Evans v. Hale
| Decision Date | 23 November 1948 |
| Docket Number | (No. 10042) |
| Citation | 131 W.Va. 808 |
| Parties | George R. Evans v. Elbert O. Hale, Commissioner, etc., et al. |
| Court | West Virginia Supreme Court |
1. Pleading
An order of publication, which is issued upon an insufficient affidavit and which omits facts required by statute to be set out in such order, is void and does not bring a defendant against whom it is issued within the jurisdiction of the court as a party to a judicial proceeding which, as to him, is based upon such order of publication.
2. Pleading
Judicial proceedings, based upon a void order of publication against a defendant who is not served with valid process and who makes no appearance in a suit in which the proceedings are had, and which proceedings include a judicial sale of land, are void as to such defendant and are subject to collateral attack.
3. Equity
In a suit instituted by a person whose title is adversely affected by a void judicial sale and deeds for land made under it, equity has jurisdiction to remove a cloud upon the title to the land by vacating such sale and such deeds.
Appeal to Circuit Court, Mercer County.
Suit in equity by George R. Evans against Elbert O. Hale, Commissioner of School Lands of Mercer County, and others to set aside deeds of realty sold by named defendant for nonpayment of taxes. From a decree of dismissal, plaintiff appeals.
Reversed and remanded.
Martin & Martin, for appellant.
H. E. DeJarnette, for appellees.
In April, 1946, the plaintiff George R. Evans instituted this suit in the Circuit Court of Mercer County against the defendants Elbert O. Hale, Commissioner of School Lands of that county, M. A. Ailiff, John H. Whittaker, Viola Whittaker, Jodie Whittaker, Virginia Whittaker and B. H. Reed, Jr. In his bill of complaint the plaintiff asserts that all proceedings for the sale of real estate which he claims to own, and the sale of the property, made by Hale as Commissioner of School Lands, in a suit instituted in 1931 in the Circuit Court of Mercer County to sell lands in that county for the nonpayment of taxes, are void as to the plaintiff; that a deed for the real estate made by the Commissioner and the purchaser, M. A. Ailiff, to John H. Whittaker, the nominee of the purchaser, and subsequent deeds made by John H. Whittaker and Viola Whittaker, his wife, to Jodie Whittaker, their son, and by Jodie Whittaker and Virginia Whittaker, his wife, to B. H. Reed, Jr., who now claims title to the land, are also void; and that the deeds should be set aside and canceled as a cloud upon the title of the plaintiff.
All the defendants, other than M. A. Ailiff who died prior to the institution of this suit, were duly served with process but none of them, except the defendant B. H. Reed, Jr., appeared or answered the bill of complaint which, as to the defendants who were served and did not appear, was taken for confessed.
The case was heard upon the bill of complaint and its exhibits, the answer of the defendant B. H. Reed, Jr., and its exhibits, and a statement of facts agreed to by the plaintiff and the answering defendant. Upon the hearing on the merits the circuit court denied the relief prayed for by the plaintiff and, by final decree entered June 11, 1947, dismissed the suit and awarded costs against him. From that decree this appeal was granted by this Court upon the petition of the plaintiff.
The material facts which, as already indicated, are embraced in a written stipulation between the plaintiff and the defendant B. H. Reed, Jr., are not in dispute and the only questions involved are questions of law.
In October, 1922, while a resident of McDowell County, West Virginia, the plaintiff purchased the land in ques- tion, which consists of two unimproved lots designated as 12 and 14, in Section 1120 of lots of the South Bluefield Land Company in Mercer County, West Virginia, from Bose G. King and wife who by deed dated October 30, 1922, conveyed the property to the plaintiff. The deed was properly recorded on November 2, 1922, and the lots were assessed for taxation in the name of the plaintiff for the years 1923 to 1938.
In 1926 the plaintiff removed from McDowell County to the City of Knoxville, Tennessee, where he continued to reside until he returned to McDowell County in 1933. During his absence as a nonresident of this State, his land became delinquent for the nonpayment of taxes assessed against it for the years 1928, 1929, 1930 and 1931, the amount of the unpaid taxes being $53.75. After his return to McDowell County in 1933, the plaintiff undertook to redeem the land and paid some of the delinquent taxes to the Auditor. He also paid the taxes assessed to and including the year 1938. For the years 1939 to 1943, the land was assessed in the name of the defendant John H. Whittaker and for the years 1944 to 1946 in the name of the defendant B. H. Reed, Jr. The plaintiff has paid no taxes which have become due and payable after 1938, but he offers to refund the amount of the taxes which have accrued since that year to such defendants as have paid them.
In 1931, while the plaintiff was a resident of the State of Tennessee, the defendant Hale, Commissioner of School Lands in Mercer County, caused the institution of a suit in the circuit court to sell lands in that county for the benefit of the school fund. The style of that case, which is still pending, is State of West Virginia against Ashworth and others, and the plaintiff was proceeded against as a defendant in the suit. Upon an affidavit executed by Hale and filed in the case an order of publication was issued and published against Evans who was designated as one of the defendants. The affidavit for the order of publication stated that process for certain named defendants, including Evans, had twice been delivered to the Sheriff of Mercer County, in which county they resided, more than ten days before the return day and had been returned by the sheriff without having been executed. Though Evans had at no time been, in fact, a resident of Mercer County, he was proceeded against in the order of publication as a resident of that county and not as a nonresident of West Virginia and the order of publication did not set out the number of tracts of land to be sold in which he was interested as owner or claimant or a general description of the location and the quantity of each as required with respect to a nonresident by the applicable statute then in force. Code, 1931, 37-3-18.
Evans was not personally served with process and he made no appearance in the suit. He did not know of the proceedings in the case or that his lots had been sold by the Commissioner and conveyed by him and the purchaser to John H. Whittaker or of the deeds from Whittaker and wife to Jodie Whittaker and from Jodie Whittaker and wife to Reed until after the deeds had been recorded. The deed from Hale, Commissioner, to John H. Whittaker in which Ailiff the purchaser at the sale joined, was dated November 7, 1932, but it was not admitted to record until February 28, 1938. The deed from John H. Whittaker and wife to Jodie Whittaker was dated July 8, 1941, and the deed from Jodie Whittaker and wife to Reed was dated July 3, 1943. These two deeds were recorded together sometime after the date of the second deed. After 1940 Evans received no tax statements. In seeking the reason he consulted an attorney who investigated the situation and from him learned of the sale of the lots by the Commissioner of School Lands, the proceedings in the suit to sell the land, and the deeds under which the defendant Reed claims title. He then instituted this suit.
The plaintiff asserts that the order of publication in the delinquent land suit by which he was proceeded against as a resident of Mercer County was fatally defective; that all proceedings in that case, including the sale, were void as to him; that the sale and the conveyances of his two lots did not operate to pass title to the defend- ant Reed; and that the plaintiff is entitled to have the deeds set aside as a cloud upon his title.
The defendant Reed, who alone appears and contests the claim of the plaintiff in this suit, rests his defense on the ground that all the proceedings in the first suit were regular on the face of the record and that they are valid and binding upon the plaintiff as a defendant in that suit.
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