Caplan v. Funt, (CC 678)
| Citation | 126 W.Va. 676 |
| Decision Date | 04 February 1944 |
| Docket Number | (CC 676),(CC 678) |
| Parties | Martha Funt Caplan v. Victor H. ShawIsaac Funt v. Victor H. Shaw |
| Court | Supreme Court of West Virginia |
Where land is sold by the sheriff of a county at a delinquent tax sale for nonpayment of taxes and the tax purchaser thereafter obtains a deed therefor without complying with the provisions of Code, 11-10, such deed is unauthorized by law; and where such invalidity appears on the face of the deed a former owner or his heirs at law, having the right of redemption, may maintain a suit in equity to cancel the deed although the legal title of such persons has been forfeited to the State under Section 6, Article XIII of the Constitution of West Virginia and Code, 37-3-2.
Where land is sold by the sheriff of a county at a delinquent tax sale for nonpayment of taxes and the tax purchaser thereafter obtains a deed containing a description of the property other than that which was returned delinquent and sold to the tax purchaser, such deed is void and is not validated under Code, 11-10-22; and a former owner or his heirs at law, having the right of redemption, may maintain a suit in equity to cancel such deed, although the legal title of such persons has been forfeited to the State under Section 6, Article XIII of the Constitution of West Virginia and Code, 37-3-2.
A bill of complaint to set aside a tax deed which fails to aver that plaintiff has paid or tendered the purchase money, taxes, and costs paid, with interest thereon, under Code, 11-10-22, is demurrable; but plaintiff should be given an opportunity to amend such bill of complaint to include such averments.
"Laches is a delay in the assertion of a known right which works to the disadvantage of another, or such delay as will warrant the presumption that a party has waived his rights." Bank of Marlinton v. McLaughlin, 123 W. Va. 608, 17 S. E. 2d 213.
A former owner of land, or his heirs, in a suit in equity to cancel a tax deed, may not have an accounting for rents, issues, and profits received by the grantee in such deed during his possession of the property described therein, so long as the legal title formerly belonging to the plaintiff is vested in the State through forfeiture for nonentry of the property for taxation and nonpayment of taxes thereon; but upon cancellation of the deed and redemption of the property, the circuit court may upon proper showing decree an accounting between the parties to such suit.
Certified by Circuit Court, Marion County.
Suits in equity by Martha Funt Caplan and others and by Isaac Funt against Victor H. Shaw for cancellation of two tax deeds and accounting for rents, issues, and profits from lands conveyed. Defendant's demurrers to the bills of complaint were sustained by the trial court, which certified certain questions to the Supreme Court of Appeals.
Rulings affirmed in-part; reversed in part.
Morris S. Funt and Rummel, Blagg & Stone, for plaintiffs.
Harry Shaw and Ward Lanham, for defendant.
In the two cases under consideration, which we shall refer to as the "Caplan case" and the "Funt case", docketed by this Court upon certificates of the Circuit Court of Marion County, after it had sustained demurrers challenging the sufficiency of the bills of complaint, the respective plaintiffs seek cancellation of two tax deeds of conveyance of real estate situate in Fairmont, West Virginia, and an accounting for rents, issues and profits therefrom. The questions certified in the two cases are identical, with one exception, but the facts are dissimilar, and it is therefore necessary that we detail separately the allegations of each bill of complaint.
Martha Funt Caplan, Esther Funt Kaufman, Tillie Funt Alswanger, Fanny Funt Shein, and Morris S. Funt, all of the children of Ida Funt, deceased, and her husband, Isaac Funt, brought suit against Victor Shaw for cancellation of the tax deed of a tract of land situate on Morgantown Avenue, in the City of Fairmont.
Ida Funt had acquired this land by deed of conveyance from Cyrus F. Boyers, Jr. and wife on November 26, 1909. She died intestate, seised thereof, on June 20, 1924, leaving surviving her the children and husband named above. The land became delinquent for nonpayment of 1929 taxes, and was advertised and sold by the Sheriff of Marion County on December 14, 1931, because of such delinquency. At the sale defendant Shaw became the purchaser for the sum of $290.65. On July 14, 1933, defendant caused a notice to be issued by John F. Phillips, Clerk of the County Court of Marion County, which was directed to "Ida Funt's Heirs" and "Isaac Funt", stating that "a deed has been required as provided by law, which deed will be made to the said Victor Shaw on or after the 20th day of October, 1933, unless you against that day redeem the said real estate from the said sale". This notice was published in The Fairmont Times once a week for four successive weeks, commencing on July 18, 1933, and personal service thereof was had on Isaac Funt by delivering to him in person a copy thereof. No personal service of the notice was had upon any of the children of Ida Funt, although Martha Funt Caplan and Morris S. Funt were residents of Harrison County, West Virginia. The other children were nonresidents of this State. According to the allegations of the bill, defendant "had full knowledge and life-long acquaintance of and with the plaintiffs and could have by reasonable diligence discovered their whereabouts", and there is the further allegation that both defendant Shaw and the county clerk by the exercise of due diligence could have ascertained the whereabouts and names of plaintiffs "for the reason that the said defendant had knowledge that Carl Springer, then operating the East Side Building and Loan Association, of Fairmont, West Virginia, was acting as agent for Isaac Funt, and knew of his whereabouts". The county clerk executed and delivered a deed, bearing date July 19, 1934, and recorded the same day, to Victor Shaw as grantee, conveying to him the property involved in the delinquency. It is alleged also that since the date of the deed defendant has received and collected a large amount of income and rents from the real estate, to which, as plaintiffs aver, they are entitled. Plaintiffs assert that the deed should be cancelled because: (1) The demand and request "for issuance of notice of demand for deed", were not made within the time required by Code, 11-10-16; (2) the notice was invalid by reason of its having been issued and published before report and survey were filed in the clerk's office, and was not directed to plaintiffs as heirs at law of Ida Funt, deceased; (3) defendant failed to cause notice to be served upon plaintiffs, Martha Funt Caplan and Morris S. Funt, then residents of West Virginia; and (4) the deed was not made and executed within the time permitted and required by statute.
By deed dated August 8, 1916, Cyrus F. Boyer, Jr. and wife, conveyed to plaintiff, I. Funt, real estate situate near Morgantown Avenue in the City of Fairmont, bounded and described as follows:
"Beginning at a post, corner to the Fairmont Investment Company's land, (originally the John A. Leonard land), and running thence S 63° 30' W. 105 feet to an iron pin, corner to land formerlyconveyed by the party of the first part to the party of the second part; thence S 24° E 93.5 feet to a stake in line of a street; thence with said street N. 64° 15' E 104 feet to an iron pin, in line of the Investment Company, (formerly Leonard), thence N 24° 55' W 95 feet to the place of beginning."
This property became delinquent for nonpayment of 1929 taxes and was duly advertised for sale by the Sheriff of Marion County and sold by him on December 14, 1931, whereat defendant Victor Shaw purported to become the purchaser thereof for $195.10. Defendant Shaw, as the bill alleges, caused James J. Ruddy, Surveyor of Marion County, to make a survey and report of the property, as required by law, which report, dated May 19, 1933, was not filed in the county clerk's office until December 4, 1933. The surveyor's report contains the statements that he has ascertained the description by metes and bounds "of that certain tract or parcel of land charged on the land books of Marion County, West Virginia, in Union Independent District thereof, in the name of Isaac Funt, as situate in East Park Addition to the City of Fairmont, for the year 1929, * * * and sold by the said Sheriff of Marion County on the 14th day of December, 1931, * * * and purchased at said sale by said Victor Shaw, in the name of Victor Shaw, for the sum of $195.10 * * *", and then describes the land as follows:
Under date of July 14, 1933, the county clerk directed a notice to Isaac Funt, that defendant, the purchaser of the following real estate "Parcel, Morgantown Ave., located in Union Ind. District, City, which was sold by the Sheriff of ...
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...of the county commission power to make a tax deed. See, e.g., Stiles v. Layman, 127 W.Va. 507, 33 S.E.2d 601 (1945); Caplan v. Shaw, 126 W.Va. 676, 30 S.E.2d 132 (1944). In Syllabus Point 1, Shaffer v. Mareve Oil Corp., 157 W.Va. 816, 204 S.E.2d 404 (1974), 8 where an attack was made under ......
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