Bumgarner v. First Nat. Bank

• Decision Date: 25 April 1912
• Citation: 74 S.E. 996,70 W.Va. 787
• Parties: BUMGARNER et al. v. FIRST NAT. BANK OF PARKERSBURG.
• Court: West Virginia Supreme Court

74 S.E. 996

70 W.Va. 787

BUMGARNER et al. v. FIRST NAT. BANK OF PARKERSBURG.

Supreme Court of Appeals of West Virginia.

April 25, 1912

Submitted June 6, 1910.

Syllabus by the Court.

In a proceeding under Code 1906, c. 31, § 16 (section 874), by a tax purchaser to contest the right of a creditor of the delinquent taxpayer to redeem the land sold for taxes, the burden is on the creditor to prove that his debtor has an interest in the property sold for taxes chargeable with his debt, and that the creditor has right to redeem.

Though the transcript from a justice's docket does not show that five days elapsed between the date of service of the summons and a judgment, yet, if the justice has jurisdiction, the judgment is not void and open to collateral attack only for the failure of the docket to show such fact.

If a justice has jurisdiction of a case, there is a presumption that due steps and proceedings were had in the proceedings of the action; and a failure of the docket to show that proceedings were regular will not make a judgment void.

It is not essential that a judgment be docketed in the judgment lien docket to enable the judgment creditor to redeem land sold for taxes.

To enable a judgment creditor of one of two or more partners to redeem partnership land sold for taxes in the name of the firm, it is not required that such creditor shall show that after payment of partnership liabilities a surplus of assets will remain.

Error to Circuit Court, Wirt County.

Action by C. D. Bumgarner and another against the First National Bank of Parkersburg. Judgment for plaintiffs, and defendant brings error. Reversed and rendered.

T. A Brown, of Parkersburg, for plaintiff in error.

Walter Pendleton, of Spencer, and Bruce Ferrel and Albert Smith both of Grantsville, for defendants in error.

BRANNON P.

The First National Bank of Parkersburg obtained a judgment before a justice against R. B. Graham. John P. Bumgarner made a deed conveying two lots of land in the town of Elizabeth to "Graham & Co." These lots were sold for taxes in the name of Graham & Co., and were purchased by D. H Bumgarner. The said bank, claiming that its debtor, R. B Graham, had an interest in the said lots as one of the firm of Graham & Co., and claiming as his creditor by said judgment a right to redeem the property from said tax sale, tendered the money to Bumgarner in redemption of said lots; but Bumgarner refused to receive it and denied the right of redemption, and the bank deposited the money with the clerk of the county court. Later Bumgarner gave the bank notice that he disputed the bank's right to redeem, and requiring it to appear before the circuit court of Wirt county and prove its right to redeem from the tax sale. This proceeding is allowed by Code 1906, c. 31, § 16 (section 874). The case was tried by the court, and the court refused to allow redemption, and directed a deed to be made under the tax sale by the clerk to Bumgarner, and the bank has sued out a writ of error.

The section of the Code just referred to in words places the burden of proof of the right to redeem on the person claiming such right, as it authorizes a notice to him to appear "and prove his or their right to redeem," and says that, if he "fail to prove to the satisfaction of the court that he has right to redeem," the court shall make an order accordingly and direct a deed to be made to the tax purchaser. Bumgarner claims that the bank failed to prove its right to redeem. He says that the bank has not shown that R. B. Graham, its debtor, was one of the firm of Graham & Co. The lots were purchased by D. H. Bumgarner, and he died, and the proceeding was revived in the name of Claud D. Bumgarner, his heir, as plaintiff. A deed was made by Graham & Co. to Claud D. Bumgarner for the lots, and this recites that the partnership of Graham & Co. was composed of Richard B. Graham and D. N. Graham. This recital of the fact by a deed to which Claud D. Bumgarner was a party, with some other evidence, proves that R. B. Graham was one of the firm owning the lots.

The plaintiff says that the bank failed to show that after payment of partnership debts there would be a surplus belonging to the partners, so as to say that R. B. Graham had an interest in the lots entitling his creditor to redeem. We are cited to Conaway v. Stealey, 44 W.Va. 163, 28 S.E. 793, holding that "partnership assets must be first applied to the extinguishment of partnership debts, and a partner has no leviable interest, so far as individual debts are concerned, until the partnership debts are satisfied." That case only means that social debts must be first paid. It recognizes an interest in the partner after them. So does Kenneweg v. Schilansky, 45 W.Va. 521 31 S.E. 949. It is surely true that an execution against one of the firm can create a lien on his contingent interest. A judgment would create a lien on his interest in the firm-- that interest in him after firm debts. 30 Cyc. 599. We cannot say that this contingent or probable,...