James v. James

• Citation: 77 W.Va. 229,87 S.E. 364
• Decision Date: 23 November 1915
• Docket Number: (No. 2575.)
• Court: West Virginia Supreme Court
• Parties: JAMES et al. v. JAMES et al.

87 S.E. 364

77 W.Va. 229

JAMES et al.

v.JAMES et al.

(No. 2575.)

Supreme Court of Appeals of West Virginia.

Nov. 23, 1915.

(Syllabus by the Court.)

Appeal from Circuit Court, Kanawha County.

Suit by J. D. James and others against Daniel James and others. From the decree the defendant named appeals. Reversed and remanded.

Belcher, Stiles & Goettman, of Charleston, for appellant.

Murray Bxiggs, of Charleston, for appellees.

MILLER, J. In a suit to partition the lands of Davis James, deceased, the only controversy between partitioners related to a tract of one hundred and four and one half acres, situated in Kanawha County. The question was whether this tract constituted a part of decedent's estate, or was the individual property of the defendant Daniel James, as he claimed.

By the decree appealed from the court below adjudged this tract to be a part of the estate of said decedent, but charged the respective interest of each of the five plaintiffs, being respectively a one tenth interest therein, with the sum of one hundred and eighty dollars, in favor of said Daniel James, or one tenth of the sum alleged and proven to have been paid by him to B. F. Pinson, a former owner, and from whom he obtained a deed therefor on February 21, 1912.

The facts pleaded and proven respecting said tract were that it was originally partitioned to the said B. F. Pinson, in the year 1882, as his share of his father, Jacob Plnson's estate; that thereafter it was taxed in his name and returned delinquent for the non-payment of the taxes thereon for the the year 1893, and for which it was sold by the sheriff December 2, 1895, and purchased by the said Davis James, father and ancestor of plaintiffs; that Davis James died in November, 189C, before the expiration of the year when he would have been entitled to a deed, but that on December 8, 1896, the county clerk, upon the report of the surveyor, had made and executed in the form prescribed by law a deed to Davis James, and delivered the same to his heirs or some of them, and which they received and placed upon record; that thereafter and up until the time of the bringing of this suit, the widow and heirs took and held possession of the land, adjoining other lands of decedent, and on which he until his death, and they or some of them after his death, had continuously resided, and had paid all the taxes thereon; that after so obtaining said tax deed, said partitioners, including the said Daniel James, up until he purchased and took his deed therefor from said B. F. Pinson continuously claimed said tract, and contributed to and paid the taxes assessed thereon; that on learning of the purchase by said Daniel James of the outstanding title or claim of said Pinson, complainants proposed to him to contribute to the expense of said purchase and to share therein in the proportion of their alleged interests in said land, but which he declined, denying their right to so participate therein; that Pin-son's only claim of right or title to said land, as original owner, was by and through a subsequent sale thereof for the non-payment of the taxes thereon for the year 1895, and the purchase thereof by the state, and the subsequent proceeding against the same by the commissioner of school lands and the decree of redemption entered therein September 13, 1901, adjudging the same to have been redeemed by him, but to which plaintiffs and partitioners were not made parties, and did not appear.

Wherefore, it was claimed and contended by complainants in the court below, and re peated here, that the purchase by said Daniel James of the alleged title and interest of said Pinson enured to their benefit as co-tenants or parceners with him, and that the same amounted merely to a redemption of said land by him from said Pinson, justifying the decree appealed from.

The first question presented is, did complainants stand in such relationship of co-tenants or parceners to their brother, Daniel James, at the time of his purchase from Pinson as entitled them, upon the terms decreed or upon any terms, to take the benefit of that purchase to perfect their own title or interest in said tract?

It is conceded that Davis James, the father, purchased said tract, as alleged, in December, 1895, and if he had lived would have been entitled to a deed in December, 1896, and that dying within that year his heirs, by virtue of section 19, chapter 31, serial section 1077, Code 1913, would have been entitled to such deed, if applied for and obtained at any time within five years from the date of such sale, but not afterwards. Section 24, chapter 31, serial section 1083, Code 1913. It is apparent from the facts stated that at the date of said alleged redemption more than five years had elapsed from the date of the sale and purchase by Davis James, and if the deed to him, then deceased, was void for that reason, and passed no title to his heirs, it was at the date of said order of redemption then too late for the heirs to have procured a deed therefor pursuant to said section 19, chapter 31, of the Code.

It seems to be law that a prior void deed for land purchased at a tax sale will not preclude the grantee or his heirs entitled thereto from applying for and obtaining a good deed for the land purchased. Baker v. Lane, 82 Kan. 715, 718, 109 Pac. 182, 28 L. R. A. (N. S.) 405, and cases cited; City Bank of Portage v. Plank, 141 Wis. 653, 124 N. W. 1000, 135 Am. St. Rep. 62, 18 Ann. Cas. 869, note 872. It Is also well settled that in the absence of a regulatory statute a deed to one deceased is void, and passes no title. Devlin on Real Estate, § 187; City Bank of Portage v. Plank, supra, note and cases cited. In Kentucky, for example, the statute, section 2063, chapter 64, St. 1894, in terms, passes the title to the heirs of one deceased at the time of a deed or grant.

But while our statute gives the heirs the right to the tax deed in case of the death of their ancestor before deed obtained, it does not, like the Kentucky statute, pass the title to them under a deed to the deceased purchaser. The deed involved here purports to grant, bargain, sell and convey to Davis James, the grantee named, "his heirs and assigns forever, " etc. It is not and cannot be construed to be a grant to the heirs of the deceased grantee, for the words employed are not words of purchase but of limitation only. 1 Devlin on Real Estate, section 187; 8 R. C. L. 952, section 27 and cases cited. In the deed before us the language is not even in the alternative "or his heirs, " in which event, according to some authorities, we might construe the deed as a grant to "his heirs." Neal v. Nelson, 117 N. C....