Coal & Coke Ry. Co. v. Marple
| Decision Date | 12 December 1911 |
| Parties | COAL & COKE RY. CO. v. MARPLE et al. |
| Court | West Virginia Supreme Court |
Submitted March 29, 1910.
Syllabus by the Court.
An agreement between two or more persons, not general partners who are competitive bidders at delinquent tax sales, that they will become partners in all lands that may be thereafter purchased by either of them, contravenes public policy, and will render void a tax deed acquired pursuant to such agreement.
Appeal from Circuit Court, Braxton County.
Action by the Coal & Coke Railway Company against John M. Marple and others. Decree for plaintiff, and defendants Marple and John I. Bender appeal. Affirmed.
Morrison & Rider, for appellants.
Haymond & Fox, for appellee.
WILLIAMS P.
Plaintiff brought its suit in equity against John M. Marple and John I Bender and others to cancel a tax deed for 66 1/2 acres of land, made by the clerk of the county court of Braxton county to said Marple and Bender, and obtained a decree in its favor, on the 12th day of December, 1907. From that decree Marple and Bender have appealed.
The land was owned by M. A. Stump, and on the 28th of December 1900, he and his wife conveyed it to Henry G. Davis. In September, 1901, said Davis and wife conveyed it to the Washington Coal & Coke Company, and it, in turn, conveyed it to plaintiff in February, 1904. The deed from Stump and wife to Henry G. Davis was not recorded until April 15, 1901, and hence too late to be transferred on the land book and charged with taxes in the name of said grantee. It was therefore properly returned delinquent in the name of said Stump for nonpayment of taxes for the year 1901.
The learned circuit judge who heard the cause prepared a very elaborate and able written opinion which, on motion of plaintiff, was made a part of the record. That opinion has been of much service to us in our effort to reach a just conclusion. Many facts were averred in the bill as constituting sufficient grounds for avoiding the tax deed. But it is necessary for us to consider only one of them because all the others relate to matters which this court has heretofore held, in similar cases, to be either unimportant, or to be such defects in the proceedings as are expressly cured by statute.
The ground on which the court set aside the tax deed is that an agreement had been entered into between said Marple and Bender, in 1902 or 1903, to become partners in all lands that might thereafter be sold for taxes and purchased by either of them at tax sales. This, we think, was sufficient ground to avoid the deed. Marple and Bender filed their joint answer, in which they aver: "That said tract of land was purchased at said tax sale by them at a risk; that they, nor neither of them, knew whether or not there was any land there; that said land was simply purchased by them because it was cheap; that they did not know of said tract of land when they attended said tax sale, nor did they know said tract of land belonged to plaintiff." They deny, however, that there was any arrangement or agreement between them before said sale, or at the sale, or at any other time, "as to this tract of land." Defendants do not deny that there was a partnership agreement, previously made, which related to and embraced all lands that either of them might thereafter purchase at a tax sale. Their qualified denial is a virtual admission that such partnership existed, which embraced any and all lands that either of them might thereafter purchase. Moreover, Marple testified as follows: The land in question was sold in January, 1904, after the partnership arrangement was made, and the whole tract was purchased by Marple at the price of $5.54. The testimony above quoted proves that the agreement to become partners was made to prevent competitive bidding, at tax sales, between Marple and Bender. They had been competing bidders, and, in order to prevent competition between themselves, they agreed to become partners. The partnership embraced a matter concerning which the two parties had theretofore been competitors-- nothing else. The real purpose was to prevent competition. Such a partnership would not be created between noncompetitors, and, when entered into by competing bidders, it is equivalent, in law, to an agreement not to compete with each other, which is against public policy.
The collection of taxes by the sale of land, simply upon notice posted and published in a newspaper, without judicial process, is purely a statutory proceeding, and is a very drastic remedy. The constitutionality of such proceeding was for a long time, seriously doubted by many men learned in the law, and, while the question may now be regarded as fairly well settled in favor of the state's right to collect its revenue by that method, still it has always been the uniform policy of the law to protect the rights of the delinquent landowner with every reasonable safeguard, consistent with the right of the state to collect its revenues without unreasonable delay. One of these safeguards is the statutory provision that no more of the delinquent owner's land shall be sold for the taxes due thereon than is necessary. Another is that the sale shall be at public auction, at a certain place, and on certain days, and after due publication in a manner particularly set out in the statute. Still another safeguard is the one embedded in the general policy of the law, which is that the bidding shall not be stifled, or competition discouraged. It cannot be said that a delinquent taxpayer deserves no consideration at the hands of the state because he has failed to perform one of the most important duties which she has enjoined upon him. The statute is not penal, but...
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