Lasher v. McCreery

• Decision Date: 25 February 1895
• Citation: 66 F. 834
• Parties: LASHER et al. v. McCREERY et al.
• Court: U.S. Court of Appeals — Fourth Circuit

66 F. 834

LASHER et al. v. McCREERY et al.

United States Circuit Court, D. West Virginia.

February 25, 1895

Couch Flournoy & Price, for plaintiffs.

W. E Chilton, E. S. Miller, and Johnson, Watts & Ashby, for defendants.

Before GOFF, Circuit Judge, and JACKSON, District Judge.

JACKSON District Judge.

The bill alleges that the tract of land in controversy in this case is a portion of two grants of land issued by the commonwealth of Virginia in 1795 to Robert Morris, one for 320,000 acres and the other for 480,000 acres. The evidence discloses a chain of title from the grantee down to Henry Cramond, who acquired the lands by deed from the heirs of Thomas Astley on the 10th day of December, 1840. It appears that the two tracts of land became forfeited in the name of Henry Cramond to the state of Virginia for the nonpayment of taxes thereon prior to the year 1842, and that the lands so forfeited and embraced in the two grants were sold in 1843 at which sale William Cramond became the purchaser; that subsequently Michael Bouvier, by various mesne conveyances, acquired the title to them, and, having had a resurvey made of them, he divided all of his lands into six tracts, one of which was 36,750 acres,-- the subject-matter of this controversy. It is disclosed that the plaintiffs acquired the legal title to 36,750 acres by proper conveyances from the grantee in the patent down to the date of his deed in 1882. It also appears that the lands were charged with taxes to John Herman on the assessor's books for Tazewell county, Va., for the year 1847 to the year 1861, inclusive, and were paid; that, owing to the Civil War, there were no taxes charged against these lands until the year 1865, when they were charged to Michael Bouvier, in McDowell county, with taxes for the year 1865-1868, both inclusive. In the year 1869 this tract was consolidated with a tract of 8,400 acres, one of the six divisions before referred to, and entered on the assessor's books of McDowell county as a tract of 45,150 acres, charged with taxes, returned delinquent for their nonpayment that year, and sold by the sheriff of the county in October, 1871, and purchased by the state. After the year 1869 the lands appear on the land books of Wyoming county in the name of Patterson and others, who were the owners of the tract from 1870 to 1874, inclusive, when they appear in the name of Francis Lasher from 1875 to 1890, inclusive,-- the year the plaintiffs brought this action. And in this connection it is to be observed these two large tracts of land, lying both in McDowell and Wyoming counties, appear to have been assessed sometimes in one county and then in the other.

It is apparent from this history of the title to the land in controversy that, with one exception, from the time it was purchased by William Cramond, at the sale made by the commissioner of forfeited and delinquent lands in 1843, it has been charged on the land books in the names of its various owners, and the taxes paid. It is, however, of little or no moment at this time to investigate the history of this title prior to the delinquent sale in 1843. We must, at this late day, presume that the proceedings which resulted in the sale of the land were regular, and that a new title began at that time, which has been transmitted by regular conveyances to the plaintiffs in this action. It follows from that we have said that the title to the land in controversy is in the plaintiffs to this action, unless they have lost it, since they acquired it, by neglect, or in some way permitted it to pass from them.

This brings us to the consideration of the questions raised by the defense to defeat this action. And here it is to be observed that the purpose of this bill is to remove a cloud upon the title of the plaintiffs by securing a decree to annul and set aside the deeds made under the proceedings instituted by the commissioner of school lands in Wyoming county in 1881 under the act of 1873, under which the defendants claim. The answer of the defendants to this position of the plaintiffs is that the land was forfeited under the act of 1869 as amended in 1872-73 for nonentry upon the commissioner's books of Tazewell county for the years 1843 and 1844.

The contention of the defendants, first, is that, if the land was omitted from the proper assessor's book for the year 1832, or any year thereafter, and the owner failed to have the back taxes charged for five successive years thereon, and such further omission continued for one year after the passage of the act, the land became forfeited; or, if the land had been omitted for any year prior to the passage of the act, including and after 1832, or shall not have been charged thereon for five successive years after the passage of the act, then, in either case, such failure operated to forfeit the land. I cannot concur in this construction of the act. It is, to my mind, a forced construction to cover the facts of this case. As we have before seen, the land in controversy was omitted from the assessor's book in 1843 and 1844, and the omission was but for two years; but it appears on all the land books in the names of the various owners from 1847 down to the institution of this suit, with that single exception. What, then, was the duty of the owner of the land under the act of 1869, when it was omitted from the assessor's books? Simply to cause them to be entered on the proper assessor's book, and charge them with the state taxes thereon not charged to the owner for the year 1832, or 'any year thereafter,'--that is, 1832, or any year 'heretofore'; that is, prior to the passage of the act, and subsequent to the year 1832, or 'any year hereafter'; that is, for any year after the passage of the act,-- which have not been released or paid, and which were properly chargeable to the land. This clause of the statute clearly points out to the owner what was required of him. The purpose of the next clause is to punish the party for his neglect or failure to comply with his duty 'for five successive years.' What duty? Clearly, the duty to enter his lands as required by the statute, and charge them with the back taxes. And if he fails to do this for five successive years, the penalty for his neglect is the forfeiture of his land. And for what is this penalty imposed? Is it the neglect to enter the lands for one year, or the failure to have them charged thereon for five successive years? Certainly, the legislature did not intend that the statute should be construed to deprive an owner of his lands for the omission of a single year to enter them on the land books, and retain the taxes paid both before and after the passage of the act. No such injustice could be imputed to the legislature. Such a construction of the statute would be not only unjust, but might be the means of inflicting great wrong upon an innocent owner. We must assume that the legislature, in passing this statute, acted justly and wisely, and in a spirit of liberality to the delinquent landowner, when it declared that before the owner could be deprived of his land he must neglect to enter it, not for one, two, three, or four years, but for five successive years. The language employed seems to me to be too plain to admit of any other construction. The law is well settled that in construing a statute we must ascertain, if possible, the intent of the legislature in enacting it, and to so construe it as to give effect to its intention. Looking for the true meaning of this statute, and what justly was its object and purpose, we think the legislature meant that the owner of any tract of land omitted from the proper assessor's book for a period of less than five successive years should not be deprived of his land by reason of such omission, and that it did not work a forfeiture.

Before leaving this branch of the case, it might be well to allude to the act of 1869, and ascertain its purpose. I do not care to review the several acts of 1830, 1831, 1832, 1835, and 1836, relating to delinquent lands, more than to say that prior to the act of 1835 there was no law authorizing the forfeiture of lands for the failure of the owner to enter them on the land books, and have them assessed with back taxes, so that the state could get her taxes from such delinquent lands. The act of 1869, known as the 'Huffman Act,' was passed with the view to remedy this evil. By that act it was intended to put lands delinquent for the nonpayment of taxes and those that were delinquent for nonentry on the commissioner's books upon the same footing, and for this purpose the year 1832 was fixed as the time in the statute when they would stand upon a common footing. If I am right in the construction of this statute was the tract of land in question liable to forfeiture when the proceedings were instituted by the commissioner for that purpose? To answer this question we must ascertain against what land the proceedings were had, and if they were taken against the tract of land in controversy. It appears from the papers in this cause that the action of the commissioner was taken against the 480,000 acre tract and the 320,000 acre tract granted to Robert Morris. It does not appear that any proceedings were had directly against the land in controversy, but, if affected by the proceedings, it is only by reason of the fact that it was originally a portion of one of these two tracts or of both of them. At the threshold of this investigation we are met with the fact that Robert Morris had conveyed all of his interest in the two tracts long before the institution of these proceedings; in fact the plaintiffs claim under a deed made by Robert Morris to William Cramond in 1797, more than 80 years before the commissioner instituted his proceedings. This...