60 F. 21 (4th Cir. 1894), 53, Read v. Dingess

Docket Nº:53.
Citation:60 F. 21
Party Name:READ v. DINGESS et al.
Case Date:February 07, 1894
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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60 F. 21 (4th Cir. 1894)

READ

v.

DINGESS et al.

No. 53.

United States Court of Appeals, Fourth Circuit.

February 7, 1894

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Z. T. Vinson and J. S. Clarke, for appellant.

N. Dubois Miller, James H. Ferguson, and J. F. Brown, for appellee.

Before FULLER, Circuit Justice, and SEYMOUR and SIMONTON, District Judges.

SEYMOUR, District Judge.

Complainant alleges, among other things, (which it is unnecessary to the opinion to state,) a grant, of date January 21, 1796, of 100,000 acres of land in Virginia, within the boundaries of what is now West Virginia, lying mainly in Logan county, in said state; a forfeiture of the tract under the taxing laws of Virginia, whereby it became vested in the president and directors of the literary fund; an act of the Virginia legislature of March 15, 1838, by which the title of the president and directors of the literary fund was transferred to and vested in one Dumas, in trust for the estate of the former owners of the tract and certain creditors, discharged from all taxes due before 1838; the due appointment of successive trustees of the trust, the last of whom is the complainant, and payment of taxes by trustees for the years 1840-54, inclusive. He states that the land was not charged to the trust with taxes from 1857 to 1860, and that it has never been entered for taxation on the land books of the counties in which it is situated since the organization of the state of West Virginia, (June 20, 1863.) He further alleges that, by reason of such fact, it became liable to be sold by the commissioner of school lands for the benefit of the school fund; that, during the years 1882-88, such commissioner sold various parts of it to defendant, as waste and unappropriated land; and that the school commissioner has since made deeds to him of the same. He further alleges that he has ever since had a right, under the laws of West Virginia, to redeem said land, upon payment of the taxes in arrears, which right, he avers, can only be divested by a sale for the benefit of the school fund, in conformity with the law providing for such sales, and that no such proceedings have been had. He avers, however, that, until the deeds from commissioner to complainant are set aside, he is embarrassed in the exercise of that right. He alleges that the commissioner sold the land as waste and unappropriated, without notice to him, for the express purpose of defeating his redemption. His prayer is that the deeds to defendant be set aside and annulled, and that he be put in possession of the land.

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The demurrer, among other grounds of demurrer, assigns the following:

'Third. Because it appears from the said bills of the said plaintiff, and each of them, that under the constitution of the state of West Virginia, and the laws in force in said state, the plaintiff, John R. Read, has no right to redeem the said 100,000 acres of land, or any part or parcel of the said land, and especially the parts or parcels of the 100,000 acres in question in this suit, the same having been absolutely forfeited, first to the state of Virginia and to the president and directors of the literary fund, and then to the state of West Virginia, and became the absolute property of said state, for the failure of said Robert E. Randall, trustee, and of the plaintiff, to cause the said tract of 100,000 acres, or any part of it, to be entered and charged with taxes on the land books of said Logan county, or of any other county in West Virginia, in the manner prescribed by law, for more than five successive years prior to the year in which this suit was brought, and in fact for any year or years from the creation of West Virginia to the present time, to wit, A. D. 1892; and because it appears by said bills, and each of them, that no taxes have, in any view of the case, been paid on said 100,000 acress of land, by either of the trustees named in said bills, and each of them, since the year 1855.

'Fourth. Because it appearing by the said bills, and each of them, that, the lands therein referred to having been absolutely forfeited to the state of West Virginia, the plaintiff has no right or claim of property therein, and consequently has no title upon which to maintain the present bill.'

The constitution of West Virginia (article 13, § 6) provides as follows:

'It shall be the duty of every owner of land to have it entered on the land books of the county in which it, or a part of it, is situated, and to cause himself to be charged with the taxes thereon, and pay the same. When for any five successive years after the year 1869, the owner of any tract of land containing 1,000 acres or more, shall not have been charged on such books with state tax on said land, then by operation hereof, the land shall be forfeited and the title thereto vest in the state. But, if, for any one or more of such five years, the owner shall have been charged with state tax on any part of the land, such part thereof shall not be forfeited for such cause.'

The legislature of West Virginia has passed several acts providing for the forfeiture of land not entered on the proper books for taxation. The earliest of them is the act of March 4, 1869, the seventh section of which is given:

'(7) It shall be the duty of any person owning any real estate to cause the same to be entered on the land books of the proper assessor and charged with the state taxes thereon not charged to the owner, for the year eighteen hundred and thirty-two, or any year thereafter, heretofore or hereafter, not released, paid or in any manner discharged, which were and shall remain properly chargeable thereon. When any person owning real estate has not, or shall not have for five successive years, been charged on such books with such taxes on such real estate, the same, and all the title, right and interest of the owner, legal and equitable thereto, shall without any proceeding be absolutely forfeited to and vested in this state. Provided, however, that such owner may, within one year after the passage of this act, cause such real estate to be charged with such taxes, chargeable for any such years heretofore, and thereby prevent a forfeiture for the failure so to charge the taxes for such years.'

The constitutional provision is of later date than this statute. The new constitution of West Virginia, which contains it, was adopted in 1872. At the session of the legislature following the adoption of the new constitution, it passed an act to carry into

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effect article 13, § 6, of the constitution, (Acts 1872-73, c. 134.) The law upon the subject has been certified, and appears in chapter 105 of the Code of West Virginia, (Warths' Code, p. 639, Ed. 1884.)

The right of redemption, as it existed at the commencement of this action, appears in the act of February 21, 1887, as follows:

'(14) Any owner may, within the time aforesaid, file his petition in the said circuit court, stating his title to such lands, accompanied with the evidences thereof, and upon full and satisfactory proof that at the time the title to said lands vested in the state he had a good and valid title thereto, legal or equitable, superior to any other claimant thereof, such court shall order the excess mentioned in the next preceding section to be paid to such owner; and upon a properly certified copy of such order being presented to the auditor, he shall draw his warrant on the treasury in favor of such owner, or his personal representative, for such excess. At any time during the pendency of the proceedings for the sale of any such land as hereinbefore mentioned, such former owner, or any creditor of such former owner of such land having a lien thereon, may file his petition in said circuit court as hereinbefore provided, and asking to be allowed to redeem such part or parts of any tract of land so forfeited, or the whole thereof, as he may desire, and upon such proof being made as would entitle the petitioner to the excess of purchase-money hereinbefore mentioned, such court may allow him to redeem the whole of such tract if he desire to redeem the whole, or such part or parts thereof, as he may desire, less than the whole, upon the payment into court, or to the commissioner of school lands, all costs, taxes and interest due thereon, as provided in this chapter, if he desire to redeem the whole of such tract; or if he desire to redeem less than the whole of such tract, upon the payment, as aforesaid, of so much of the costs, taxes, and interest due on such tract as will be a due proportion thereof for the quantity so redeemed. But if the petition be for the redemption of a less quantity than the whole of such tract, it shall be accompanied with a plat and certificate of survey of the part or parts thereof sought to be redeemed. Whenever it shall satisfactorily appear that the petitioner is entitled to redeem such tract, or any part or parts thereof, the court shall make an order showing the sum paid in order to redeem the whole tract, or the part or parts thereof which the petitioner desired to redeem and declaring the tract or part or parts thereof, redeemed from such forfeiture, so far as the title thereto was in the state immediately before the date of such order; which order, when so made, shall operate as a release of such forfeiture so far as the state is concerned, and of all former taxes on said tract or part or parts thereof so redeemed, and no sale thereof shall be made. If the redemption be of a part or parts of a tract, the plat or plats and certificate of the survey thereof, hereinbefore mentioned, together with a copy of the order allowing the redemption shall be recorded in a deed book in the office of the clerk of the county court. Provided, that such payment and redemption shall in no way affect or impair the title to any portion of such land transferred...

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