Webb v. Ritter
| Decision Date | 01 May 1906 |
| Citation | 54 S.E. 484,60 W.Va. 193 |
| Parties | WEBB et al. v. RITTER. |
| Court | West Virginia Supreme Court |
Submitted February 20, 1906.
Rehearing Denied June 2, 1906.
Syllabus by the Court.
To vest title to land in the state, as a purchaser thereof at a sale by a sheriff for delinquency for nonpayment of taxes, the same degree of strictness in compliance with the law relating to assessment, return of delinquency, and sale, is required as in the case of a valid sale to an individual.
No title vests in the state by a fatally defective sale of land made to her by a sheriff at a tax sale.
An invalid sale of land to the state for nonpayment of taxes does not relieve the owner thereof from the duty of causing the same to be kept on the land books and charged with taxes in order to prevent forfeiture of the title under section 6 of article 13 of the Constitution.
An assessor, in restoring omitted lands to the land books, under the authority vested in him by section 10 of chapter 29 of the Code of 1899, performs a purely ministerial function. Officers charged with such duties, like private persons, act at their peril in determining what their duties are under peculiar circumstances.
In construing statutes, courts must presume knowledge on the part of the Legislature of the provisions of the organic law of the state, relating to the subject-matter thereof, as well as of the principles of the common law, and will not impute to that body any intention to obstruct or impede the operation of constitutional provisions, or to innovate upon the settled policy of the law.
Since by the Constitution of this state, the subjects of land titles and taxation are united, to some extent, in one scheme or plan, set forth in article 13 of the Constitution, all statutes, relating to either and affecting the subject-matter of the provisions of said article must be interpreted and construed in the light thereof and made to harmonize with and conform to, said constitutional plan.
In the trial of an action of ejectment, in which the plaintiff asserts title, as a claimant under a junior grant, by transfer of an elder forfeited title to him, as a person eligible to take as a transferree under section 3 of article 13 of the Constitution, by mere payment of taxes on the land for five successive years after the year 1865, entries found in the land books of the county in which the land lies, not fully corresponding with the description of the lands as set forth in the junior patent, but agreeing in several material respects, are admissible as evidence to prove taxation of the land under said patent.
If, in such case, the entries in the land books and the patent agree respecting the quantity and local description of the land and the name of one of the patentees, but, in the entries, the name of one of two patentees is omitted, and the names of other persons not shown by the evidence to have had any interest in the land inserted in lieu thereof, the variance in description does not render the entries inadmissible on the question of identity of the land taxed with the land described in the patent.
Receipts for taxes paid under such entries and certificates of redemption from sales made thereunder to the state are admissible as evidence of payment of taxes on the land by claimants under the junior patent.
A letter, written by the auditor of the state, to the patentee whose name did not appear in the land book entries, nearly 40 years before trial, transmitting to him a certificate of redemption from a sale made under such entries is not admissible to prove identity of the land, though found among the papers and effects of such patentee, long after his death, and produced, for the purpose, by his grandson, one of the plaintiffs. (Poffenbarger, J., dissenting.)
Mere irregular entries of land in the land books for taxation and payment of taxes thereon, pursuant to such entry, prevent forfeiture of the title under section 6 of article 13 of the Constitution, and sustain a claimant by transfer under section 3 of said article if his status is in other respects sufficient.
Assessment of one-half of a tract of land, owned in common by two or more persons, in the name of one tenant, and the residue in the name of his co-tenant, does not invalidate or nullify the effect of payment of the taxes so assessed, though no partition of the land had been made.
On the question of the identity of land on which taxes have been charged and paid, as shown by the land books and tax receipts, with land on which it is claimed such charges and payments were made, the opinion of a person whose claim to competency in respect to knowledge is based solely upon the facts that he is surveyor of the county in which the land lies, has served as deputy for the clerk of the county court of said county, and executed the order of survey in the pending action, is not admissible.
A deed purporting to convey land situated in this state, acknowledged in the year 1872, in the city of New York, before a commissioner for the commonwealth of Virginia in the state of New York, recorded in this state in the county in which the land lies, and reacknowledged before an officer competent to take acknowledgments of deeds conveying land situated in this state, after the commencement of the action in which its use is desired as evidence, is admissible, between the parties thereto and against all other persons except subsequent purchasers claiming the land, and creditors seeking to charge it, under the same title.
Constructive notice, by recordation of deeds and other instruments, is operative only among parties claiming rights under the same title. Between claimants under distinct and hostile titles, notice is ordinarily immaterial and inoperative.
A deposition taken pursuant to a notice served on the attorney for a party who resides in this state, at the time of such service, cannot be used as evidence, in the absence of a waiver of the lack of service. Mere silence of the party, after knowledge of the service, and of his attorney, at the time of the service, does not constitute such waiver.
An appellate court will not disturb a verdict and judgment, because of the refusal of the trial court to admit evidence, offered after the conclusion of the introduction of evidence by both plaintiff and defendant, unless it appears that the trial court, in so doing, abused its discretionary powers, by refusing to allow an act in furtherance of substantial justice.
In an action of ejectment in which the plaintiff claims the title of the defendant by transfer, as a person made eligible by payment of taxes, without having possession of the land, by force of section 3 of article 13 of the Consitution, and has introduced evidence showing the land to have been sold to the state, in the year 1869, in the name of a person under whom the defendant claims, for nonpayment of taxes charged thereon for the years 1867 and 1868, under proceedings fatally defective, so that the title was not thereby acquired by the state, it is error to instruct the jury on the theory of title in the state by purchase at such sale.
When, in such action, the evidence shows forfeiture of the defendant's title by nonentry for taxation before the year 1884, and a redemption made from such forfeiture in said year by one under whom he claims, and there is no evidence of such forfeiture after the redemption, it is error to instruct the jury on the theory of a forfeiture and transfer of title occurring after said year.
Mere verbal inaccuracies in an instruction, the ordinary and common sense meaning of which is plain, do not render it improper.
A deed, the execution of which is not proved otherwise than by a certificate of acknowledgment, signed by the grantee as clerk of a county court, is properly rejected when offered as evidence.
A deed, the execution of which is not proved otherwise than by a certificate of acknowledgment, reciting that it was acknowledged by the grantor before his deputy, as such deputy, and signed by the grantor himself, as clerk of a county court, is inadmissible as evidence, and was properly rejected by the trial court.
A deed is void for uncertainty, which describes the land not otherwise than as follows: "All that certain tract or parcel of land situate in McDowell county, West Virginia, on Rings Branch, Peggy's Fork and Laurel Creek, all tributaries of the Dry Fork of Tug river, supposed by estimation to contain one hundred acres, be the same more or less."
The recitals of a deed nearly 60 years old, as to the pedigree of the grantors, are evidence against strangers.
An ancient deed, made by a commissioner to the heirs of a deceased purchaser of land, under an order of sale in a proceeding to sell it as forfeited for nonpayment of taxes, reciting the death of the purchaser, and inheritance by the grantees, is evidence of the facts recited, against strangers.
A deed, made by a commissioner appointed for the purpose, pursuant to a sale of land lying partly in this state and partly in the state of Virginia, made after division of the state, in a suit instituted in the latter state before the division, to foreclose a mortgage on the land, in which the defendant appeared and answered, admitting the debt and default and consenting to the decree of sale, is admissible as evidence, in connection with the decrees made and entered in the case, to prove a link in a chain of title.
Section 3 of article 13 of the Constitution of this state is not in conflict with the Constitution of the United States.
Section 6 of article 13 of the Constitution of this state does not deprive any person of property without due process of law.
Error to Circuit Court, ...
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