Hogan v. Piggott
| Citation | 56 S.E. 189,60 W.Va. 541 |
| Parties | HOGAN v. PIGGOTT et al. |
| Decision Date | 20 November 1906 |
| Court | Supreme Court of West Virginia |
Submitted June 12, 1906.
Rehearing Denied Jan. 10, 1907.
Syllabus by the Court.
The administrator of an estate, the personal property of which is insufficient to pay the debts of the decedent, by reason whereof he is empowered, by section 7 of chapter 86 of the Code of 1899 [Code 1906, § 3288], to subject the real estate of his decedent to the payment of such debts, may redeem the land, within the time allowed by section 15 of chapter 31 of the Code of 1899 [Code 1906, § 873], from a sale thereof for nonpayment of taxes.
An administrator, under such circumstances, may, after the expiration of the redemption period, in the exercise of his power to subject the real estate of his decedent to the payment of debts, by means of a suit in equity, have an invalid tax deed to the land set aside in such suit, or in an independent suit brought for the purpose, when the circumstances warrant the institution and maintenance thereof.
Lists of real estate returned delinquent by collectors of cities and towns, for nonpayment of municipal taxes, as authorized and provided by section 36 of chapter 47 of the Code of 1899 [Code 1906, § 1881], or a like provision in a charter specially granted to a city or town, must be certified to the clerk of the county court of the county wherein the real estate is, and by that officer, recorded, as the lists returned by the sheriff of the county for nonpayment of state taxes are recorded, and thereby made part of the proceedings of record in said office.
The authority conferred by section 36 of chapter 47 of the Code of 1899 [[[Code 1906, § 1881] to sell real estate for nonpayment of municipal taxes "in the same manner *** as real estate is sold for the nonpayment of state taxes," impliedly confers and imposes the power and duty to make the delinquent lists upon which such sales are founded part of the proceedings of record in the clerk's office of the county court.
Where the law commands or authorizes anything to be done, it authorizes the performance of whatever may be necessary to the execution of its commands.
When the provision of a statute is general everything that is necessary to make it effectual is supplied by implication and, in the interpretation of such a provision, courts must observe and adhere to the general policy of the law relating to the subject-matter thereof.
The provisions of section 25 of chapter 31 of the Code of 1899 [Code 1906, § 884] sustaining tax deeds, predicated upon irregular and defective proceedings, are applicable only to such defects, mistakes, and irregularities as appear on the face of the proceedings of record in the office of the clerk of the county court.
The curative provisions of section 25 of chapter 31 of the Code of 1899 [Code 1906, § 884] apply to deeds made in pursuance of sales of real estate for nonpayment of city and town taxes.
Mere informality of the record made by a city council of the return, acceptance, and allowance of a city collector's list of delinquent real estate will not sustain an attack upon a sale of real estate returned in said list after a deed therefor has been executed and recorded.
Neither failure of a city council to direct a copy of such list to be certified to the Auditor of the state, nor the certification thereof as aforesaid, by the city clerk without such direction, when the city charter provides that it shall be certified by the mayor, will invalidate a sale of the real estate after the deed has been executed and recorded.
Delay of a city collector in making his return of delinquent real estate, for the period of a year after the date fixed therefor by law, will not invalidate a tax deed.
A tax deed in the form prescribed by the statute is prima facie evidence of title to the land thereby conveyed in the grantee thereof, as against such persons as could have redeemed it from the sale within one year from the date thereof, and can be set aside, or its effect annulled by such person only by proof of a fatal defect in the proceedings, and, when the nature of the suit is such as to require a basis for the evidence in the pleadings, he must plead it.
Appeal from Circuit Court, Wood County.
Action by John Hogan, administrator of the personal estate of Laura Layne, against J. T. Piggott and another. From a decree dissolving an injunction, plaintiff appeals. Affirmed.
Merrick & Smith, for appellant.
W. E. McDougle and C. T. Caldwell, for appellees.
On the 10th day of October, 1905, the circuit court of Wood county dissolved an injunction, previously awarded to John Hogan, suing as administrator of the personal estate of Laura Layne, deceased, and as special commissioner, appointed in a certain chancery cause, on his bill against J. T. Piggott and James A. Watson and others, the object of which was to set aside a tax deed made by the clerk of the county court of said county to said Piggott and Watson, conveying to them part of a certain lot in the city of Parkersburg, known as "Lot No. 76," on Market street, pursuant to a sale thereof made by the sheriff of said county for nonpayment of the city taxes thereon for the year 1899, and to restrain said Piggott and Watson from prosecuting an action of unlawful detainer for the recovery of the possession of said lot, and dismissed the bill upon final hearing. From this decree, the plaintiff has appealed.
In the year 1899, said lot belonged to the estate of J. B. Gould, deceased, and was charged with taxes by the city of Parkersburg as the property of said estate. Later, in a chancery cause instituted by Edward McCrary, executor of the will of Gould, against Ella M. Gould and others, it was sold to John Hogan, who conveyed it to Laura Layne. In the year 1902, Laura Layne died intestate, leaving a large amount of indebtedness unpaid, and Hogan was appointed her administrator. It being necessary to sell the real estate in order to pay her debts and liabilities, the administrator instituted a chancery suit for that purpose, in which such proceedings were had that said lot was, on the 28th day of July, 1904, decreed to be sold, and the plaintiff was appointed a special commissioner to make sale thereof. After having advertised the lot for sale, he discovered that Piggott and Watson claimed it under a deed made by the clerk of the county court, pursuant to a sale of the lot made on the 12th day of July, 1903, under a return of delinquency of said lot for the city taxes thereon for the year 1899. Thereupon the court directed Hogan, as such special commissioner, not to sell under said decree, and, as administrator and special commissioner as aforesaid, to institute a suit to set aside the tax sale and deed, which was accordingly done with the result above stated. All these facts are alleged in the bill and not denied by the answer. In response to the allegations setting them up, the respondents Piggott and Watson say, for the most part, that they are not advised as to whether they are true or false. Such of them as are favorable to the defendants are admitted. Relying upon section 36 of chapter 125 of the Code of 1899 [Code 1906, § 3856] providing that "every material allegation of the bill not controverted by an answer *** shall, for the purposes of the suit, be taken as true," and no proof thereof required, the plaintiff introduced no evidence to sustain the allegations not denied. If the protestations of want of knowledge of their truth had been accompanied by a general denial, it would have devolved upon the plaintiff to prove the facts, but a mere averment of want of personal knowledge is not a denial of the allegations. A general denial of all material allegations will be sufficient, if not excepted to. Richardson v. Donehoo, 16 W.Va. 686; Warren v. Syme, 7 W. Va. 475; Fleming v. Holt, 12 W.Va. 143, 160. This liberality in favor of the respondent, however, does not go so far as to enable him to put the complainant to the proof of an allegation without denying it all. Dent v. Pickens (W. Va.) 53 S.E. 154.
The attempt of counsel for the appellees to sustain the decree on the ground of want of power and authority in the plaintiff as administrator and special commissioner, to maintain a suit for the purpose of setting aside the tax deed makes some of these facts very important and material. It thus appearing that the plaintiff's decedent, by successive conveyances from the Gould estate, owned the lot at the time of her death, which occurred before the sale thereof, and that the personal property of which she died possessed was insufficient to pay her debts, in consequence whereof her general creditors, by virtue of section 3 of chapter 86 of the Code of 1899 [Code 1906, § 3284] making the real estate of decedents assets for the payment of their debts under such circumstances, could have charged her real estate for their debts had it not been sold, and, at any time within one year after the sale, could have redeemed, as persons having the right to charge the lot for debts, by virtue of section 15 of chapter 31 of the Code of 1899 [Code 1906, § 873] it is insisted by counsel for the appellant that he, being authorized by section 7 of chapter 86 of the Code of 1899 [Code 1906, § 3288] to institute a suit in equity to subject the real estate of his decedent to the payment of her general debts, has sufficient interest to entitle him to sue for the cancellation of the tax deed which constitutes a cloud upon the title, if invalid. In a sense, he has the right to charge the real estate of his decedent for a debt. He sues to subject it to the payment of the debts of all the creditors. He does not sue on account of any...
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