City of Beckley v. Hatcher, CC782

• Decision Date: 16 October 1951
• Docket Number: No. CC782,CC782
• Citation: 67 S.E.2d 20,136 W.Va. 169
• Court: West Virginia Supreme Court
• Parties: CITY OF BECKLEY, etc. v. HATCHER et al.

Page 20

67 S.E.2d 20

136 W.Va. 169

CITY OF BECKLEY, etc. v. HATCHER et al.

No. CC782.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 6, 1951.

Decided Oct. 16, 1951.

Syllabus by the Court.

1. Paving assessments may be levied by a municipality against land owned by the State of West Virginia, within such municipality, under authority conferred by Section 11, Chapter 89, Acts of the Legislature, 1949, though no enforceable lien is thereby created.

2. Land forfeited for nonpayment of taxes due the State, and having become irredeemable, may not be assessed with a paving lien in the name of a former owner.

3. In the case of the construction of any permanent improvement under an invalid assessment for the cost thereof, the levying body is authorized, under the provisions of Section 13, Chapter 89, Acts of the Legislature, 1949, within ten years after the completion of such improvement, to reassess the person against whom the cost of such improvement might properly be assessed.

Robert J. Ashworth, James K. Edmundson, Beckley, for plaintiff.

Benjamin D. Tissue, Beckley, for defendants.

LOVINS, Judge.

This suit comes to this Court on the certificate of the Circuit Court of Raleigh County. Its purpose is to enforce paving liens against three lots or parcels of land specially benefited by the paving of streets on which such lots are located.

The City of Beckley, a municipal corporation, who sues for the use and benefit of Investment Securities, Inc., a corporation assignee of Vecellio and Grogan, Inc., a corporation, brought this suit against Theo Hatcher, Jennie Williamson, and J. H. Rucker, and, if the two latter persons are deceased, all of their unknown heirs at law. The Circuit Court overruled a demurrer to a bill of complaint herein denominated an amended and supplemental bill. The following facts are alleged in the bill:

The City of Beckley, at an election held in such city on the 5th day of August, 1938, adopted statutory provisions relative to the paving of streets in municipalities. See Code, 8-9.

Lot 31 of the Wildwood Addition to the City of Beckley was conveyed to the defendant Jennie Williamson on October 7, 1913, and Lots 8 and 9 of Section 28 of the Central Addition to such city were conveyed to J. H. Rucker by deed dated August 20, 1926.

Lot 31 aforesaid was returned delinquent in the name of Jennie Williamson, for taxes due the State of West Virginia for the year 1926, and was sold to the State of West Virginia at the tax sale held by the Sheriff of Raleigh County in December, 1927. Lots 8 and 9 were returned delinquent in the name of J. H. Rucker, for taxes due the State of West Virginia for the year 1927, and were sold to the State at the tax sale held by the Sheriff of Raleigh County in December, 1928.

The Deputy Commissioner of Forfeited and Delinquent Lands of Raleigh County instituted a suit in the Circuit Court of said county on the 8th day of September, 1949, styled 'State of West Virginia v. G. F. Barnard and others', in which J. H. Rucker was made a party defendant. One of the purposes of that suit was to sell Lots 8 and 9 for the benefit of the school fund. A similar suit was instituted on the 9th day of September, 1949, styled 'State of West Virginia v. Elyadia Bassett and others', in which Jennie Williamson was made a party defendant. One of the purposes of that suit was to subject Lot 31 to sale for the benefit of the school fund.

Lots 8, 9, and 31 were decreed to be sold by the Circuit Court of Raleigh County on or about November 18, 1949, and the deputy commissioner, in accordance with the decree of sale, sold the three lots on the 17th day of December, 1949, to Theo Hatcher. The sale as to Lot 31 was confirmed on January 12, 1950, and as to Lots 8 and 9 the sale was confirmed on February 20, 1950. The deputy commissioner thereupon executed and delivered to defendant Hatcher deeds of conveyance for the three lots.

The plaintiff in the instant suit derives its liens by reason of a paving project initiated on the 9th day of March, 1948, as to Lot 31, and in the month of August, 1949, as to Lots 8 and 9. After certain procedure, a contract was awarded for grading and paving the streets on which the three lots are situate. The grading and paving of such streets having been completed and accepted by the city, the cost of paving was apportioned to the lots specially benefited, including the three lots in question. After further proceedings, including examination and notice to interested parties, the council of the City of Beckley confirmed the assessments as to Lot 31 on July 26, 1949, and as to Lots 8 and 9 on October 8, 1949. The amount of such assessments as to Lots 8 and 9 is $1133.24 with interest from July 26, 1949, and as to Lot 31, $309.00 with interest from July 26, 1949. After the confirmation of such liens the same were recorded and indexed in the trust deed book in the office of the Clerk of the County Court of Raleigh County.

Thereafter, certificates of assessment were issued evidencing the assessments against said lots in the names of J. H. Rucker and Jennie Williamson, such certificates being payable to the order of Vecellio and Grogan, the contractors, who assigned them to plaintiff, Investment Securities, Inc., for a valuable consideration. The certificate of assessment against Lot 31 was assigned on August 5, 1949, and as to Lots 8 and 9, the certificate was assigned on November 2, 1949.

It is further alleged that on the 28th day of March, 1950, the council of the City of Beckley passed a resolution reciting the issuance of the assessment certificates against Lots 8, 9, and 31; that the certificates issued in the names of J. H. Rucker and Jennie Williamson should be cancelled and surrendered; that new certificates be issued and delivered to the beneficiary of the certificates in place and stead of the original certificates so cancelled; that the re-issued certificates should be in the name of Theo Hatcher, the present owner of the three lots; and that the records in the office of the county clerk of Raleigh County should be corrected accordingly.

It is alleged by plaintiff that Theo Hatcher had no interest in the said lots at the time the original assessments were made; that the only person other than the State of West Virginia having an interest in said lots according to the records of the county clerk of Raleigh County were J. H. Rucker or his heirs as to Lots 8 and 9, and Jennie Williamson or her heirs as to Lot 31; that Rucker and Williamson, their heirs or assignees, were entitled to redeem the lots from sale by the State; and that these rights continued until the confirmation of the sales as decreed in the suits by the deputy commissioner of forfeited and delinquent lands. The paving had been completed, and the liens accruing from such paving had been recorded in the office of the county clerk of Raleigh County prior to the purchase of the land by Hatcher in December, 1949, and he purchased the lots with actual notice of the existence of the liens due the plaintiff as asserted in this suit.

The trial court of its own motion certified the following questions:

Was the equity arising from the lien claimed by the plaintiff extinguished by the sale made by the State of West Virginia to Theo Hatcher?

Is the reassessment made by the City Council of the City of Beckley dependent for its validity upon the existence of a valid lien, and if such lien has been extinguished by the sale of the property to Theo Hatcher, is the reassessment ineffectual?

The trial court held that the equity arising from the lien held by the City of Beckley had not been extinguished by the two suits instituted by the deputy commissioner of delinquent and forfeited lands of Raleigh County; that the reassessment made by the council of the City of Beckley was a proper exercise of power granted by the Legislature; and that the lien created by such reassessment was a valid and existing lien on the lots belonging to the defendant Hatcher.

The trial court also certified the following rulings which are subsidiary to the certified questions:

'1. * * * that is was within the power of the City of Beckley to levy against this property at the time when title thereto was vested in the State of West Virginia by virtue of a forfeiture for the nonpayment of taxes.

'2. That the City of Beckley was not a person who is entitled to redeem under provisions of Code 11-A-4-33 [sic], and that the City of Beckley was therefore by virtue of that section not deprived of any right or interest in the lot sought to be sold.

'3. That Investment Securities, Inc., the party in interest has the same rights as the City of Beckley in claiming a lien and has the same right to sell the lots described in the plaintiff's bill of complaint for the payment of the paving certificates.'

The procedure in the two suits brought by the commissioner of delinquent and forfeited lands is not questioned and the legality of the sales of the three lots in question, ordered and confirmed in those two suits, is not challenged, except as hereinabove stated. Nor were the proceedings by the common council of the City of Beckley relative to the paving of the streets and creation of the liens objected to or challenged, except that defendant Hatcher contends that the City of Beckley is devoid of lawful authority or power to sell lands to enforce the paving liens, because of statutory provisions relative to sale of lands for the benefit of the school fund and the decisions of this Court in applying and interpreting such statutes.

Under the provisions of Section 10, Chapter 89, Acts of the Legislature, 1949, the property abutting on a street which is improved by paving is subject to a lien from the date the ordinance laying the assessment is passed. In this case the ordinances were passed on July 26, 1949, and October 8, 1949. On those dates the lots were the property of the State of West Virginia, having become...