Barnes v. Bee

• Decision Date: 13 June 1905
• Citation: 138 F. 476
• Parties: BARNES v. BEE et al.
• Court: U.S. Court of Appeals — Fourth Circuit

138 F. 476

BARNES v. BEE et al.

United States Circuit Court, N.D. West Virginia.

June 13, 1905

Van Winkle & Ambler and Merrick & Smith, for plaintiff.

George W. Johnson and T. P. Jacobs, for defendant.

DAYTON District Judge.

John H Kelley and Clara V. Kelley, on March 29, 1898, conveyed to plaintiff, Barnes, a citizen of Ohio, 'one-sixteenth part of all oil and gas and other mineral substances in and under' two parcels of 69 1/2 and 2 1/2 acres of land situate in Ritchie county, this state, fully described in the deed by metes and bounds, for the consideration expressed of $2,000 cash. By deed of September 21, 1898, recorded September 24, 1898, Barnes conveyed a half of this, or 1/32 interest in all, to Mallory Bros., but they subsequently by deed dated March 29, 1903, reconveyed back this interest to Barnes. The surface and remaining 15/16 undivided interest of the 'oil, gas, and other mineral substances ' remained vested in Mrs. Kelley. On the landbooks of Ritchie county, Mrs. Kelley, for the year 1898, was assessed with these two tracts separately as 69 1/2 acres and 2 1/2 acres in fee, as situate on 'Wts of Bond Creek,' northeast 9 miles from courthouse, valued each at $6.50 per acre, and a total valuation of $425 for the 69 1/2 acres, instead of $451.75, the true total at that rate, and for the was assessed for state purposes on the 69 1/2 acres at the rate of 25 cents on the $100, the sum of $1.13, the full amount due on the true valuation, 6 3/4 cents more than due on the valuation given; 45 cents for state school purposes, at a rate of 10 cents, the correct amount on the true valuation, 2 1/2 cents too much on the valuation given $1.81 for county purposes, at a rate of 40 cents, the correct amount on the true valuation, 11 cents too much on the valuation given; $2.26 for road purposes and teachers' fund, respectively, each at the rate of 50 cents, the right amount on the true valuation, 12 1/2 cents too much on each for the valuation given; and $1.36 for building fund at a rate of 30 cents, the correct amount on the true valuation, 8 1/2 cents too much on the valuation given. The 2 1/2-acre tract also shows that, while the valuation was fixed at $15, instead of $16.25, the taxes were assessed upon the true valuation, and not the valuation given. These tracts had been acquired by Mrs. Kelley by different deeds from different parties. In pencil, on the assessment book, just after Mrs. Kelley's name, is written, '1-16 oil reserve to G. W. Barnes;' but the plaintiff, although his deed bore date two days before April 1st, the assessment date fixed by law, was not assessed in any manner for that year on account of his 1/16 undivided interest in the 'oil, gas, and other mineral substances in and under' said two parcels of land. For the year 1899 Mrs. Kelley is assessed with these same two tracts separately, as having title in fee, and the same location, bearing, and distance from the courthouse are given, as also the same valuation of $6.50 per acre each, and the same erroneous total valuations of $425 and $15, respectively. This year, however, she was not assessed at the given rates upon the true total valuation, as was the case in the preceding year, but upon the false total valuations given for both years. In this last year, following her name, in parenthesis, are the words, 'Less 1/16 oil, &c.' For this year 1899, when, by the records, Mrs. Kelley was shown to be vested with fee-simple title in the surface of and in 15/16 undivided interest in the 'oil, gas, and other mineral substances in and under' these two tracts and 1/32 of the latter, undivided, was in plaintiff, Barnes, and the remaining 1/32 thereof was in Mallory Bros., the said interest, but plaintiff, Barnes, was assessed with '1/16 oil, etc., reserve' in 72 acres, claimed now to be the 69 1/2 and 2 1/2 acre tracts consolidated, at the rate of 50 cents per acre, or a total valuation of $36, upon which taxes amounting to 78 cents in all, according to the fixed rates, were charged. These taxes were not paid by Barnes, by reason of which this interest was returned delinquent, and sold by the sheriff January 13, 1902, and purchased by defendant Bee, who paid a total for taxes and expenses of $2.35, and on the 16th day of January, 1903, had a surveyor's report made, and on January 19, 1903, received from the clerk of the county court a deed therefor, which surveyor's report and deed was on said last day admitted to record. It is to be noted that neither the report nor deed bound the 72 acres as a single tract, but simply copy the metes and bounds of the 69 1/2 and 2 1/2 acres, respectively, apparently from the deed of Kelley and wife to Barnes, to which both refer. Meanwhile, on the 20th day of October, 1902, Kelley and wife and Barnes made a lease, in which Mallory Bros., did not join, to Upham & Rolston, whereby they granted the lessees all the oil and gas in and under these lands described as 70 acres, and described generally be reference to the abutting owners, for the period of two years upon usual terms for the payment of one-eighth royalties and other conditions not necessary to set forth. This lease was assigned by the lessees to Sarber Bros. & Co., and on January 14, 1903, the lease and assignment were together admitted to record. A valuable 200-barrel oil well resulted, and this one-sixteenth undivided interest became of value estimated at from $5,000 to $6,000. Defendant Bee insisted upon his being the owner of the interest under his tax deed, refused to surrender his claim; hence this suit brought to set aside said tax deed as a cloud upon his title, and the appointment of a receiver herein, to whom has been paid over the proceeds arising from the sale of oil due to this interest.

Casting aside all minor and technical objections, the grounds set forth and insisted upon as the basis for this relief may be reduced to three: First. Because of errors and variances apparent on the face of the tax record. Second. Because the whole property, including the one-sixteenth undivided interest in the 'oil, gas, and other mineral substances' sold, was, for the year in by her. Third. Because the assessment of the one-sixteenth undivided interest in the 'oil, gas, and other mineral substances' was wholly unauthorized by law, and therefore void, and, in consequence, no sale could be made thereof, and no title thereto secured thereby.

Taking up the first ground, it may be noted that the following objections may be urged to the tax record: (a) The description given in the assessment as '1-16 oil, &c., reserve,' was wholly misleading. Barnes had not 'reserved' any such interest in 72 acres, or, so far as shown, in any other tract. He had sold no land then in which to 'reserve' anything. (b) The assessment of such interest in 72 acres was misleading. He never had owned such interest in a single tract of 72 acres, but had purchased said interest in two distinct and separate tracts of 69 1/2 acres and 2 1/2 acres, which had theretofore been, and were that year, assessed as separate tracts to Mrs. Kelley; and he had made no request for, and had no knowledge of, any consolidation. (c) The assessment to him of a one-sixteenth interest was erroneous and misleading, for on the 1st day of April, 1899, the assessment date, he had no one-sixteenth interest in a 72-acre tract, nor in the 69 1/2 and 2 1/2 acre tracts, which could be consolidated into such. He had sold one-half of a sixteenth interest in the parcels in September, 1898, to Mallory Bros. by deed which had been duly recorded, and knowledge of, by statute, was expressly required to be taken by the assessment officers. It is insisted that Barnes had right to presume that officers would discharge their duty in this behalf, and that, if he was assessable at all upon an undivided interest by the action of the assessment officers, he would be so assessed upon the true interest owned by him as disclosed by the record, and not upon a wholly different interest. (d) Both the delinquent and sale returns vary wholly from the assessment. These returns show Barnes to be returned delinquent on 72 acres, qualified before his name by the letters 'M. R.' under title 'Estate Held,' and the sale return shows that said 72 acres with such 'M. R.' estate held therein by Barnes were sold, and purchased by Bee. The letters 'M. R.' are explained to mean 'Mineral Right.' It is insisted that the whole mineral right in the 72 acres was therefore returned delinquent and sold in the name of Barnes, who never had had more than a sixteenth undivided interest. (e) Both the surveyor's report and the deed varied from the assessment, the delinquent and the sale returns touching the description of the tracts, and the interest therein sold.

There would be no difficulty in this matter had this tax sale and conveyance been made prior to the year 1882, but on the 24th of March of that year (chapter 130, p. 387, Acts 1882) the Legislature enacted what is now section 25 of chapter 31 of the Code of West Virginia of 1899, making sweeping changes in the law as then existing. The purpose and object of this section is very clear. It manifestly was designed, as Brannon, J., expresses it in Winning v. Eakin, 44 W.Va. 19, 28 S.E. 757, 'to render these tax sales efficient to collect delinquent taxes, and to confer upon the purchaser a substance, and not a shadow. ' Changing the former law as contained in chapter 117, p. 308, Acts 1872-73 which provided a tax deed should not be set aside except for irregularity apparent on the face of the proceedings, and of character such as 'materially to prejudice the rights of the owner whose real estate is sold,' it enacted such tax deed should not be set aside unless the 'irregularity appear on the face of such proceedings...