Collins v. Reger et al.
| Decision Date | 22 May 1907 |
| Citation | 62 W.Va. 195 |
| Parties | Collins v. Reger et al. |
| Court | West Virginia Supreme Court |
1. Taxation Tax Sales Curative Acts.
The curative provision of section 25, chapter 31, Code, relating to errors aud irregularities in tax proceedings, apply as well where the state as where an individual is the purchaser at a sale for delinquent taxes. State v. McEldowney, 54 W. Va. 695, approved. (p. 198.)
2. Same Assessment Error in Name.
Assessment and sale for taxes in the name of Martha Hedrick of land belonging to Martha Helmick, or in some name calculated to mislead or deceive such true owner, are void if without her knowledge or consent; the rule of idem sonans being inapplicable to assessment rolls or to delinquent and sales returns. (p. 198.)
3. Same.
In this state taxes are a charge against the owner as well as the property assessed; and the policy of our law and judicial decisions, in reference to delinquency and sale therefor, is to protect the owner against all such errors and irregularities on the face of the tax proceedings as materially prejudice and mislead him in reference to the real estate returned delinquent and sold for taxes. (p. 198.)
4. Same Proceedings by Commissioner of School Lands Title Acquired.
Proceedings by the commissioner of school lands under chapter 105 of the Code are incompetent to reach back and perfect a void title acquired by the state under former tax proceedings, so as to divest the title of the true owner not a party to the suit; and the proceedings and deed of the commissioner of school lands pass to a purchaser only such title as the state originally acquired and still held at the time of the latter sale; the statute giving a remedy not being Intended to create any new right or title in the state. (p. 201.)
5. Same Quieting Title Void Tax Deed.
Equity has jurisdiction at the suit of the owner to set aside, as a cloud upon his title, a void tax deed. (p. 202.)
6. Same Tax Deed. Setting Aside
Where land has been illegally assessed and sold for taxes, a void deed to the purchaser will be set aside only on condition of repayment of the purchase money with interest and costs. (p. 205.)
Appeal from Circuit Court, Randolph County.
Bill by Rachel Collins against She!ton L. Reger and others. From the decree, plaintiff and Martha Helmick appeal.
R eversed. Remanded,
Cunningham & Stallings, for appellants.
W. B. Maxwell, for appellees.
August 17, 1893, by deed recorded March 26, 1895, Arch Bonner, Sr., conveyed to Martha Helmick 50 acres of land in Dry Fork District of Randolph county, which she afterwards conveyed to John C. Clayton, who conveyed the same to the plaintiff Collins. The dates of the deeds to Clayton and Collins are left blank in the bill, and the certified copies purported to be made exhibits therewith are not found in the record. In 1895 50 acres similarly located and described was assessed in the name of Martha Hedrick, was returned delinquent for the taxes of that year in her name, and was in 1897 sold by the sheriff and purchased by the state. There being no redemption, the commissioner of school lands subsequently proceeded against this and other tracts; and at a sale thereof by him December 10, 1900, Shelton L. Reger became the purchaser, to whom a deed was made therefor by the commissioner three clays later. By deed of November 25, 1901, Reger conveyed a two-thirds interest in the property to H. R. Wrarfielel and Davis Elkins.
In one paragraph the bill alleges that this land was assessed in the name of Martha Helmick for 1896; in another, that the plaintiff herself was so assessed. In her answer Martha Helmick alleges that she regularly paid the taxes on this land from the time it was placed on the land books in 1896 until she conveyed it to Clayton. In the answer of the defendants Reger and others they say the land was charged in 1895 to Martha Hedrick but was changed in 1896 to Martha Helmick, in whose name they say it still remains and all taxes paid thereon, except for the year 1895, for which year the land was charged to no one except Martha Hedrick. As the only year involved here is 1895, it is immaterial how the land was assessed or in whose name delinquent for any other year. It is suggested that this tract, having remained assessed to Bonner for 1894 and not being assessed to Martha Helmick or her successors until 1896, must be treated as having remained on the land books in the name of Bonner and the taxes paid by him for 1895.
At January rules, 1905, Rachel Collins hied her bill against Reger, Warfield, Elkins, Clayton and Helmick, to set aside the tax deeds. She alleges payment of taxes since 1896, and possession since 1893 by herself and grantors; sets forth the above delinquency and tax purchases and Reger's conveyance, and that there are two Arch Bonners dealing in real estate and a Martha Hedrick in said district; charges irregu larity in the commissioner's proceeding; denies validity of the title of the state and Reger; offers tender, if the relief asked for be granted, of taxes, costs and interest, subject to the order of the court; and prays cancellation of the various conveyances in and subsequent to the tax proceedings, as a cloud upon her title. By amended bill filed September rules, 1905, the plaintiff charges non-assessment of her land for 1895, wherefore no delinquency could accrue. In the answers filed, Helmick adopted all material allegations of the bill; and Reger, Warfield and Elkins alleged regularity in the tax proceedings. No evidence being taken, the bill was upon final hearing on the pleadings and previous decrees dismissed, and the plaintiff and Martha Helmick appeal.
Relying on the case of McGhee y. Sampselle, 47 W. Va. 352, the appellants assert that, conceding the errors and irregularities in the delinquent return and in the return of the sale of the land by the sheriff rendered the sale and purchase by the state voidable if not absolutely void, the curative provisions of section 25, chapter 31 of the Code, do not aPPly As that case was overruled in State v. MeEldownery, 54 W. Va. 695, wherein it is held that the curative provisions of said section do apply to purchases by the state and proper construction is given to section 32 of the same chapter, no further consideration need be given that point.
It is claimed by the plaintiff that the assessment for the year 1895 in the name of Martha Hedrick was not a legal and valid assessment of her land; that the sale by the sheriff and purchase by the state in the name of Martha Hedrick, and the subsequent sale and deed of the school commissioner, conferred no title upon the purchaser. The question for our consideration therefore is: Was the assessment for 1895 in the name of Martha Hedrick a valid and legal assessment of plaintiff's land? Whatever may be said of the laws of other states, the policy of our assessment laws and of the decisions of this state and Virginia has been to make taxes a charge against the owner as well as the property assessed. The duty is imposed upon assessors to ascertain the name of the owner, and upon the clerk of the county court and other officers to furnish the assessor the necessary information in regard to change of ownership, so that proper assessment in the name of the true owner may be secured. Chapter 30 of the Code gives right of distraint for the taxes assessed against the goods and chattels of the owner, and gives to a tenant from whom payment of taxes due from the owner is obtained by distraint or otherwise credit therefor out of rents due. In the provision for the return of lands delinquent for taxes the name of the owner is emphasized; and the list is required to be verified, published and posted, so that the owner may be given the correct information as to whether his lands are delinquent. By section 24 of that chapter a penalty is imposed upon a collecting officer who shall return in the list of uncollected taxes real estate, persons or property as delinquent when he had found or might have found by reasonable diligence sufficient property within his county liable to distress for the taxes for which such real estate, persons or property are returned delinquent. Ry chapter 31, relating to the sale of real estate returned delinquent for taxes, various provisions are made for the protection of the owner; and in former years, as the decisions of this state and Virginia will attest, strict compliance with the statute was required before the owner would be deprived or divested of his title. While it is true that the policy of the law in regard to irregularities in the proceedings lias been very much modified, and the curative provisions of section 25 of chapter 31 of the Code have been repeatedly extended so as to cure defects in tax titles, particularly after deeds made, yet the present provisions of that section has still kept in view the rights of the former owner, and furnishes him protection; and he is not thereby concluded by any irregularity appearing on the face of the proceedings, if such as to materially prejudice and mislead the owner of the real estate so sold as to what portion of his real estate was sold and when and for what years sold and the name of the purchaser thereof.
The name of the former owner is one of the most important requirements of all these tax proceedings. Nothing could be more calculated to mislead and prejudice the owner than to omit his name from the assessment roll or the delinquent or sales return. This fact has long been regarded in Virginia and this state; and if lands were assessed in the wrong name, or in some name calculated to mislead or deceive the true owner, such assessment and sale has been held void and of no effect as against the title of the true owner. Nolle v. Fenwich, 4 Rand. 593; Yance v. Hopkins, 1 Munf. 419, Va. Rep. Anno., and cases cited; Cunningham v. Brown, 39 W. Va. 588; State v. Tavenner, 49 W. Va. 697; Stevenson v. Henkle, (...
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