Hays v. Heirs.

• Decision Date: 04 November 1893
• Citation: 38 W.Va. 109
• Court: West Virginia Supreme Court
• Parties: Hays, Commissioner &c. v. Camden's Heirs et al.

38 W.Va. 109

Hays, Commissioner &c.v. Camden's Heirs et al.

Supreme Court of Appeals of West Virginia.

Submitted June 20, 1893.

Decided November 4, 1893.

For the foregoing reasons it becomes our imperative duty to reverse the judgment of the Circuit Court, quash the writ ofmandamus, and dismiss the petition, at the plaintiff's cost, Infants Guardian ad Litem.

A commissioner, of school-lands under chapter 105 of the Code (Ed. 1887) flleshis petition in the Circuit Court for the sale of certain lands as forfeited, and in pursuance of the statute mentions an infant as one of the claimants of said tracts of land, who appears by his guardian and next friend and excepts to the proceeding, on the ground among others that he should have had a guardian ad litem assigned to him. Held error to enter any decree thereafter in the suit affecting his interest without having first appointed a guardian ad litem to such infant.

Wm. E. Lively, for appellants. Holt, Judge:

This is a proceeding instituted in the Circuit Court of Grilmer county on the 1st day of May, 1890, under chapter 105 of the Code (Ed. 1887) by Samuel A. Hays, commissioner of school-lands of said county, against defendant, Flora Camden and others, to ascertain whether certain lands were forfeited for non-entry and, if forfeited, for the sale thereof. Such proceedings were had, that on the 5th day of February, 1891, the court pronounced a decree in the cause holding certain tracts therein specified to be forfeited to the State, and directing their sale; and from this decree defendants, Flora Camden and others, obtained this appeal.

The first statute on the subject authorizing and directing such proceeding on the part of the commissioner of schoollands is found in chapter 105 of Code of 1868, which took effect on the 1st day of April, 1869. The present constitution took effect from and after the 12th day of August, 1872. As touching this subject see article XIII, Const. By the act of 18th November, 1873, chapter 105 of the Code was amended and re-enacted.

In McClure v. Maitland, 24 W. Va. 561, it was held that proceedings under the act of 18th November, 1873 (chapter 134, Acts 1872-73) were not judicial proceedings in the sense, that they involved litigation between contesting parties, but were in their character administrative, being simply a mode prescribed by the State for the sale of lands, which are the absolute property of the State, and in the sale of which the State alone is interested; and that the former owner having no interest in the land or the proceeds of sale is not entitled to be a party to the proceedings for the sale in the Circuit Court.

This led to the amendment and re-enactment of the law by the statute as found in chapter 105 of the Code of 1887 (act of 25th March, 1882). By this act it is made the duty of such commissioner, to ascertain and report the status in reference to forfeiture of all lands in his county, and, in order to have the same determined judicially, it is made his duty to file his petition in the Circuit Court praying that the same may be sold for the benefit of the schoolfund, giving the court all the information he has as to location, quantity, probable value, etc., together with all the facts at his command in relation to the title, the claimant or claimants thereof and their residence, if known, or if not known, that fact should be stated, stating also when, how and in whose name, and for what it was forfeited to the State.

Upon the filing of the petition the court shall direct a summons to be issued by the clerk against the claimants, if any, named in the petition, the person or persons in whose name the same was forfeited, and all. unknown parties claiming the lands or any part thereof named in the petition, requiring them to appear before a commissioner in chancery of the court at a time and place to be named therein, and show cause, if any they can, why the said lands shall not be sold for the benefit of the school-fund. The summons shall be served on each of the persons named therein, if they can be found in the county, and as to such of them as can not be found in the county and such unknown parties it shall be published at least once a week for four successive weeks in some newspaper printed in the county, or if there be no such newspaper printed in the county, in some newspaper of general circulation therein, etc.; and such publication and posting, when so made or done, shall be equivalent to the personal service of the said summons on all the parties named therein, upon whom it has not been served personally, and on all the said unknown parties.

The said court shall also by a proper decree refer the said petition to a commisioner in chancery thereof with instructions to inquire into and report upon the matter therein contained, and such others as said court may think proper to direct, and particularly to inquire and report as to the amount of taxes and interest due and unpaid on each tract, etc. But said commisssioner shall not proceed under said decree, until the summons aforesaid shall have been served as required by the next preceding section, etc.; and as soon as his report is completed, he shall file the same in the clerk's office of the Circuit Court; and the commissioner of schoollauds and any other person interested therein may file exceptions thereto at any time after such filing in the clerk's office before the hearing therein.

If there be no exception to such report, or if there be exceptions thereto which are overruled, the court shall confrm the same, and decree sale of the lands or any part of them, therein mentioned, which are subject to sale for the benefit of the school-fund, upon such terms and conditions as to the court may seem right. When exceptions are filed to such report which are sustained in whole or in part, the same proceedings shall be had in the case as if it were a suit in chancery. The sale shall be made, conducted and reported, and such proceedings shall be had therein in all respects, as if such sale had been under a decree in a suit in chancery, etc.

Chapter 105 was again amended and re-enacted by the act of 12th of March, 1891 (see Acts 1891, p. 281, and chapter 105, Code, Ed. 1891) and this again was amended and re-enacted by act of23d February, 1893, (see Acts 1893 p. 57) which is the present law on the subject; but this proceeding was under chapter 105 in the Code of 1887.

The Circuit Court, by decree entered on the 9th day of June, 1890, referred these matters to Commissioner O. C. McQuain, requiring the summons to be issued and served in persuance of chapter 105 of the Code of 1887, the substance of which lias already been given. The summons was issued on the 1st day of July, 1890, requiring the parties therein named to appear before Commissioner McQuain at the law-office of Collins & McQuain, in the town of Glenville, on the 4th day of August, 1890. But it has on it no return of service of any kind or in any way. It does not appear to have gone into the hands of any one for service, or to have been published or posted.

But the commissioner published his notice of the time and place of executing the order of reference. Under this notice the commissioner completed his report, which was filed in the clerk's office on the 30th day of August, 1890. On this report G. D. Camden, Flora Camden and Sprigg D. Camden by their attorney indorsed various exceptions to said report on Sept. 1, 1890, with various papers exhibited as part of such exceptions. On the 3d day of October, 1890, these defendants by William E. Lively, Esq., their attorney, filed all these papers, naming them a petition to redeem, etc., all of which were ordered to be noted as filed, including said exceptions to Commissioner McQuain's report,

The said papers filed as above stated are as follows: "The defendants, G. D. Camden, Flora Camden, and Sprigg D. Camden, infant, by J. N. Camden, his guardian and next friend, appear to the petition filed against them Hays, Com'r v. Camden's Heirs. by the commissioner aforesaid, and the order of the court, requiring them to appear before a commissioner in chancery of said court, and except to the petition and report, to the order of the court, and all the proceedings had and taken in the above matter, as follows, co-wit:

Exception 1: As to the order of the court referring the matter to a commissioner in chancery, the report of S. A. Hays, commissioner of school-lands, should not have been referred to a commissioner in chancery, because it failed to show the local situation, quantity, probable value of each; tract, lot, or parcel, and part of a tract, of land therein mentioned, together with all the facts at his command in relation to the title to the same, and to each tract, lot, part or parcel thereof, the claimant or claimants thereof, and their residence, and stating, also, how and when and in whose name every such tract and parcel and part of a tract or lot was forfeited to the state.

Exception 2: No summons was ever issued by the clerk of the Circuit Court against the claimants of the lands named in the petition of the commissioner of school-lands to appear before the commissioner in chancery of the court at a place and time therein named, to show cause why the said lands should not be sold for the benefit of the schoolfund, notwithstanding the said parties named in the petition are residents of the state of W. Va., and reside in Clarksburg, Harrison county, and in Parkersburg, Wood, county, and well known to the commissioner of school lands.

Exception 3: No summons was served on each of the persons named therein, nor published at least once in each week for four successive weeks in some newspaper printed in the county of Gilmer, nor posted at the front door of the court-house of Gilmer county, nor at some public place in each magisterial district in said county, as required by the statute.

Exception 4: The lands of the parties named in the petition are not, and...