Heirs v. Jamerson

• Decision Date: 08 June 1911
• Citation: 71 S.E. 618,112 Va. 311
• Parties: COLES' HEIRS et al. v. JAMERSON.
• Court: Virginia Supreme Court

112 Va. 311

71 S.E. 618

COLES' HEIRS et al.

v.JAMERSON.

Supreme Court of Appeals of Virginia.

June 8, 1911.

1. Taxation (§ 734^*)—Tax Titles—Deeds-Statute.

The owner of land, who lived in another county, died, leaving a will devising it to be sold, and the will was not probated in the county where the land was located, so the records did not furnish the information contemplated by Code 1904, §§ 459, 460, and this information was not furnished by the parties in interest, as provided by section 463. The lands were assessed in the name of the owner, instead of to his estate, as required by section 474. Code 1904, § 473, declares that land correctly charged to one person shall not afterwards be charged to another, without evidence of record that such change is proper; and section 661 provides that the holder of a tax deed has the right or title, which was vested in the party assessed with the taxes, or in one claiming under him. Held, that a sale of these lands for delinquent taxes passed title, in spite of the noncompliance with section 474.

[Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 1470-1473; Dec. Dig. § 734.*]

2. Taxation (§ 412*) —Tax Titles —Tax Deeds—Assessment—Statute.

A noncompliance with Code 1904, § 464, requiring separate lists to be kept for white and colored taxpayers, being a statistical measure only, does not vitiate an assessment.

[Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 682-689; Dec. Dig. § 412.*]

3. Taxation (§ 761*) — Tax Titles — Tax Deeds—Advertisement.

A tax deed, which recited that the land was sold by the county treasurer, a public officer, after due advertisement, as required by law, is valid, though not reciting the fact of the adjournment of the sale.

[Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 1510-1513; Dec. Dig. § 761.*]

4. Taxation (§ 762*) — Tax Titles — Tax Deeds—Sufficiency.

Under Code 1904, §§ 642, 645, 662, respectively requiring that the treasurer report the sales to court, that such reports be confirmed, and that reports be made when real estate is bought in the name of the auditor, and section 655, requiring a tax deed to set out all the circumstances appearing in the clerk's office in relation to the deed, the treasurer's report of sale and the order of court confirming the sale are circumstances appearing in the clerk's office in relation to the sale.

[Ed. Note.—For other cases, see Taxation, Dec. Dig. § 762.*]

5. Executors and Administrators (§ 129*)— Real Property—Sale—Title to Statute.

Code 1904, § 2663, providing that if land be devised to be sold, and no one be appointed, the executor may sell it, and if he fail to qualify, or, having qualified, dies, an administrator with the will annexed may sell, gives the executor or administrator no title independent of the will.

[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 533-536; Dec. Dig. § 129.*]

6. Executors and Administrators (§ 129*)— Real Property—Sale—Wills—Title.

Where a will merely provided that land should be sold, and did not devise it to the executrix, she had only a power of sale, the heirs having the title; and hence an administrator appointed after her death, without the will annexed, had no title to support ejectment.

[Ed. Note.—For other cases, see Executors and Administrators, Dec. Dig. § 129.*]

7. Abatement and Revival (§ 28*)—Parties Plaintiff—Misjoinder—Statute.

In an action of ejectment, where an administrator who had no title to land was erroneously made a party plaintiff, the court should, under the direct provisions of Code 1904, § 3258a, order the action to abate as to the administrator, and proceed in the names of the other plaintiffs.

[Ed. Note.—For other cases, see Abatement and Revival, Cent. Dig. §§ 163-165; Dec. Dig. § 28.*]

Error to Circuit Court, Buckingham County. Ejectment by T. H. Dickinson, as administrator, and the heirs of J. M. Coles, deceased, against J. D. Jamerson. From a judgment for defendant, plaintiffs bring error. Reversed and remanded.

John M. Payne and Harrison & Long, for plaintiffs in error.

Hubard & Gayle and A. B. Dickinson, for defendant in error.

WHITTLE, J. This action of ejectment was brought by the plaintiffs in error against the defendant in error, John D. Jamerson, to recover 342 acres of land in Buckingham county, formerly the property of J. M. Coles, deceased, who was the ancestor of the plaintiffs (except T. H. Dickinson), and was bought by the defendant's assignor at a sale for delinquent taxes, and is held by the assignee under a tax deed from the clerk bearing date February 10, 1896. There was a verdict and judgment for the defendant, to which judgment this writ of error was awarded.

The specific grounds of attack upon the title of the defendant are as follows: (1) Because the land was assessed for taxation in the name of J. M. Coles for several years after his death and when returned delinquent, when it should have been charged to his estate; (2) because the land was registered on the land book in the white list, when it should have been registered in the colored list, Coles being a negro; (3) because the tax deed does not recite the adjournment of the sale; and (4) because the deed also fails to show that there was a report by the county treasurer of the sale and the confirmation of such report and sale by the court. We shall consider these several contentions in the order stated.

1. It is true section 474 of the Code of 1904 provides that when the owner of land dies, having, as in this instance, devised the same to he sold, "it shall continue charged to the decedent's estate until a transfer thereof." Coles was not a resident of Buckingham county, and his will was probated in Prince Edward county, so that the records of the former county did not supply the information contemplated by sections 459 and 460; nor was such information furnished by the parties in interest, as provided by section 463. It would be an unreasonable construction of section 474 to hold that a failureafter Coles' death to charge the land to his estate would invalidate the assessment.

Section 473 declares that land correctly charged to one person shall not be afterwards charged to another person without evidence of record that such charge is proper.

In construing section 13, c. 183, 2 Rev. Code 1819, which is similar to section 474, supra, in Usher's Heirs v. Pride, 15 Grat. 190, Allen, P., at page 200, observes: "I think, however, the entry in the name of the patentees (who had died) concludes the heirs and purchasers claiming under them, and they were forfeited for the delinquency in failing to pay the taxes charged thereon."

So, in Stevenson v. Henkel, 100 Va. 591, 42 S. E. 672, a mistake in the name of the owner, if not calculated to mislead, is immaterial.

Again, section 661 provides that "the right or title to such estate shall stand vested in the grantee in such deed as it was vested in the party assessed with the taxes or levies on account whereof the sale was made at the commencement of the year for which said taxes or levies were assessed, or in any person claiming under such party. * * *"

2. The requirement of section 464, with respect to separate lists for white and colored taxpayers, was intended as a basis for the apportionment of the school tax fund between the white and colored races in proportion to the amount of taxes contributed by them respectively. It was purely a statistical measure (which was never carried into effect), and its uonobservance could not affect the validity of the assessment.

3. The third assignment calls in question the validity of the tax deed because it does not recite the fact of the adjournment of the sale. The deed does state that the sale was made by the county treasurer at public auction at the front of the courthouse on February 10, 1896, "after due advertisement as required by law, " and that, we think, was a sufficient recital with respect to the fact of the sale. Flanagan v. Grimmet, 10 Grat. 421.

4. The last assignment involves the failure of the deed to recite that the county treasurer made a report of the sale, or that the sale was confirmed by the court, or that it was recorded as required by sections 642, 645, 662.

It is provided by section 655 that the tax deed "shall set forth all the circumstances appearing in the clerk's office in relation to the sale."

In 2 Minor on Real Property, § 1383, the "cir...