City Of Norfolk v. Stephenson

• Decision Date: 10 June 1946
• Citation: 185 Va. 305,38 S.E.2d 570
• Parties: CITY OF NORFOLK. v. STEPHENSON et al.
• Court: Virginia Supreme Court

185 Va. 305

38 S.E.2d 570

CITY OF NORFOLK.

v.STEPHENSON et al.

Supreme Court of Appeals of Virginia.

June 10, 1946.

Appeal from Circuit Court of City of Norfolk; Clyde H. Jacob, Judge.

Suit between the City of Norfolk, etc., and Percy S. Stephenson and others, to determine whether taxes reported delinquent from January 1, 1932, on five lots lying in the city of Norfolk constituted a cloud on the title to such lots. From the decree, the City of Norfolk, etc., appeals.

Reversed and remanded with directions.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Jonathan W. Old, Jr., Donald W. Shriver, and M. T. Bohannon, all of Norfolk, for appellant.

Willcox, Cooke & Willcox, of Norfolk, for appellees.

HUDGINS, Justice.

The city of Norfolk obtained this appeal from a decree declaring that the taxes reported delinquent from January 1, 1932, to date, on five lots lying in the city of Norfolk, constituted a cloud on complainant's title.

The conceded facts are that Thomas H. Willcox, Sr., by deed duly recorded in 1927, conveyed a one-half undivided interest in the lots to Percy S. Stephenson, A. Brooke Taylor, A. Gordon Stephenson and H. B. Goodridge. By the will of Thomas H. Willcox, Sr., duly probated in 1926, the other one-half interest was devised to Mary W. Carter, Thomas H. Willcox, Jr., Claiborne Willcox, C. Ambler Willcox, Edward R. Willcox and Charles S. Willcox. By deed recorded in 1935, Charles S. Willcox conveyed his interest to Virginia C. Willcox. By deed recorded in 1939, H. B. Goodridge conveyed his interest to Percy S. Stephenson, A. Brooke Taylor and A. Gordon Stephenson. By deed recorded in 1941, C. Ambler Willcox conveyed his interest to Mary W. Carter. By will probated in 1943 the interest of A. Gordon Stephenson passed to Elizabeth M. Stephenson.

For the years 1928 to 1939, inclusive, the lots were assessed in the name of "Percy S. Stephenson, et als." Taxes were paid on the lots so assessed for the years 1928 to 1931 and are delinquent and unpaid in the name of Percy S. Stephenson, et als., for the years 1932 to 1939, inclusive. For the years 1940 to 1943 the same lots were assessed for taxation in the name of "A. Gordon Stephenson, et als., " and are delinquent and unpaid. For the years 1944 to 1945, inclusive, the lots were assessed in the name of "Elizabeth M. Stephenson, et als., " and are delinquent and unpaid.

Appellant's first contention is that, the facts are distinguishable from the facts in Albemarle County v. Massey, 183 Va. 310, 32 S.E.2d 228, and therefore the decision of that case is not controlling.

The facts in the Massey case were that a tract of land owned by four parties was assessed in the name of one of the four joint owners, and after his death it was assessed in the name of decedent's estate. In the case under consideration, the property was assessed in the name of one of the joint owners "et als." Without enlarging upon the reasons assigned in the Massey case, it is sufficient to say that, prior to the 1945 amendment to section 251 of the Tax Code, the addition of the words, "et als., " to the name of one of the joint owners was not a sufficiently accurate statement of the ownership of the land to constitute a valid assessment. 51 Am.Jur. 644; Annotation 50 L.R.A., N.S., 404.

Appellant's second contention is that, even if the assessment is invalid as to the unnamed co-tenants, it is valid as to the interest of the tenants named; that is, that the assessment is valid as to the undivided interest of Percy S. Stephenson, A. Gordon Stephenson and Elizabeth M. Stephenson for the respective years in which the same was assessed in their names.

The provisions of the Tax Code require that every tract or lot shall be assessed as a whole. There is no provision authorizing an assessment on an undivided interest in any tract or lot. Section 252of the Tax Code, Code 1942 Appendix, § 252, requires the Commissioner of Revenue to ascertain "all the real estate in his county or city, as the case may be, and the person to whom the same is chargeable with taxes on that day." Sections 253 and 254 require the Commissioner of Revenue to assess each lot as a whole in the name of the person or persons owning the same. Section 273 requires the Commissioner of Revenue to list the lots in the name or names of the grantee or grantees appearing in every deed admitted to record.

One of the fundamental elements in a legal assessment of taxes is that the taxable property must be properly and accurately listed for taxation in books kept for the purpose and open to the public in such manner as to inform persons interested of the property to be taxed, its owner and the amount of the tax. Minor on Real Property, 2d ed., sec. 1262.

To this may be added the right of the owner to go to the proper authorities, pay the amount of taxes assessed against him and obtain a release of the tax lien.

The authorities are divided on the question of whether the assessment of land, owned jointly by two or more, in the name of one is valid as to that one's interest in the land. The determination of the question depends entirely upon the language used in the different pertinent statutes. Annotation 50 L.R.A., N.S., 404; Annotation 80 A.L.R 862; 51 Am.Jur. 644. If the statute is clear in other respects and permits the joint owner to pay his part of the tax and have his interest in the land exonerated, then the assessment is held to be valid. Appellant concedes in its reply brief that "There is no provision of law in Virginia whereby joint owners of real estate can be separately assessed with their respective undivided interests. Furthermore, there is no provision of law in Virginia authorizing any City Treasur er, in the case of real estate jointly owned, to accept a part of the taxes for any year from any joint owner and thereby relieve the interest of such joint owner from the lien of such taxes. The assessment and collection of taxes are controlled by law and not by agreement between the taxing authority and the taxpayer, * * *."

The plight of a taxpayer, if this contention of the city were upheld, is exemplified by the action of some of the parties in this case. After the entry of the decree declaring that the entire tax for the period named was illegally assessed, Mary W. Carter, Thomas H. Willcox, Gaiborne Willcox, Edward R. Willcox and Virginia Willcox filed a petition in the cause stating that they did not wish to take advantage of the decree and that they desired the lien of the taxes involved to remain effective as to their one-half undivided interest in the lots. The decree was so modified and the cause was dismissed as to the named parties. Notwithstanding this fact, the city treasurer would not accept payment of half of the amount of the taxes and release the one-half undivided interest in the property from the total tax lien claimed by the city. If the assessment created a lien upon an undivided interest, then the owner of the undivided interest should have a right, upon the payment of his proper share of the tax, to obtain a release. The city concedes that a joint owner has no such right under the present law. It would be unjust to the taxpayer to hold that there is a lien upon his undivided interest in the property and still deny him the right to have his interest in the property discharged by the payment of his pro rata share of the taxes.

The third and final contention of appellant is that the act of the General Assembly, adding subsection a to section 251 of the Tax Code, ^* is applicable.

The decree from which this appeal was allowed was entered on April 26, 1945, and the act in question became effective on August 15, 1945, 111 days after the final decree.

The precise question presented is whether the law in effect at the time of the rendition of the decree or the law in effect at the time of the decision of the appellate court applies.

There is a sharp conflict of the decisions as to the power of a Legislature to enact a curative statute which applies to a controversy in which a final judgment has been entered by a court of competent jurisdiction. The majority view seems to be that the Legislature has power to enact curative statutes applicable to such controversies, though the statute renders ineffective a final judgment of the court. 25 A.L.R. 1136. In the annotations, cases from 14 States and decisions of the Supreme Court of the United States are cited to support this view.

The minority view is that the Legislature has no power to enact a curative statute which applies to a controversy in which a final judgment has been rendered by a court of competent jurisdiction and which impairs or renders ineffective that judgment. The annotations in 25 A.L.R. 1137 cite cases from 5 States, including Virginia, to support this view. See 51 Am. Jur. 679. Perhaps the leading case on the subject in Virginia is Martin v. South Salem Land Co, 94 Va. 28, 36, 26 S.E. 591, 592. In that case, Judge Buchanan, speaking for the court, said:

"The legislature, within certain limitations, may alter and control remedies by which litigants assert their rights in the courts; but, when the litigation has proceeded to judgment or decree upon the merits of the controversy, it has passed beyond its power.

"It has been uniformly held that the legislature has no power to grant a new trial or to direct a rehearing in a cause which has once been judicially settled, and that every such attempt is plainly an invasion of judicial power, and is therefore unconstitutional and void.

"Immediately upon the rendition of a judgment or decree for money, there arises a contract against the party adjudged to pay in favor of him for whose benefit it is awarded, which the legislature has no power to impair. 'Where, ' says Blackstone, 'any specific sum is adjudged to be due from the defendant to the plaintiff in an action or suit at law, this is a contract of the highest nature, being established by the sentence of a...