FoRQUERAN v. DoXNAELY.

• Decision Date: 28 February 1874
• Citation: 7 W.Va. 114
• Court: West Virginia Supreme Court
• Parties: FoRQUERAN v. DoXNAELY.

7 W.Va. 114

FoRQUERAN

v.DoXNAELY.

Supreme Court of Appeals of West Virginia.

February 28, 1874.

1. Where a chancery suit is hoard on bill and answer, and there is no l« replication to the answer, and the defendant has not taken depositions as if there was a replication, the answer will be taken as true, so far as it is material and relevant.

2. A purchaser of a part of a tract of land at a sheriff's delinquent lax sale, made in the year I860, by the purchase, payment of the purchase money and delivery to him of the sheriff's receipt therefor, acquired the right, if the land was not redeemed in the manner prescribed by the loth section of chapter 37 of the Code of Virginia, within two years from the sale, to obtain a deed in the mode and manner prescribed by the loth and 17th sections of said chapter, without the privilege to the former owner to redeem until after the expiration of the one year from the expiration of the two years, without the deed having been made to the purchaser.

3. The right, so acquired, grew directly out of the contract of sale made in pursuance of the law under which it was made. The contract was a civil contract. This right is an equitable right, or interest, entitled, on the failure to redeem, to ripen into a full legal title.

4. That such parts of chapter 37 of the Code of Virginia as were material and substantial parts of the contract of sale of a tract of land for taxes, sold by the sheriff, thereunder, in 18@0, should be held to remain and continue in force, as to such contracts, in connection with the act of the Legislature entitled "An act providing how lands heretofore or hereafter sold, and not redeemed, shall be surveyed and conveyed," passed on the 7th day of October^ 1863, notwithstanding the provisions of the 32d section of the act of the Legislature passed on the 27th day of February, 1866, entitled "An act to provide for the sale of real estate returned delinquent for the non-payment of taxes."

5. The said act of 1863 was not repealed by the said act of 1866 or by any section of said act.

6. Several statutes, inpari materia, and relating to the same subject, are to be taken together and compared in the construction of them, because they are considered as having one object in view and as acting on one system. And the rule applies though some of the statutes may have expired, or are not referred to in the other acts.

7. Statutes are not considered to be repealed by implication, unless the repugnance between the new provision and a former statute be plain and unavoidable.

8. A construction which repeals former statutes or laws, by implication, and divests long approved remedies is not favored by the courts.

9. Courts will not readily intend, where the Legislature enacts a general law upon a given subject and repeals an existing general law of like character, upon the same subject, that it was the intention of the Legislature, by the repeal, to deprive those who ac? quired just rights or interests, under the old law, of all remedy, or to extinguish their rights or interests unless such intention is manifest. But courts may properly, in such case, rather than the parties should be left without remedy, intend that the proceeding, or remedy, provided by the new law, as far as practicable, was intended by the Legislature to be applied to rights and interests acquired under the old law.

10. Where less than the whole tract of land was sold by the sheriff for delinquent taxes, in the year 1860, and a deed was made by the Recorder of the county in which such sale was had, under the said act of 1863, and proceedings had according to its provisions, after the passage of the said act of 1866, and no survey and plat of survey was made and returned, as required by said act of 1863, prior to the execution of such deed, and reference to such survey and plat is not made in the deed as having been made and re turned such deed, for this cause, does not pass the title of the former owner, and is void.

11. The equitable right, or interest, of the purchaser, in such case, where he paid the purchase money and received the sheriff's receipt, was secured by the first section of the 9th article of the Constitution of 1863.

12. While the deed aforesaid was, and is, not valid to pass title still the equitable title or interest in the land, subject to the right of redemption, did not become extinguished by the deed being invalid, but was in existence at the adoption of the Code of 1868; and when it took effect it was competent for the Legislature topass laws by which the purchaser could obtain a sufficient deed for the land purchased by him at the said tax sale. And the 24th section of chapter 31 of the Code of 1868 does provide such remedy; but the deed under that section must have been made within two years from the passage of said Code, where the saleoccurred more than five years before the passage of the Code; and the owners, their heirs and assigns, had the right to redeem at any time before such deed was made. If the purchaser, or his heirs or assigns, cannot show that he or they, properly procured a proper and sufficient deed for the land purchased at said tax sale, within two years from the 29th day of December, 1868, thedate of the passage of said Code, then it must be considered and held, that the equitable right or interest of the purchaser, acquired by his said purchase, has been extinguished.

18. The 40th section of the 31st chapter of the Code docs not cure or validate, the deficiency or defect in the said deed, made by the Recorder, the decree in the suit being made on the 18th day of April, 1869, only a few days after the Code took effect, and perhaps would not cure or validate the defect under any other circumstances.

This was an appeal by Matthew P. Wyatt and Jacob M. Kelly, from a decree rendered by the circuit court of Kanawha county, on the 16th day of April, 1869, in a suit in chancery therein pending, wherein William A. Forqueran was complainant and the said Matthew P. Wyatt and Jacob M. Kelly and Chailes P. Brown and Sarah A., his wife, Sally W. Craig, John Tyler and Martha Jane, his wife, John W. Morrison and Mary E., his wife, John D. Forqueran, Mary Rust, Susan Forqueran, Andrew F. Donnally, William Donnally, Lewis F. Donnally and John B. Crawford were respon- dents. The decree below was pronounced by the Hon. Robert S. Brown, judge of the tenth judicial circuit, under the judicial division of the State, as provided by the act passed July 17, 1868.

The facts in the suit, and the statutes and constitutional provisions, the construction of which are involved in the opinion of the court, are sufficiently set forth therein.

Miller & Quarrier andJoAn L. Cole for the appellants. Smith & Knight and William H. Hogeman for the appellees.

Haymond, President:

The defendants Wyatt and Kelly in their answer simply say that they "claim" one hundred and ten acres of the land in the bill mentioned, as will appear by their deed from the Recorder of Kanawha county, therewith filed marked " IP." The cause was heard upon this answer without any replication thereto. The defendants took no depositions, but they filed with their answer an official copy of the deed therein referred to; and also filed copies of certain papers and proceedings in the deed mentioned. The circuit court of Kanawha county on the sixteenth day of April, 1869, rendered the decree appealed from; and in the decree, among other things, it is recited, that the cause was heard upon their answer. In the decree the court declares that "the deed made on the fourth day of April, 1866, from the Recorder of Kanawha county to the defendants Matthew P. Wyatt and Jacob M. Kelly, is void and of no effect, as in the opinion of the court at the date of said deed there was no law in force authorizing such deed to be made for lands sold for taxes prior to 1865." The deed here referred to is the same mentioned in the answer of Wyatt and Kelly. The court upon declaring the deed void provided in the same decree for partition of the land in the bill mentioned, between the other parties, excluding Wyatt and Kelly therefrom. Generally where a cause is heard on bill and answer and there is no replication to the answer, the answer will be taken as true, as to the matters of "fact material, responsive and relevant therein stated, where depositions have not been taken by defendants therein. But in this case I think it clear that Wyatt and Kelly, by their answer, in effect, only submitted to the court a simple claim based upon the deed therewith filed exclusively, subject to the opinion of the court as to the validity and effect of the deed, taking the facts and statements therein as true. This seems to have been the view of the court below as to the effect of the answer. It appears that Andrew F. Donnally and William For-queran, in 1833, became the joint owners, in fee simple of a tract of land containing three hundred acres, more or less, in KanawTha county that Andrew Donnally, in his lifetime, conveyed his moiety of the land to his three sons A. F., William and Lewis F. Donnally that Lewis F. Donnally afterwards conveyed his interest, acquired from his father, to said A. F., and William Donnally that William Donnally died intestate and without having conveyed his moiety of the land; and the plaintiff and others are his legal heirs. This suit was brought to have partition of said tract of land between the plaintiff and others who were thereto entitled, and Wyatt and Kelly were made defendants by an amended bill in which it is alleged that they, asserted some claim to the land, the nature of which was unknown to the plaintiff. The only question presented for the determination of this court is, what right, if any, Wyatt and Kelly, or either of them have in and to the land in the bill mentioned, or any part thereof under and by virtue, of the deed for the one hundred and ten acres filed with their answer, and under the laws passed by the Legislatures...