Carrell v. Mitchell et al.
| Decision Date | 26 November 1892 |
| Citation | 37 W.Va. 130 |
| Court | West Virginia Supreme Court |
| Parties | Carrell v. Mitchell et al. |
In an action of ejectment, where the plaintiff and defendant derive their title from the same grantor, it is unnecessary that the plaintiff, in making a prima facie case, should trace his title furthur back than to said grantor, (p. 182.)
In order that a defendant should be entitled to interpose an equitable defence, such as was attempted in this case, notice must be given of such intention in writing, as required by section 22 of chapter 90 of the Code. (p. 133.)
If a party holding a deed of trust upon a tract of land, to indemnify him as surety, pays the taxes on said tract of land, which is assessed to the grantor in said trust in the district where it is located, and said grantor conveys said land to another party, who has the land placed upon the land-book in a different district from the one in which it is located, and suffers the same to be returned delinquent and sold for taxes, and the party entitled to the benefit of said trust purchases said land at a trust-sale under said trust-deed, his title so acquired wili not be affected by said delinquent sale and a deed made in pursuance thereof, (p. 133.)
T. JE. Davis for plaintiffs in error cited 14 Am. Dec. 73; 51 Am. Dec. 147; 60 Am. Dec. 407; 95 Am. Dec. 788; 100 Am. Dec. 299; 81 Va. 236; 4 Burr. 2487; 11 Gratt. 172; Ad. Eject. 43; 30 W. Va. 505; 32 W. Va. 600; 21 How. 483; 24 How. 402; 113 Wall. 330; 76 Va, 288; 75 Am. Dec. 450; 23 W. Va 675; 12 W. Va. 1; 1 Rob. 424; 26 Mitch. 288; 28 Mich. 76; 81 Am. Dec. 58, n. 58; 84 Am. Dec. 155; 68 Am. Dec. 274, n. 280; 29 Mich. 364; 90 Am. Dec. 230.
Peck Ayres for defendant in error cited Hutch. Land Titles, § 505; 75 Va. 493; 6 Wall. 642; 2 Grenl. Er. § 307; 32 W. Va. 600; 3 Wash. Real Prop. (3d Ed.) Ill 112; Id. 109; 49 Am. Dec. 379; Hutch. Land Titles, § 496, 498, 499; 9th Gratt. 223; 6 W. Va. 200; Tyler on Eject. 543-535; 2 Wash. Real Prop. 159, 160; 10 Gratt. 231; 75 Va. 300; 15 Gratt. 279; 16 W. Va. 355; Blaekw. Tax Titles 140, 145, 146; Id. 147, 148, 151, 154, 155, 160, 163, 184, 185; Code (1868) c. 29, s. 31; 16 W. Va. 345; Id. 108; 19 W. Va. 223; 19 W. Va. 153; 26 W. Va. 702; 18 W. Va. 598, 610; Id. 612, 628, 629; 19 W. Va. 564: 23 W. Va. 675; 24 W. Va. 173, 177, 178.
This was an action of ejectment brought by S. D. Carrell against R. B. Mitchell in the Circuit Court of Ritchie county, to April rules, in the year 1886, for the recovery of a tract of land containing sixty seven and one half acres, situated in said county.
On the 15th day of July, 1886, R, B. Mitchell, Jr., the landlord of said R, B. Mitchell, appeared by counsel, and asked to be made defendant in place of said R, B. Mitchell, and on his motion he was ordered to be made defendant, and thereupon he interposed a plea of not guilty, upon which issue was joined and the case was continued.
On the 5th day of March, 1888, the case was submitted to a jury, and, the plaintiff having closed his evidence, the defendant demurred thereto and the plaintiff joined therein, and the jury found that, "if the law be for the plaintiff upon the demurrer of the defendant to the evidence, for the plaintiff the land and premises in the declaration mentioned, in fee-simple estate" and that he was entitled to the possession thereof, and that the defendant was in possession of said land at the time of the institution of this suit, and that he unlawfully withheld the possession thereof from the plaintiff; and they further found one cent damages for the plaintiff against the defendant. But, if the law be for the defendant on the demurrer to the evidence, then they found for the defendant,
On the 19th day of October, 1888, the court, having heard the argument of counsel on said demurrer, was of opinion that said evidence was sufficient in law for the plaintiff to have and maintain his said action against the defendant, and judgment was rendered that the plaintiff recover the possession of said land, and his costs.
The defendant excepted to the rulings of the court, and tendered two bills of exceptions numbered 1 and 2, which were signed, sealed and saved to him and made a part of the record in the cause.
On the 31st day of October, 1889, the following order was entered: "A certified decree from the chancery side of this court having been filed in this cause, setting aside and annulling the verdict and judgment heretofore rendered in this cause, and reinstating the same upon the docket, and the cause being reinstated upon the docket for trial upon the declaration and pleas with issues joined heretofore, the parties being present by their attorneys, the cause, was again submitted to a jury, which submission the 1st day of November, 1889, resulted in a verdict for the plaintiff; and thereupon the defendants, by their counsel, moved the court to set aside the verdict of the jury and grant them a new trial, because the verdict was contrary to the law and the evidence, which motion was overruled by the court, and judgment was rendered on said verdict for the land in question, and the possession thereof."
Upon the trial the defendant took twelve bills of exceptions, which were signed, sealed and made part of the record, setting forth among other things the evidence, which was introduced, and the instructions which were asked, by the plaintiff and the defendant, and from the judgment aforesaid the defendant obtained this writ of error.
Counsel for the plaintiff in error in his petition for this writ of error says: "It appears that the defendant derived title from one S. J. Horn, from whom plaintiff claimed title under his trust deed." It is claimed as error that the court allowed the plaintiff to show that he derived title by means of a sale under a trust-deed executed by S. J. Horn, without showing any title in said Horn, but the admission on the part of the plaintiff in error that the defendant claimed title from the same source, to wit: from said S. J. Horn, obviates the necessity of showing how said Horn derived his title.
It is claimed that the plaintiff', S. B. Carrell, made fraudulent representations in the presence of defendant Mitchell, and induced him. to believe that the debt secured by the deed of trust under which he claims to have purchased the property in controversy was paid off and satisfied, and the deposition of R. B. Mitchell, Jr., was offered in evidence to prove said fact, but was excluded by the court, and the action of the court in excluding said deposition is assigned as error.
That the Circuit Court acted properly in rejecting said evidence is apparent, for two reasons: In the first place, said conversation between the plaintiff, Carrell, and R, B. Mitchell, Jr., appears to have occurred on the 8th day of July, 1886, while said R. B. Mitchell, Jr., purchased said land at the tax sale on the 14th day of October, 1879, nearly seven years before, and it could have had no influence whatever in inducing him to make said purchase. And, again, the defence would be classed as an equitable defence, and under the statute could not be made available unless notice in writing of such defence had been filed with his plea. I can therefore see no error on the part of the court in rejecting that portion of said deposition which related to said conversation.
At this point we may inquire what title or estate R. B. Mitchell, Sr., acquired by his deed from S. J. Horn. At the time of his purchase the deed of trust from Solomon J. Horn to William Douglass, trustee, dated the 4th day of May, 1869, was duly recorded in the clerk's office of the County Court of Ritchie county, and by his purchase from said Horn the said R. B. Mitchell only purchased the equity of redemption, and when said sale for taxes was subsequently made, on the 13th day of October, 1879, if the same was regular in every respect, the said R. B. Mitchell, Jr., only acquired thereby such title as was vested in said R, B. Mitchell, Sr. Rut, in passing upon the regularity of said sale, the validity of said deed to R. B. Mitchell, Jr., and the character of the title, if any, acquired thereunder, we must look to the statute which was in force at the time the delinquent list was returned and the sale made.
The proceedings for the sale of this tract of land were under the provisions of chapter 117 of the Acts of 1872-73, and section 25 of said chapter provides:
"When the purchaser of any real estate so sold, his heirs or assigns, have obtained a deed therefor according to the provisions of this chapter, and caused the same to he admitted to record in the office of the clerk of the County Court of the county in which such real estate, or the greater part thereof, may lie, such estate shall stand vested in the grantee in such deed in and to said real estate as was at the commencement of, or at any time during, the year or years for which the said taxes were assessed, vested in the party assessed with the taxes for which it was sold, and in any other person or persons having title thereto who have not, in his or their own name, been charged on the assessor's books of the proper county or district with the taxes on said real estate for the year or years for the taxes of which the same was so sold, and actually paid the same as required by law, notwithstanding any irregularity in the proceedings under which the said grantee claims title, unless such irregularity appear on the face of the proceedings of record in the office of the clerk of the County Court, and be such as materially to prejudice the rights of the owner whose real estate is so sold, and it be clearly proven to the court or jury that such diligence has been exercised by the party in whose name it was sold that but for such irregularity the said party would have redeemed the same under the provisions of the...
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