is the failure to return the sheriff's affidavit to the delinquent list to the clerk's office within thirty days after the completion of the sale, as required by § 14, ch. 130 of Acts 1882. Curtis v. Borland, 35 W.Va. 124, 12 S.E. 1113.
Not Retroactive.--The curative provisions of § 25, ch. 31 of the Code 1899 are not retroactive in their operation, and therefore they only apply to tax sales made after they were passed. Collins v. Sherwood, 50 W.Va. 133, 40 S.E. 603. See Forqueran v. Donnally, 7 W.Va. 114.
Examples of Defects Cured.--That the delinquent list for the year 1890 omits to state the " estate held," or why the lot was returned delinquent, and that the sheriff's report and list of sales omits to show the amount of school district and independent school district taxes due thereon, including interest and commissions; and that, while the caption of such list shows the sale to have been made the 9th of December, 1891, the affidavit appended thereto states that the said list contain a true account of the real estate sold during the present year, and it is not sworn to until the 12th day of January, 1892, are all cured by the provisions of § 25; ch. 31, of the Code. Gerke Brewing Co. v. St. Clair, 46 W.Va. 93, 33 S.E. 122. See ante, " Surveyor's Report and Plat," IX, F, 10; " The Delinquent List," IX, F, 12; " List of Sales," IX, F, 13.
16. Sale of Lands Acquired by State.
a. In Virginia.
The Application.--An application to purchase land which has been previously purchased by the commonwealth for delinquent taxes, stating: " I hereby make application to purchase a tract of land standing in the name of E. H. Lewis, and being town lot, etc., purchased by the commonwealth of Virginia, or auditor of the state of Virginia, at the sale of delinquent lands, December, 1892, for 1891 taxes, and at the date of the application standing in the name of E. H. Lewis," is a substantial compliance with the statute which declares that the application shall state in whose name the land stood at the date of the purchase by the commonwealth, and also the person in whose name it stands when the application is filed. Lewis v. Coons, 96 Va. 506, 31 S.E. 904.
An application to purchase lands which have been purchased by the commonwealth for delinquent taxes, which offers to pay the amount paid by the commonwealth for its purchase " and all subsequent taxes, penalties, costs and levies," is insufficient in that it omits the interest provided by law. An offer to pay the amount required by law is sufficient, but if the application specifies what the applicant will pay, it must embrace everything required by law. Lewis v. Coons, 96 Va. 506, 31 S.E. 904; Baker v. Briggs, 99 Va. 360, 38 S.E. 277.
Service Thereof.--Semble, that the application for purchase, under Acts 1895-6, p. 219, of land previously sold for taxes and bought by the state, might be served on a nonresident by an officer acting as a private individual without the state, with the same effect as an order of publication duly executed, provided he made his return conform to the requirements of § 3232 of the Code. Thomas v. Jones, 94 Va. 756, 27 S.E. 813.
Purchase Money Must Be Tendered Therewith.--Under the act of assembly approved January 29, 1896, for the purchase of real estate previously purchased by the commonwealth for delinquent taxes and levies, the applicant to purchase must tender the purchase money along with his application. While the act contains no express provision on this subject, a cash sale is in accordance with the settled policy of the state on the subject, and this policy will not be departed from unless the statute, expressly or by fair implication, requires it. Brooke v. Turner, 95 Va. 696, 30 S.E. 55.
Fees Must Be Paid or Secured.--The fees prescribed by § 666 of the Code, as amended (Acts 1899-1900, p. 855,) are intended to compensate the officers for the services therein enumerated, but other incidental duties are imposed upon the clerks, the compensation for which is not specifically provided, and for which they are entitled to demand the fees allowed by ch. 172 of the Code. If these are not paid or secured, the clerk may refuse to receive and file an application to purchase from the commonwealth. Stone v. Caldwell, 99 Va. 492, 39 S.E. 121.
Clerk's Charge for Statement.--On an application to purchase delinquent lands from the commonwealth, the clerk is entitled to charge for only one statement of the amount of purchase money required, and one calculation of interest for the entire time the land was delinquent, although it may have been delinquent for a number of years. Stone v. Caldwell, 99 Va. 492, 39 S.E. 121.
Clerk Receives Money and Makes Deed.--The clerk of the court of the county or corporation wherein land is situated is the representative of the state to receive the taxes due upon land sold for delinquent taxes and purchased by the state, whether from the owner or an applicant. He, and not the auditor, is the proper party to enjoin from receiving money from, and making a deed to, a proposed purchaser from the commonwealth, and the statute conferring jurisdiction on the circuit court of the city of Richmond of all suits by or against the commonwealth has no application. The clerk is not only a proper but a necessary party to such a suit. Baker v. Briggs, 99 Va. 360, 38 S.E. 277.
A bill in equity will lie to enjoin a clerk from receiving the money on an insufficient application to purchase delinquent land, and from making a deed to the purchaser. In such case mandamus may not be an adequate remedy to compel a clerk to receive money tendered by the former owner. Baker v. Briggs, 99 Va. 360, 38 S.E. 277.
Former Owner's Rights.--After the purchase by the commonwealth of land sold for delinquent taxes, the former owner and those claiming under him have only a right of redemption in the land, which must be exercised in the mode prescribed by law. Until redeemed, there can be no further sale for taxes, nor can the former owner, before redemption, maintain a suit to vacate a second sale for delinquent taxes, or to remove an alleged cloud upon his title by reason of such sale, as the whole title, legal and equitable, is vested in the commonwealth by the first sale. Parsons v. Newman, 99 Va. 298, 38 S.E. 186; Baker v. Buckner, 99 Va. 368, 38 S.E. 280.
Survey and Report--When Necessary.--Under § 666 of the Code, as amended by Acts 1897-98, p. 343, the applicant to purchase has no right to a deed until the survey and report therein required have been made, unless the corporation court has decided that such survey is unnecessary. Glenn v. Christian, 96 Va. 679, 33 S.E. 1015.
Where a corporation court has, under the provisions of § 666 of the Code, as amended by Acts 1897-98, decided that an additional survey need not be made because a sufficient description of the lot can be obtained from the records, there is no necessity for a report by the city engineer, and hence mandamus will not lie to compel him to make such report. Glenn v. Cutshaw, 96 Va. 677, 33 S.E. 1015.
No Second Sale Until Redemption.--Where land has been sold for delinquent taxes and purchased by the commonwealth it cannot be again sold for taxes until it has been redeemed, and if, being still unredeemed, it is subsequently sold and conveyed to a purchaser it should not be transferred to the purchaser on the books of the commissioner of the revenue. Dooley v. Christian, 96 Va. 534, 32 S.E. 54; Glenn v. Brown, 99 Va. 322, 38 S.E. 189; Parsons v. Newman, 99 Va. 298, 38 S.E. 186; Baker v. Buckner, 99 Va. 368, 38 S.E. 280.
But if so transferred and returned delinquent in his name and sold for taxes, the owner, at the date of the first sale, still has the right to redeem, and any applicant to purchase under § 666 of the Code, as amended by the act of February 11, 1898, must proceed under the first sale and give notice to the owner at that time, as provided by said act. He is the " previous owner" contemplated by the act, and may redeem without paying the five dollars penalty prescribed by that act until a proper application to purchase is filed, in which he is named as the previous owner. Dooley v. Christian, 96 Va. 534, 32 S.E. 54.
A second sale for taxes, however, and a deed made in pursuance thereof to a purchaser from the commonwealth, casts a cloud upon the title, which the former owner may file his bill to have removed after redemption under the first sale, but not before. Glenn v. Brown, 99 Va. 322, 38 S.E. 189. See ante, " After Delinquency and Sale, or Forfeiture," II, A, 7.
Right to Penalty.--The right to the five dollars penalty to the applicant to purchase lands previously purchased by the auditor for delinquent taxes, provided by the act of February 11, 1898, attaches immediately upon the filing of the application to purchase, and before the copies provided for by the act have been issued or served upon any of the persons mentioned therein. Brown v. Christian, 96 Va. 254, 31 S.E. 21.
Waiver of State's or City's Rights.--The state or city may waive its claim as a purchaser of land sold for delinquent taxes upon payment of the sum due for taxes, and permit the heirs and creditors of the former to assert their rights to the property in subordination to the amount so due. The state's purchase of the land for delinquent taxes does not deprive the widow of her right to insist upon her homestead as against creditors of her husband. Davis v. Davis, 101 Va. 230, 43 S.E. 358.
When Right to Make Defenses Cut Off.--In the case of tax titles acquired under § 666 of the Code, it is not the lapse of two years which cuts off the former owner from inquiring into the various steps by which his title has been divested, but that effect, according to the terms of the statute, is only produced by the execution of the deed by the clerk, and its recordation. Thomas v. Jones, 98 Va. 323, 36 S.E. 382.
In order to acquire title to lands purchased by the commonwealth for delinquent taxes, the proposed purchaser must comply with all the provisions of § 666 of the Code. When he has done this and rightly gotten his deed, he comes within the protection of § 661, and no question can be raised as to the regularity of the proceedings by which the commonwealth acquires its title, except as therein provided, but he is not entitled to the benefit of § 661 until he has complied with all the provisions of § 666. Among the provisions of § 666, as amended, to be complied with, is the duty to give notice of an intended application to purchase to persons holding liens on the land. Va. B. & L. Co. v. Glenn, 99 Va. 460, 39 S.E. 136.
Constitutionality.--The act approved February 11, 1898, amending and re-enacting § 666 of the Code, in relation to the sale of lands previously purchased by the commonwealth for delinquent taxes, is not in conflict with art. 10, § 11 of the Constitution of the state. The act does not impose, continue or revive any appropriation of public or trust money, nor does it release, discharge or commute any claim or demand of the state, and a recorded vote on its passage was not necessary to its validity. Christian v. Taylor, 96 Va. 503, 31 S.E. 904; Baker v. Briggs, 99 Va. 360, 38 S.E. 277.
Where sections of the Code are amended and re-enacted, the actions as amended must be read in the room and stead of the original sections. Sections 664, 666 of the Code, relating to the redemption and sale of lands, previously sold for delinquent taxes and purchased by the commonwealth, as amended in February, 1898, are not in conflict with one another. They must be read in the room and stead of the original sections. Christian v. Taylor, 96 Va. 503, 31 S.E. 904.
b. In West Virginia.
Compliance with Statute Essential.--Where the state becomes the purchaser of land at a delinquent sale, the requirements of the statute with reference to the return and sale of delinquent lands must be complied with before the title to such land becomes vested in the state. McGhee v. Sampselle, 47 W.Va. 352, 34 S.E. 815.
Second Sale in Former Owner's Name Illegal.--Where land has been sold for taxes, and purchased for the state, and the clerk of the court illegally places such land on the land books for succeeding years in the former owner's name, and such land is again delinquent. and sold by direction of the auditor. for the taxes of such succeeding years, such sale is illegal and void, and the purchaser acquires no title by reason thereof, and the clerk's deed made in pursuance of such sale is wholly void and will be set aside. Totten v. Nighbert, 41 W.Va. 800, 24 S.E. 627.
Curative Statute Inapplicable.--The curative provisions of § 25, ch. 31 of the Code do not apply where the state becomes a purchaser of land at a delinquent sale, and if they did, would not cure such an omission as that of the prescribed affidavit to the sheriff's return of delinquent lands. McGhee v. Sampselle, 47 W.Va. 352, 34 S.E. 815.
Proceeding Not Judicial.--The proceedings provided by ch. 134 of the Acts of 1872-3 for the sale of lands for the benefit of the school fund are not judicial proceedings in the sense that they involve litigation between contesting parties; nor are they proceedings technically either in rem against the land, or in personam against the former owner of the land; but are in their character administrative, being simply a mode prescribed by the state for the sale of lands, which are her absolute property, and in the sale of which she alone is interested. McClure v. Maitland, 24 W.Va. 561; Auvil v. Iaeger, 24 W.Va. 583.
" The mode of proceeding for the sale is substantially thus; the commissioner of delinquent and forfeited lands simply reports to the court that he has found certain described tracts of land returned delinquent and forfeited in the names of persons mentioned. The court then makes an order of sale of the lands thus reported, the sale is made by the commissioner and reported by him to the court by which the sale is confirmed, and an order made directing the commissioner to convey the state's interest in the land to the purchaser by deed, upon the payment of the whole purchase money. This is the whole form and substance of the proceeding." McClure v. Maitland, 24 W.Va. 561, citing Hoge v. Currin, 3 Gratt. 201; Staats v. Board, 10 Gratt. 400; Wild v. Serpell, 10 Gratt. 405; Smith v. Chapman, 10 Gratt. 445; Levasser v. Washburn, 11 Gratt. 572; Atkins v. Lewis, 14 Gratt. 30; Hitchcox v. Rawson, 14 Gratt. 526; Miller v. Williams, 15 Gratt. 213; Twiggs v. Chevallie, 4 W.Va. 463; Strader v. Goff, 6 W.Va. 257.
Rights of Former Owner.--The effect of § 5, art. 13 of the Constitution of this state, giving to the former owner the surplus proceeds of the land over the taxes, etc., does not confer upon him any interest in the land or right to participate in, or be a party to, the proceedings for the sale of it. The grant to him of such surplus proceeds is wholly gratuitous, and his claim thereto is confined to the proceeds as such and he can obtain them only in the manner prescribed by law. McClure v. Maitland, 24 W.Va. 561; Auvil v. Iaeger, 24 W.Va. 583; De Forest v. Thompson, 40 F. 375.
The two years allowed to the former owner of land sold for the benefit of the school fund by the commissioners of the school lands in a suit instituted therefor, to file his petition to receive the surplus after the payment of taxes, interest, charges and costs, means two years after the sale, and not the decree directing the sale. It means after the sale is fully consummated, which is not until a decree of confirmation transferring or directing the transfer of title by proper conveyance. Thompson v. Cox, 42 W.Va. 566, 26 S.E. 189.
In proceedings by the commissioner of school lands, under ch. 134, Acts of 1872-73, for the sale of forfeited lands for the benefit of the school fund, the former owner of such lands, or other persons claiming title thereto, having no rights to be affected, and no interest in the proceedings, are not entitled to be made parties in the circuit court; and, if they be inadvertently made parties in that court, that will not give any of them the right to appeal to this court. McClure v. Manperture, 29 W.Va. 633S.E. 761.
But now see the statutory requirements as to making parties. See State v. King, 47 W.Va. 437, 35 S.E. 30; post, " Of Forfeited Lands," IX, G, 6.
Statute of Limitations--Petition.--Where a city files a petition in a proceeding for sale of land for benefit of school fund, claiming an amount to be due it for taxes on said lot, it will not be deemed thereby to have brought a suit for said amount of taxes, and the statute of limitations will not be applied to the taxes due thereon. Tebbetts v. A Forfeited Lot, 33 W.Va. 705, 11 S.E. 23.
17. Persons Disqualified to Buy.
One under Obligation to Pay Taxes.--One who is under any legal or moral obligation to pay taxes on land cannot, by neglecting to pay the same, and allowing the land to be sold in consequence of such neglect, add to or strengthen his title, either by purchasing at the sale himself, or suffering a stranger to buy and then purchasing from him. State v. Eddy, 41 W.Va. 95, 23 S.E. 529; Williamson v. Russell, 18 W.Va. 612.
The general principle applicable in all such cases is, that a purchase made by one whose duty it was to pay the taxes, shall operate as a payment only; for he shall acquire no right against a third party by a neglect of the duty which he owed to such party. This principle is universal, for when the existence of the duty is shown, the disqualification is made out. This rule applies where the default was only in part that of the purchaser, as where he was tenant in common with others; or where his own land was taxed as one parcel with that of another, and the whole was sold together; and to a case where an agent to pay taxes, purchased the land of his principal, and assumed to justify himself on the ground that his principal had neglected to furnish him money to pay the taxes. Summers v. Kanawha, 26 W.Va. 159; Curtis v. Borland, 35 W.Va. 124, 12 S.E. 1113; Franks v. Morris, 9 W.Va. 664; Cecil v. Clark, 44 W.Va. 659, 30 S.E. 216. See monographic note on " Agencies" appended to Silliman v. Fredericksburg, etc., R. Co., 27 Gratt. 119.
Operates as Payment.--A purchase of land at a delinquent sale by the agent or attorney of the owner, in whom he had confided, and whose duty it was to purchase in said land for the owner, or by a tenant who was under obligation to pay the taxes, operates only as a payment of the taxes, and such purchaser acquires no rights, as against the owner of the land, by neglecting his duty to the owner and buying the same for himself. Curtis v. Borland, 35 W.Va. 124, 12 S.E. 1113; Williamson v. Russell, 18 W.Va. 612; State v. Eddy, 41 W.Va. 95, 23 S.E. 529.
But the rule that a person whose duty it is to pay a tax on property will not be allowed to purchase the same at a sale thereof for the delinquency of such taxes, and that the purchase operates, in such case, as a redemption or a mere payment of the taxes, and confers no title, does not apply where the person who is seeking to set aside such sale is one to whom the purchaser owed no duty which had been omitted, and who stands, not in a relation of privity or confidence with, but of hostility to, the purchaser. Cain v. Brown (W. Va.), 46 S.E. 579.
Purchasers at Previous Judicial Sale.--Pending the appeal from a decree for the sale of lands under which they were sold to H., the plaintiff, the land is returned delinquent for nonpayment of taxes in the name of the original owner, and is sold and purchased by the purchasers from the heirs of H. Quare, if it was not their duty to pay the taxes, and if they can set up a title under that sale and purchase against the original owner. Miller v. Williams, 15 Gratt. 213, and foot-note.
Deed of Trust Creditor.--Where a debt is secured by a deed of trust upon the land of the debtor, not in the possession of the creditor, who is not otherwise interested in the said land, such creditor is under no obligation to pay the taxes upon said land in the absence of any covenant, promise or agreement to do so. Summers v. Kanawha, 26 W.Va. 159.
Where such trust creditor is neither in possession of the lands charged with such trust debt nor bound by any covenant, promise or agreement to pay the taxes thereon; and where no relation of trust or confidence between him and the trust debtor exists, he is not precluded from acquiring at a tax sale the title to the land conveyed by said deed of trust to secure the payment of his trust debt. Summers v. Kanawha, 26 W.Va. 159.
Where a trust creditor, whose debt is secured by a deed of trust upon a tract of land liable to be sold for the nonpayment of the taxes thereon, instead of paying such taxes, or redeeming the land from the purchaser at a tax sale thereof, himself becomes the purchaser thereof in his own name or in the name of another acting as his agent for that purpose, he will be regarded as having elected to hold the land as such purchaser, subject to all the advantages and disadvantages pertaining to his character as such; and he will not be permitted to treat his purchase at the tax sale as a payment of the taxes, or a redemption of the land without the consent of his creditor. Summers v. Kanawha, 26 W.Va. 159.
Subsequent Sale by Trustee, Void.--Where the trustee in such deed of trust pretends to sell and convey the land so conveyed to him as trustee under the provisions thereof, after the said land has been sold for the delinquent taxes thereon, and the purchaser thereof at such tax sale has obtained and duly recorded his tax deed therefor, such pretended sale and conveyance of said land by such trustee will be inoperative and void. Summers v. Kanawha, 26 W.Va. 159.
The Selling Officer--Evidence.--Any fact making void a tax sale by reason of a failure to observe § 9, ch. 31 of the Code, forbidding the selling officer to buy at his own sale, may be shown by any natural, common-sense implication fairly arising on the record according to the principles of evidence and ordinary means and methods of proof. Phillips v. Minear, 40 W.Va. 58, 20 S.E. 924.
Lapse of Time.--Land sold by the sheriff for nonpayment of taxes and bought by the deputy sheriff of the county in which it lies, though afterwards it passes into the possession of purchasers for valuable consideration, may be recovered by the original owner, or his heirs, eleven years after death of insane owner. Taylor's Devisees v. Stringer, 1 Gratt. 158.
G. RIGHT OF REDEMPTION.
1. Nature of Remedy. --The right of redemption is a statutory, not a common-law remedy, and the statute regulating it must be substantially followed. Parsons v. Newman, 99 Va. 298, 38 S.E. 186.
And laws allowing redemption are to be construed liberally. Corbett v. Nutt, 18 Gratt. 624; Danser v. Johnsons, 25 W.Va. 380; Poling v. Parsons, 38 W.Va. 80, 18 S.E. 379.
2. Who May Redeem.
Former Owner May Redeem Though He Has Executed a Deed Since.--Under the statute providing that any former owner or creditor having a lien on the land may redeem the same (§ 14, ch. 105, amended, Code, p. 655), the owner at the time of the forfeiture was the former owner contemplated by the statute at the time she filed her petition for redemption, though she may have afterwards executed a general warranty deed therefor. Waggoner v. Wolf, 28 W.Va. 820.
Constitutionality of Act.--The fourteenth section of ch. 95 Acts of 1882 authorizing the former owner of land, the title of which has been forfeited and remains in the state, to redeem such land at any time before sale by the commissioner of school lands in the manner prescribed by said act, is valid and constitutional. Waggoner v. Wolf, 28 W.Va. 820.
Married Woman or Trustee.--A married woman, whose land has been sold for taxes under the act of congress June 7, 1862, may in person redeem the same within two years, upon taking the oath prescribed by the act; or a person appointed her trustee in another state, and professing to act as such, may redeem for her. Corbett v. Nutt, 18 Gratt. 624.
Attorney.--A power of attorney by the owner of land, appointing the attorney to " protect all his interests in and title to the land," is sufficient authority for the attorney to redeem the land for the owner from the purchaser thereof at a sale for delinquent taxes. Townshend v. Shaffer, 30 W.Va. 176, 3 S.E. 586.
Person Charged with Taxes.--In a suit by the person assessed with taxes for land, against the purchaser of such land for taxes, to set aside a tax deed to such purchaser, the latter cannot, in such suit, controvert the right of the person so charged with taxes for which the land was sold to redeem the land. Townshend v. Shaffer, 30 W.Va. 176, 3 S.E. 586.
Committee of Insane Person.--Under our statute allowing the redemption of lands that have been sold for taxes, the committee of an insane person may, during the continuance of the disability, redeem the lands of such lunatic by complying with the requirements of the statute. Powell v. Smallwood, 48 W.Va. 298, 37 S.E. 551.
Any Coparcener.--Where land assessed to the heirs of a deceased person becomes delinquent for nonpayment of taxes, and, before sale for such delinquency, partition thereof is made among the heirs, and part of the land allotted to one of the heirs is purchased by a stranger at the tax sale, any of those who shared in the partition, and against whom the tax was assessed, may redeem. Cain v. Brown (W. Va.), 46 S.E. 579.
Trustee under Conveyance in First Year after Sale.--Where land is sold for the taxes and bought in by an individual, during the first year, under § 15, certain persons have the right to redeem. If that right be not exercised within the first year, nobody can redeem as against the purchaser at any time within the second year. During that time he may take his deed, concluding the rights of all others as to the land. If he fails to take the deed during that year, § 24 reopens for redemption against him in favor of the " former owner, his heirs and devisees; " and the trustee to whom the legal title was conveyed in the first year after the sale, is an " owner," within the meaning of § 15, and a " former owner," within the meaning of § 24, and therefore entitled to redeem. Clark v. McClaugherty (W. Va.), 44 S.E. 269.
Agency to Redeem Created by Contract of Sale of Timber.--Six tracts of land assessed with taxes in the name of H., who was the owner thereof, and returned delinquent for the nonpayment thereof, were purchased at a sale thereof, made by the sheriff, by E. and R. Before the lands were sold. H. had conveyed two of said tracts to a trustee, to indemnify and save harmless S., as the surety of H. in three notes of $ 1,204.27 each, all of which remained unpaid. Seven months after said sale, H. and S. entered into a contract, under seal, whereby, in consideration of $ 1,250 to be paid by S., H. sold to him all the timber of a certain character growing on the remaining four of said six tracts, with the right to enter and remove the same at any time within four years after the date of said contract; and whereby it was further agreed that S., out of the price to be paid for the timber, should apply $ 200, or so much thereof as might be necessary, in redemption of said last-named four tracts, which had been sold for taxes. Held, that S., in his capacity as agent for H., was authorized to redeem said last named four tracts of land. Elliott v. Shaffer, 30 W.Va. 347, 4 S.E. 292.
As Owner of Beneficial Interest.--It was held, further, that S., in his capacity of owner of a beneficial interest therein, acquired by his said contract with H., whereby he bought said timber, was entitled to redeem said four tracts of land. Elliott v. Shaffer, 30 W.Va. 347, 4 S.E. 292.
As Beneficiary under Trust Deed.--And, in his capacity of beneficiary in said deed of trust, he was entitled to redeem said two tracts embraced therein. Elliott v. Shaffer, 30 W.Va. 347, 4 S.E. 292.
A party having a deed of trust on the land, so far as the right to redeem is concerned, occupies the same attitude that the owner does; and if he is prejudiced, and prevented from redeeming the land, by irregularities in the proceedings, the same results should follow therefrom. Carrell v. Mitchell, 37 W.Va. 130, 16 S.E. 453.
Deed Obtained by Fraud or Surprise No Obstacle.--If the grantee of the commonwealth of a tax title under § 666 of the Code obtained the order for the deed under such circumstances as that a court of equity would relieve against it, and at that time the former owner had the right to redeem from the commonwealth, a court of equity would grant relief to such owner, and permit him to redeem, notwithstanding the execution and recordation of a deed to the purchaser. In the case in judgment, the former owner had the right of redemption in consequence of the failure of the officers of the state to comply with the provisions of § 637 of the Code, and the order for the deed was obtained under such circumstances as entitles the former owner to relief. Thomas v. Jones, 98 Va. 323, 36 S.E. 382.
Purchaser at Second Sale May Not Redeem.--The owner and none other has the right to redeem land purchased by the commonwealth for delinquent taxes. If a purchaser under a second sale to the commonwealth pays the amount necessary to redeem under the first sale, the payment redounds to the benefit of the owner, and not to such purchaser. Glenn v. Brown, 99 Va. 322, 38 S.E. 189.
3. When Redemption allowed.
In Virginia.--A purchaser at a sale of land for delinquent taxes cannot acquire a deed thereto within two years after the date of his purchase, and if more than three years elapse after the date of sale, before a deed is obtained by the purchaser, the former owner, or a creditor holding a lien on the land, may redeem at any time before a deed is made or ordered to the purchaser. Such purchaser is liable for waste committed before acquiring a valid deed, and for rents collected. Van Landingham v. Buena Vista, etc., Co., 99 Va. 37, 37 S.E. 274; Forqueran v. Donnally, 7 W.Va. 114.
Thus a purchaser of a part of a tract of land at a sheriff's delinquent tax sale, made in the year 1860, by the purchase, payment of the purchase money and delivery to him of the sheriff's receipt therefor, acquired the right, if the land was not redeemed in the manner prescribed by § 13, ch. 37 of the Code of Virginia, within two years from the sale, to obtain a deed in the mode and manner prescribed by § § 15, 17 of said chapter, without the privilege to the former owner to redeem until after the expiration of the one year from the expiration of the two years, without the deed having been made to the purchaser. Forqueran v. Donnally, 7 W.Va. 114.
And the right, so acquired, grew directly out of the contract of sale made in pursuance of the law under which it was made. The contract was a civil one, and the right an equitable right, or interest, entitled, on failure to redeem, to ripen into a full legal title. Forqueran v. Donnally, 7 W.Va. 114.
It is entirely competent for the legislature, by subsequent law, to fix a time within which purchasers at tax sales made prior thereto shall obtain their deeds. Forqueran v. Donnally, 7 W.Va. 114.
Persons under Disability.--Section 30, ch. 31 of the Code, by extending the time within which such redemption may be effected after such disability is removed, merely confers a personal privilege upon the person laboring under such disability, and in no manner interferes with the right to redeem during the disability. Powell v. Smallwood, 48 W.Va. 298, 37 S.E. 551; White v. Straus, 47 W.Va. 794, 35 S.E. 843. See monographic note on " Infants" appended to Caperton v. Gregory, 11 Gratt. 505.
The statute allowing infants one year after becoming of age, in which to redeem lands sold for nonpayment of taxes is construed liberally in their favor. Cain v. Brown (W. Va.), 46 S.E. 579.
A married woman having a separate estate in land sold for delinquent taxes, with reference to the redemption of the same, is not under such disability as would extend the time in which she must redeem under § 30, ch. 117 of Acts 1872-3, p. 324. Williamson v. Russell, 18 W.Va. 612.
And over twenty years having elapsed since the first forfeiture, even a person laboring under disability could not redeem the land when such disability is removed, and by virtue of § 40, ch. 130, Acts of 1882, such forfeited title is transferred to and vested in those having possession under the tax deed, even though it be invalid and only furnish color of title. Bryant v. Groves, 42 W.Va. 10, 24 S.E. 605.
Where Purchaser Prevents Redemption by Fraud.--If the purchaser of lands at a sale made by the sheriff for delinquent taxes fraudulently represents to the owner of the land, that the land so bought was a different tract of land and one in which the owner has no interest, with a view of preventing such owner from redeeming the land within a year of such sale, and it is for that reason not redeemed by the owner, such fraudulent purchaser may be perpetually enjoined from obtaining a deed for such land. Koon v. Snodgrass, 18 W.Va. 320.
4. How Redemption Made.
Production of Money.--Actual production of the money in offering to redeem is not necessary, when the purchaser declines to allow redemption, on the ground that the party is not entitled to redeem. Cain v. Brown (W. Va.), 46 S.E. 579. See monographic note on " Tender" appended to Shobe v. Carr, 3 Munf. 10.
But an offer by the owner of the land, made after the purchaser had received a defective deed but within five years of the sale, to pay the purchaser $ 100.00, a sum greatly exceeding the amount necessary to redeem the land, if he would release his title or claim to the land, which offer was declined by the purchaser, is no tender of the money necessary to redeem the land and would therefore be no prejudice to any right the purchaser might have to obtain another and valid deed from the recorder. It does not affirmatively appear that he had the money with him, or on what grounds it was declined. Barton v. Gilchrist, 19 W.Va. 223.
A person seeking to redeem land sold for taxes should make a legal tender of the proper amount of actual, lawful money; but that will be excused if the purchaser place his refusal, not upon the nontender of actual money, or because the amount is not the proper amount, but on the distinct ground that the party offering to redeem has no authority or right to do so. Poling v. Parsons, 38 W.Va. 80, 18 S.E. 379.
By Tender of Purchase Price, Taxes and Interest.--Where the owner of land, a married woman, did, before the expiration of the two years from the date of the tax sale, tender to the purchaser the amount for which the land was sold, with the additional taxes he had paid thereon and interest on the same at ten per centum per annum from the time when paid, it was his duty to have received the money when tendered, and to have released to her the benefit of his purchase, but having failed to do so, she has the right to go into a court of equity to compel him, his heirs or assigns, to do so. Sperry v. Gibson. 3 W.Va. 522; State v. King, 47 W.Va. 437, 35 S.E. 30.
" Lawful Currency" or " Legal Tender." --A purchaser of lands at a sale thereof, made by the sheriff for delinquent taxes, filed in the circuit court of the proper county the notice prescribed by § 16, c. 31 of the Code, against a party who, within one year from the date of such sale, redeemed said lands by paying to the clerk of the county court a sum of money sufficient for that purpose, disputing his right to redeem, and requiring him to appear on a given day before the circuit court of the county, and prove his right to redeem. Held, that it was immaterial whether the clerk received the sum of money specified in his official receipt in lawful currency or in " legal tender money." Elliott v. Shaffer, 30 W.Va. 347, 4 S.E. 292.
By Payment to Clerk.--The owner of land sold for delinquent taxes (in this case a nonresident) has the right to redeem the same within three years, and before deed made to the purchaser, by paying to the clerk of the county court the amount for which the same was sold, and such additional taxes thereon as may have been paid by the purchaser, with ten per cent. interest thereon from time of payment. The purchaser being out of the county at the time, the money was properly paid to the county clerk. Hale v. Penn, 25 Gratt. 261.
But where the purchaser refused to accept the payment as above, but went on and surveyed and obtained a deed from the clerk for another tract than the one sold. but belonging to the same owner, such deed was null and void, there having been no sale of that land. A reconveyance of such tract to the owner should have been directed, and while the owner is not liable for the expense of the survey and deed, he should pay the taxes, due and paid by the purchaser, with six per cent. interest. Hale v. Penn, 25 Gratt. 261.
Right to Redeem Contested on Notice--Issue.--Whether the act of the party paying to the clerk of the county court the sum of money specified in his official receipt has operated as a redemption of the land or not is a question of law, to be decided by the court when the same shall properly arise, and the only question properly arising on the trial of such a notice is whether the party so redeeming the land had the right to do so. Elliott v. Shaffer, 30 W.Va. 347, 4 S.E. 292.
Attorney's Personal Check--Payment to Clerk (the Attorney) Unnecessary.--The owner of a tract of land sold for taxes, appointed the clerk of the county court in which the land is situate, his attorney to redeem the same from the purchaser at the tax sale. The clerk, as such attorney, drew his personal check, payable to the order of the purchaser, for the amount of the purchase money for which the land was sold, with the interest accrued thereon, and sent it by mail to the purchaser, who received it within one year from the date of the sale, and returned it with the following note: " Dear Sir: I cannot accept this and release the land; will see you soon." Subsequently the purchaser obtained from said clerk a tax deed for the land. In a suit brought by the owner to have said deed canceled, in which there was no evidence to show that he had paid anything more on the land than what was covered by the amount specified in the check, it was held, that the receipt of said check was, under the circumstances, equivalent to a tender of the amount therein specified, and operated as a redemption of land; and that it was not essential to the perfection of the owner's right to redeem that he should pay the amount so tendered to the clerk, and obtain his official receipt therefor. Townshend v. Shaffer, 30 W.Va. 176, 3 S.E. 586; Koon v. Snodgrass, 18 W.Va. 320.
Failure to File Receipt Immaterial.--The provision of law that the recorder shall give to the owner, who pays money for redemption, a duplicate receipt, is merely directory, and a failure to file the duplicate does not invalidate the redemption. Wyatt v. Simpson, 8 W.Va. 394.
Trivial Deficiency Disregarded.--Where the owner of land sold for nonpayment of taxes, pays to the recorder $ 5.99, when it is said he ought to have paid $ 6.04 as the true amount necessary to redeem, it was held, that this small difference was such as might result from different modes of calculation, and is too trivial in amount to invalidate a transaction of this character. Wyatt v. Simpson, 8 W.Va. 394.
Purchaser's Husband Agent to Receive.--The husband of a tax purchaser being, admittedly, not only the general agent of his wife but having made the tax purchase for her, the creditor seeking to redeem had the legal right to regard and treat him as her agent to receive and receipt for the money in redemption of said land; and if he had no authority in fact to act in that particular matter, it was his duty to so inform the person offering to redeem, and his failure to do so will make his act binding upon his principal. Danser v. Johnsons, 25 W.Va. 380.
And the offer to pay the redemption money to the husband was, under the circumstances, a sufficient offer, and his refusal to receive it entitled the creditor to pay the same to the clerk. Danser v. Johnsons, 25 W.Va. 380.
Liability of Clerk.--Where the clerk has received from the party offering to redeem land the money so offered, and given his official receipt therefor, he becomes responsible upon his official bond for the money specified in his receipt, and must account for it as money to the party ultimately entitled to receive it. Elliott v. Shaffer, 30 W.Va. 347, 4 S.E. 292.
The land having been legally redeemed by the deposit of the redemption money with the clerk of the county court, the tax purchaser is entitled to that sum and nothing more. Danser v. Johnsons, 25 W.Va. 380, citing Simpson v. Edmiston, 23 W.Va. 675.
Decree Releasing Forfeiture Final.--A decree releasing a certain tract of land from forfeiture in favor of the former owner, who had paid into court all costs, taxes and interest due at the time, is held to be a final decree, under act Nov. 18, 1873. See Acts 1872-73, p. 449; Hall v. Swann, 39 W.Va. 353, 19 S.E. 509.
5. Redemption of Part Only. --In order to redeem the undivided portion of a large tract of land from forfeiture to the state for nonentry and nonpayment of taxes, such portion should be carefully described and accurately located by the person seeking redemption, that the court may properly ascertain and fix in its decree the costs, state, county and district taxes, and interest thereon, chargeable against the same, the prepayment of which is necessary to consummate such redemption. State v. King, 47 W.Va. 437, 35 S.E. 30.
The state officers are not authorized to permit redemption in any other way, and their doing so is in excess and abuse of their powers, and the decree of the circuit court authorizing such redemption is not only erroneous, but is a nullity. For instance, in this case a tract of land containing 327,000 acres, subject to certain unknown exceptions, is permitted to be redeemed on the mere theory or estimate that after such exceptions are deducted only 10,000 acres will remain scattered somewhere within the boundary of four separate counties and on this basis a pretended estimate of the unpaid taxes is made. State v. King, 47 W.Va. 437, 35 S.E. 30.
In a proceeding of this character to sell 327,000 acres, part of a 500,000 acre tract lying partly in the state of Virginia, it is error to allow the former owner, upon the payment of the taxes and interest found to be due on 10,000 acres by a commissioner, to redeem the entire 327,000 acres, providing that such redemption shall not affect the rights that any person not a party to the suit might have under the provisions of § 3, art. 13 of the Constitution of the state. State v. King, 47 W.Va. 437, 35 S.E. 30.
6. Of Forfeited Lands. --In order that the former owner of land which has been forfeited for nonpayment of taxes, or for failure to have the same entered on the commissioner's books for the purposes of taxation, may be entitled to redeem the same, he must, within the time prescribed by statute, file his petition in the circuit court, stating his title to such lands, accompanied with evidence thereof, and show by full and satisfactory proof that at the time the title to said land vested in the state he had good and valid title thereto, legal or equitable, superior to any other claimant thereof. Yokum v. Fickey, 37 W.Va. 762, 17 S.E. 318.
Lands Sought to Be Sold for School Fund.--Where a suit is brought in the name of the state for the purpose of subjecting a tract of land to sale for the benefit of the school fund, the former owner of any such tract at the time of the forfeiture shall, if known, be made a defendant; and at any time during the pendency of the suit, and before a decree for the confirmation thereof has been entered by the court, and upon full and satisfactory proof that at the time the title to said land vested in the state he had a good and valid title thereto, the court may, by a proper decree, permit such former owner, upon the payment into court or to the commissioner of school lands of the costs, taxes and interest properly chargeable thereon, to be fixed by the court in its decree, to redeem the real estate mentioned in his petition; but the taxes and interest properly chargeable thereon must be ascertained by proof, and not by mere conjecture. State v. King, 47 W.Va. 437. 35 S.E. 30; Tebbetts v. A Forfeited Lot, 33 W.Va. 705, 11 S.E. 23. Or he may file his petition praying to be allowed to redeem the same on the same terms. Tebbetts v. A Forfeited Lot, 33 W.Va. 705, 11 S.E. 23.
In Wrong County--Redemption Unassailable Collaterally.--Where a proceeding is instituted by a commissioner of school lands in a circuit court of a county to sell land forfeited for nonentry in that county, and there is a redemption under it, and the land declared exonerated from forfeiture, and it turns out that no part of the land is in that county, yet the state cannot, in a collateral proceeding, deny the validity of the proceeding or the redemption for want of jurisdiction in the court, nor can strangers nor privies in estate with those who asked and were allowed redemption. Cecil v. Clark, 44 W.Va. 659, 30 S.E. 216, See ante, " In West Virginia," IX, F, 16, b.
7. Unaffected by Second Tax Deed. --The right to redeem land purchased by the commonwealth for delinquent taxes is unaffected by a second sale of the land for taxes, or by a deed acquired under such second sale, as such second sale and all proceedings thereunder are without authority of law. Parsons v. Newman, 99 Va. 298, 38 S.E. 186.
No title is acquired by one who purchases, at a tax sale, land which, at a former delinquency, has been previously sold and purchased for the state: and, in a suit brought by the commissioner of school lands to have the land sold, such subsequent purchaser, upon his petition setting up his purchase under the sale for the subsequent delinquency and a deed made to him thereunder is not entitled to redeem the land. State v. Belcher (W. Va.), 44 S.E. 216, following Totten v. Nighbert, 41 W.Va. 800, 24 S.E. 627. See post, " The Tax Deed and Its Validity," IX, H.
8. Owner's Rights before Redemption. --A person whose land has been sold for delinquent taxes and purchased by the state has no interest in the land except the right to redeem it, and cannot, before redemption, maintain a suit to remove a cloud upon the title. A tender of the purchase price, however, to a purchaser from the commonwealth is not an offer to redeem, nor will a wrongful payment by such purchaser deprive the owner of the right to redeem. Mathews v. Glenn, 100 Va. 352, 41 S.E. 735.
9. Evidence--Auditor's Receipt. --The certificate of the auditor of public accounts showing the payment of money for the redemption of lands returned delinquent for the nonpayment of taxes for the years 1796, 1797 and 1798 is admissible in evidence as tending to show the redemption of the land from forfeiture; and the fact of the payment and the receipt of the money by the commonwealth, in the absence of evidence to the contrary, is sufficient evidence for the fact that the payment was made by or for some one entitled to redeem the land. Harman v. Stearns, 95 Va. 58, 27 S.E. 601.
And the list of redemptions made up by the recorder from these receipts is prima facie evidence of the redemption of lands included therein. (Johnson, P., dissenting.) Battin v. Woods, 27 W.Va. 58.
H. THE TAX DEED AND ITS VALIDITY.
1. Force and Effect. --(See ante, " Curative Statutes," IX, F, 15; " Force of Sale," IX, F, 8. Also, " Unaffected by Second Tax Deed," IX, G, 7; " Owner's Rights before Redemption," IX, G, 8.)
A valid tax deed is at least a mediate grant from the state of the title to lands conveyed, and a person holding thereby is properly described as holding under a state grant, within the meaning of the constitution; for the tax deed partakes of the nature of the original grant of the title forfeited. State v. Collins, 48 W.Va. 64, 35 S.E. 840.
Was Not Prima Facie Evidence even.--The marshal's deed to purchaser is not even prima facie evidence of regularity of the collector's proceedings; nor shall the regularity thereof be presumed from twenty-two years quiet possession under the sale, or from any time short of that or from which any other link in the chain of title to real estate may be presumed. Allen v. Smith. 1 Leigh 231.
A law making a tax deed prima facie evidence of any or all material facts recited in the deed is constitutional; but in construing such a law the courts will confine its operation strictly within the bounds prescribed by the statute. Dequasie v. Harris, 16 W.Va. 345.
Title Passing--Other Liens.--The provision in § 661 of the Code, that " the right or title to such estate shall stand vested in the grantee in such deed as it was vested in the party assessed with the taxes or levies on account whereof the sale was made," refers to the character of the title that shall be vested in the grantee in such deed, whether it be a fee simple or otherwise. It has no reference to liens, and does not mean, as contended, that the purchaser takes the land subject to the liens resting thereon at the time the taxes were assessed. Stevenson v. Henkle, 100 Va. 591, 42 S.E. 672; Thomas v. Jones, 94 Va. 756, 27 S.E. 813.
Under Code, § 661, as amended, the title of a purchaser at a tax sale, who has obtained a deed from the commonwealth, can only be defeated by showing that the taxes for which the land was sold was not properly chargeable thereon, or that those properly chargeable have been paid, or that the notice required by that section has not been given, or that the purchaser has prevented payment or redemption by fraud or concealment. Stevenson v. Henkle, 100 Va. 591, 42 S.E. 672; Thomas v. Jones, 94 Va. 756, 27 S.E. 813; Va. Coal Co. v. Thomas, 97 Va. 527, 34 S.E. 486.
And the title acquired, in the manner required by law, by a purchaser of real estate which has been previously purchased in the name of the auditor for delinquent taxes, can be defeated only by proof that the taxes, or levies for which said real estate was sold were not properly chargeable thereon, or that such taxes and levies have been paid. Whether the notice required by Acts 1895-96, ch. 179, p. 219, to be served on the former owner or his personal representative, has been properly served or not is immaterial. Thomas v. Jones, 94 Va. 756, 27 S.E. 813; Va. Coal Co. v. Thomas, 97 Va. 527, 34 S.E. 486.
Under the statute, Code of 1873, c. 38, § 26, a purchaser at a sale of land delinquent for taxes, only acquires such estate as was vested in the person assessed with the taxes at the commencement of the year for which the said taxes were assessed; where the owner had in 1864 sold and conveyed the land, he had no estate in the land in January 1865 and no title to the land, under the purchase and the deed made under a tax sale for the delinquent tax of 1865, passed to the purchaser. Gates v. Lawson, 32 Gratt. 12; Smith v. Lewis, 2 W.Va. 39.
Title Passing to One of Several Former Owners.--Where a tract of land owned by the heirs of a decedent was sold by the sheriff for the nonpayment of taxes assessed thereon against them as such heirs and at such sale the same was purchased in his own name by one of said heirs, to whom the same was afterwards regularly conveyed by the recorder of the proper county, such purchase and conveyance vested in such purchaser the legal title to said land, as the same was vested in said heirs at the commencement of the year in which the taxes were assessed, for the nonpayment whereof the same was sold, but it does not necessarily follow that it is discharged of any trust attaching thereto in favor of his coheirs. Kanawha Valley Bank v. Wilson, 29 W.Va. 645S.E. 768.
They should be made parties defendant to this suit; and if it shall appear that other of said heirs have interest in said land, an account of the rents and profits thereof, as well as the taxes thereon paid by the purchaser, or any other of said heirs, and all money expended by him in acquiring such title, should be taken, in accordance with the principle applicable in such accounts between cotenants. Kanawha Valley Bank v. Wilson, 29 W.Va. 645S.E. 768. See ante, " Persons Disqualified to Buy," IX, F, 17.
As Color of Title. --A tax deed valid on its face will give color of title, though it may be defective in form or substance, or be founded on irregular proceedings. Lennig v. White. 1 Va. Dec. 873; Flanagan v. Grimmet, 10 Gratt. 421; Mullan v. Carper, 37 W.Va. 215, 16 S.E. 527; Bryant v. Groves, 42 W.Va. 10, 24 S.E. 605; Simpson v. Edmiston, 23 W.Va. 675; Cooey v. Porter, 22 W.Va. 120; Adams v. Alkire, 20 W.Va. 480; Shanks v. Lancaster, 5 Gratt. 110; Core v. Faupel, 24 W.Va. 238; Parkersburg Nat. Bank v. Neal, 28 W.Va. 744; Swann v. Thayer, 36 W.Va. 46, 14 S.E. 423.
Parol Evidence Inadmissible for or against.--Parol evidence is not admissible to uphold or invalidate a tax deed, and it must be determined from the proceedings of record on which the deed is founded and from the face of the deed itself whether the deed is valid. McClain v. Batton, 50 W.Va. 121, 40 S.E. 509.
A deed from the clerk of the county court conveying to a purchaser land sold for taxes conveys only such title as was vested in the party assessed with the taxes whereof the sale was made. Hotchkiss v. Middlekauf, 96 Va. 649, 32 S.E. 36. See monographic note on " Deeds" appended to Fiott v. Com., 12 Gratt. 564; foot-notes to Walton v. Hale, 9 Gratt. 194; Hobbs v. Shumates, 11 Gratt. 516. Also ante, " Force of Sale," IX, F, 8.
2. Court's Jurisdiction to Order Deed to Issue. --The court has jurisdiction to order the deed to be made to the party shown to be entitled to it, and whether that jurisdiction have been exercised with due regularity and formality, is a matter which a stranger certainly in a collateral proceeding cannot be permitted to enter into. Hitchcox v. Rawson, 14 Gratt. 526.
The commissioner's duty is to obey the mandate of the court, and without its order he can only convey to the purchaser. But the court in the exercise of its ordinary powers direct the deed to be made to a third person. Hitchcox v. Rawson, 14 Gratt. 526.
Court's Duty Formerly Ministerial.--Under the provisions of § 15, ch. 37 of the Code of Virginia taken in connection with the act of 1863, the purchaser had nothing to do but have the quantity purchased laid off at his expense, by the surveyor of the county, and have a plat and certificate of the survey returned to the circuit court of the county or judge thereof in vacation and ask the court or judge to order it to be recorded, and if the plat and certificate were correct and in accordance with the law, the court or judge was bound to make the order, and then it became the duty of the recorder of the county to make to the purchaser a proper deed, on request. The duty to be performed by the circuit court or judge, in such case, is simply ministerial, and not judicial. The court or judge has no authority to inquire into the regularity or validity of the sale made by the sheriff. Randolph Justices v. Stalnaker, 13 Gratt. 523; Delaney v. Goddin, 12 Gratt. 266 and foot-notes to these cases; Forqueran v. Donnally, 7 W.Va. 114.
3. Legislative Power to Authorize Another Deed--While the deed aforesaid was, and is, not valid to pass title, still the equitable title or interest in the land, subject to the right of redemption, did not become extinguished by the deed being invalid, but was in existence at the adoption of the Code of 1868; and when it took effect it was competent for the legislature to pass laws by which the purchaser could obtain a sufficient deed for the land purchased by him at the said tax sale. And § 24, ch. 31 of the Code of 1868 does provide such remedy; but the deed under that section must have been made within two years from the passage of said Code, where the sale occurred more than five years before the passage of the Code; and the owners, their heirs and assigns, had the right to redeem at any time before such deed was made. If the purchaser, or his heirs or assigns, cannot show that they, or he, properly procured a proper and sufficient deed for the land purchased at said tax sale, within two years from December 29th, 1868, the date of the passage of said Code, then it must be considered and held, that the equitable right or interest of the purchaser, acquired by said purchase, has been extinguished. Forqueran v. Donnally, 7 W.Va. 114.
4. The Execution.
Deputy May Execute.--It is very certain that the execution of a tax deed is a ministerial, and not a judicial, duty, and therefore a duty which may under the statute be done by a deputy recorder. Davis v. Living, 32 W.Va. 174, 9 S.E. 84.
When Commissioner Appointed to Execute.--To entitle a purchaser at a tax sale to have a circuit court, or the judge thereof in vacation, to appoint a commissioner to execute a deed for a lot of land purchased by him, he must bring himself within the provisions of the law governing the terms of his application; and therefore the petition should show a clear legal right to have the deed made, and in the manner prayed for. Davis v. Jackson, 14 W.Va. 227.
Where the petition fails to show that the tax deed was made under ch. 31, Code, and that petitioner had complied with § § 18, 19, and that the land had not been redeemed as provided in § § 15, 16, 24 of said ch. 31, or same sections of ch. 117, Acts 1872-3, the circuit court, or the judge thereof in vacation, should refuse to appoint a commissioner to make a deed under § 22, and under such circumstances a peremptory mandamus does not lie to compel the said court, or judge in vacation, to appoint such a commissioner. Davis v. Jackson, 14 W.Va. 227.
Necessity of Commissioners' Uniting.--There was no absolute necessity for both commissioners to unite in the conveyance, and the court might require the duty of executing it to be performed by both or by one of them. Hitchcox v. Rawson, 14 Gratt. 526; Miller v. Williams, 15 Gratt. 213.
Clerk Cannot Take His Own Acknowledgment to Deed.--Title to land purchased for delinquent taxes could be acquired, under the Code of 1849, only by a deed from the clerk of the proper court, duly recorded; but the clerk could not acknowledge such a deed before himself, and a deed recorded on such an acknowledgment passed no title. Acknowledgment implies the existence of two persons, one who makes the acknowledgment, and another who receives and certifies it. Leftwich v. Richmond, 100 Va. 164, 40 S.E. 651.
Commissioner's Deed Must Show Valid Authority. --A commissioner for the sale of delinquent lands conveys under a power; and a deed executed by him to other persons than those reported by him to have been the purchasers of the land, can avail nothing where his authority to make it does not appear, unless there has been such a long acquiescence and possession under the deed as to justify a presumption in its favor, as was the case in Robinett v. Preston, 4 Gratt. 141; Walton v. Hale, 9 Gratt. 194.
This deed alone would not preclude the persons who purchased at the sale from calling for a proper deed. The apparently unauthorized act of the commissioner could not destroy their rights. Were they before the court, or had caveator established a right to claim under the sale by the commissioner, the regularity of that sale and the interest which passed by it would be proper subjects of enquiry. Walton v. Hale, 9 Gratt. 194.
Variance of Deed from the List of Sales.--A material variance between the tax deed and the sworn list returned by the sheriff of the sale made by him, vitiates the deed. For example: that said tax deed recites and declares that the said tract of land was sold " for the nonpayment of taxes for the year 1850," while the said list and the oath of said sheriff thereto appended states, that it was sold " for the nonpayment of taxes thereon since the year 1850; " and because this said list is materially defective in failing to show the year for which the taxes were due, for the nonpayment of which the sheriff sold the land. Burlew v. Quarrier, 16 W.Va. 108.
And the only authority for the tax deed being the sale of the land for the delinquency thereof, and the conformity of the deed to the statute, the deed must conform to the report of sale, and that showing a sale of an entire tract, it is no authority for executing a deed for part of such tract, and if such a deed is executed, it is void. Jones v. Dils, 18 W.Va. 759.
5. Equitable Jurisdiction to Set Aside Illegal Tax Deed. --" This court has repeatedly held and recognized that a court of equity has jurisdiction to set aside an illegal tax deed. Forqueran v. Donnally, 7 W.Va. 114; Jones v. Dils, 18 W.Va. 759; Orr v. Wiley, 19 W.Va. 150." Simpson v. Edmiston, 23 W.Va. 675; Wyatt v, Simpson, 8 W.Va. 394. See Smith v. O'Keefe, 43 W.Va. 172, 27 S.E. 353; Moore v. McNutt, 41 W.Va. 695, 24 S.E. 682; Carroll v. Brown, 28 Gratt. 791.
Under the provisions of ch. 31 of the Code relating to the sale of real estate for taxes, there are only two classes of cases in which tax deeds free from fraud, duly executed and recorded, can be set aside: (1) Where irregularities appear on the face of the record in the office of the clerk of the county court, such as materially prejudice and mislead the owner of the real estate sold as to what portion of his real estate was sold, and when, and for what years, or the name of the purchaser thereof. Code, c. 31, § 25. (2) When the taxes are not in arrear, but have been once paid. Id. § § 26, 27. Gerke Brewing Co. v. St. Clair, 46 W.Va. 93, 33 S.E. 122, interpreted in Boggess v. Scott, 48 W.Va. 316, 37 S.E. 661, as " logically overruling" the case of Phillips v. Minear, 40 W.Va. 58, 20 S.E. 924. See Winning v. Eakin, 44 W.Va. 19, 28 S.E. 757; Nuzum v. McEldowney, 46 W.Va. 207, 32 S.E. 1024.
Pleading.--When a tax deed is assailed as invalid, and such deed is exhibited with the bill and appears invalid on its face, the court will not decline to declare it void and set it aside, simply because the plaintiff did not in his bill specify the particular grounds on which the court regards it void. Simpson v. Edmiston, 23 W.Va. 675.
But a bill in chancery, filed for the purpose of setting aside a tax deed for mere irregularities, which fails to allege sufficient statutory grounds therefor, is demurrable. Gerke Brewing Co. v. St. Clair, 46 W.Va. 93, 33 S.E. 122.
Cancelled as to Land Included by Mistake.--Where a portion of a tract of land is included by mistake in a survey made under the direction of the commissioner of school lands, and is sold under the statute for the benefit of the school fund, and a deed made to the purchaser thereof, equity will take jurisdiction of a suit brought by the owner of such tract of land, who is in possession of the same, for the purpose of cancelling said deed and removing the same as a cloud upon his title. Smith v. O'Keefe, 43 W.Va. 172, 27 S.E. 353.
Conclusiveness of Decision.--Although the parties to a suit involving the validity of a tax deed are bound by the decision in said suit affirming the validity of said deed, yet where a party to such suit, by the trust deed duly executed, acknowledged and recorded prior to being made a party to such suit, conveyed an undivided moiety of the land covered by such tax deed, to secure the payment of a debt, the trustee in such deed of trust and his cestuis que trust are not bound by such decision. Burlew v. Quarrier, 16 W.Va. 108.
Necessity for Owner to Be in Possession.--A court of equity has jurisdiction of a suit brought by the owner in possession, to set aside a deed which has been put upon record, whereby the complainant's land has been wrongfully conveyed to a purchaser at a tax sale. Carroll v. Brown, 28 Gratt. 791; Hutchings v. Gilmer, 1 Va. Dec. 495.
The court in its reasoning laid stress on the fact that the owner was devoid of remedy save in equity, being in possession so that he could not bring ejectment to try the title, and cited Hale v. Penn, 25 Gratt. 261, saying that in that case the complainants must have been in possession, for " if the tax purchaser had been in possession, the complainants would have had a plain remedy at law in an action of ejectment against him, the deed under which he claimed not being prima facie evidence of title, and furnishing no impediment to the recovery in such action." Carroll v. Brown, 28 Gratt. 791.
In such case the original owner of the land, although out of possession, had the right to come into a court of equity for the purpose of setting aside a deed which might have obstructed his recovery in an ejectment. Yancey v. Hopkins, 1 Munf. 419, and foot-note. And besides, the object of the bill was to compel the reconveyance of the land from the defendant, which a court of law could not enforce, and as a single verdict in ejectment might not have been conclusive, the parties pursued the most proper course. Yancey v. Hopkins, 1 Munf. 419. See Hutchings v. Gilmer, 1 Va. Dec. 495. The principal case is cited with approval in Carroll v. Brown, 28 Gratt. 791.
W. Va. Rule.--" That the general rule of jurisdiction of suits to remove cloud over title is that to entertain a suit to cancel the tax deed and remove the cloud produced by it, the plaintiff must, to sustain such jurisdiction, be in actual possession and so state in his bill; is admitted, but under the decisions in this state a suit to set aside a tax deed is an exception to that rule. Simpson v. Edmiston, 23 W.Va. 675; Forqueran v. Donnally, 7 W.Va. 114; Jones v. Dils, 18 W.Va. 759; Orr v. Wiley, 19 W.Va. 150. Opinions of Dent, J., in Christian v. Vance, 41 W.Va. 754, 24 S.E. 596, and of Brannon, J., in Cecil v. Clark, 44 W.Va. 659, 30 S.E. 216; Clayton v. Barr, 34 W.Va. 290, 12 S.E. 704. So we must consider this question of jurisdiction as closed in this court." Boggess v. Scott, 48 W.Va. 316, 37 S.E. 661.
Stranger May Not Assail.--Where the plaintiff in an action of ejectment relies upon a purchase of the land in controversy at a delinquent tax sale, and a deed executed to him in pursuance thereof, the defendant is not entitled to attack the deed so acquired for irregularities in the proceedings connected with said tax sale, unless he or those under whom he claims were owners of the title of said land which was sold at the time of said delinquent sale, or were entitled to redeem the same. Hawkinberry v. Snodgrass, 39 W.Va. 332, 19 S.E. 417. See ante, " Force of Sale," IX, F, 8.
Extent of Equity Powers.--" There is jurisdiction in equity to annul a tax deed, but quare if it is right for a court of equity not only to do that, but divest a third party of his legal title to land, and thus deprive him of a jury trial? Is not the jurisdiction in equity limited to the nullifications of only the tax deed?" Dissenting opinion in Davis v. Settle, 43 W.Va. 17, 26 S.E. 557; Clayton v. Barr, 34 W.Va. 290, 12 S.E. 704. However it was done in the case of Simpson v. Edmiston, 23 W.Va. 675; Winning v. Eakin, 44 W.Va. 19, 28 S.E. 757.
Several Purchasers Uniting in One Bill.--Several purchasers of different parcels of the same tract of land which has been returned delinquent in the name of the former owner of the whole tract, and sold for taxes, may unite in one bill to remove the cloud upon the title created by a tax deed made in pursuance of such sale. Glenn v. Brown, 99 Va. 322, 38 S.E. 189.
Tender Required.--A defective tax deed should not be set aside unless the person entitled to have the same set aside shall pay or tender to the purchaser, or his heirs, devisee or assignee, or the person holding under him, or some one or more of them, the purchase money paid for the real estate at the tax sale, and all the taxes since paid thereon for any year or years for which such person so claiming, or those under whom he claims, have not paid taxes thereon, and the costs of the survey or report, with interest on each of said sums from the date of the payment thereof until paid by such claimant. McClain v. Batton, 50 W.Va. 121, 40 S.E. 509.
" 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." Winning v. Eakin, 44 W.Va. 19, 28 S.E. 757; Nuzum v. McEldowney, 46 W.Va. 207, 32 S.E. 1024.
Nothing Paid--No Tender Necessary.--When the holder of an invalid tax deed and those under whom he claims have paid no purchase money, taxes or costs under or in procuring the same, the person entitled to have the deed set aside need not tender or pay him anything, or offer to do so, in attacking such deed. Collins v. Sherwood, 50 W.Va. 133, 40 S.E. 603.
Effect of Laches. --Laches will not bar a landowner from assailing a tax sale of his land, when there is no actual possession under the tax title. State v. Sponaugle, 45 W.Va. 415, 32 S.E. 283.
Enjoining Deed in Advance.--A party has a right to quiet his title to a tract of land by enjoining a purchaser at a tax sale from obtaining a deed for his parcel of land, if the defendant did not at such sale in fact purchase his parcel of land. Koon v. Snodgrass, 18 W.Va. 320 at 321.
If such party has tendered to such purchaser within one year after the sale the amount he paid for the land, as shown by the sheriff's receipt, and such additional taxes, if any, as may have been paid by the purchaser, and interest on such purchase money and taxes at the rate of twelve per cent. per annum from the time the same moneys have been paid, he may enjoin such purchaser from obtaining a deed for the land, though the money so tendered was refused, and it was not paid to the recorder, or any one else within a year from the sale. Koon v. Snodgrass, 18 W.Va. 320.
X. TAXES EXEMPT FROM EXECUTION AGAINST MUNICIPALITIES.
By implication the taxes and public revenues of a municipal corporation are exempt from the operation of the provisions of § 5, ch. 140 of said Code, and § § 2, 10, ch. 141 of said Code; and such taxes and revenues cannot be seized or subjected to a writ of fieri facias, in the hands of the taxpayers or in the treasury of such municipal corporation or in transit to such treasury, by virtue of said writ or by reason of any lien of such fieri facias under the said sections, ch. 140, or said § § 2, 10 of said ch. 141. Especially should such exemptions be held to exist in the absence of an express declaration of law to the contrary. Brown v. Gates, 15 W.Va. 131.
[*]
For monographic note on Taxation, see end of case.
[*]The President, absent.