Lefever et al. v. Thomas.
| Decision Date | 04 April 1911 |
| Citation | 69 W.Va. 88 |
| Parties | Lefever et al. v. Thomas. |
| Court | West Virginia Supreme Court |
1. Pa rties Plain tiffs Mi s joinder.
Where plaintiffs have a joint interest, or seek a common object by means of the suit, though they be not united in interest with each other, there is no misjoinder of parties, (pp. 91, 92).
2. Taxation Tax Deeds Actions to Set Aside Parties.
In a suit to set aside a tax deed for land illegally returned delinquent and sold, one to whom a part of said land has been sold and conveyed subsequent to the year for which it was so returned as delinquent, is not a necessary party to such suit, the decree in such suit binding him as well as his vendor, and if in favor of the latter, enuring to his benefit, (p. 92),
3. Same.
The interest of one who has acquired title to a portion of such delinquent land prior to the year for which it was so returned delinquent and sold in the name of his vendor, is so separable as not to render him an indispensable party to a suit by such vendor to set aside such tax sale and deed; and the court without his presence as a party, may proceed to final decree in favor of such vendor without affecting his interests, (p. 98).
4. Same Double Taxation Payment of Taxes.
Though there has been a parol partition of land between two joint tenants, but no deeds have passed between them, the legal title to the whole remaining invested in them jointly, the assessment of the whole tract to, and payment of taxes thereon by the grantee of one joint tenant by two deeds, one conveying his undivided interest in the whole tract, the other, by metes and bounds, the part allotted to him in severalty by said partition, will discharge the taxes on the whole tract, render void a delinquent return, sale, and purchase, and the deed to the purchaser, for the taxes for the same year, of the part allotted to the other partitioner, assessed in the name of such partitioners jointly, (p. 93).
5. Same Tax Sales Actions to set Aside Parties.
Parties and partitioners thus related in title, and having such interest therein, may properly join in a suit to set aside such tax title, and to remove the same as a cloud on their title. I p. 94).
(Brannon, Judge, absent.)
Appeal from Circuit Court, Doddridge County.
Bill by Content Lefever and others against Lewis Thomas. Decree for plaintiffs and defendant appeals.
Affirmed.
J. V. Blair and W. S. Stuart, for appellant.
J. Ramsey, for appellees.
The decree appealed from adjudged that the sale by the sheriff to defendant Thomas, December 9, 1901, of the tract of twenty five acres, in controversy, and the subsequent deed to him therefor, made by the clerk of the county court, October 13, 1903. were illegal, null and void, vested no title thereto in him, and constituted a cloud upon the title of the plaintiffs Content Lefever and I. J. Lefever, which by said decree it was further decreed should be and the same was thereby removed.
As the bill and record show, said tract is a part of a larger tract, described as containing forty acres, which, in 1874, was conveyed by Morrow and wife to F. J. and I. J. Lefever, intended for N. F. and I. J. Lefever. In March, 1893, N. F. Lefever, by a writing under seal, purporting to be an agreement, but by apt words, undertook to and did, for the money consideration recited, sell and convey to one Burbridge said tract of land, describing it as the same land, conveyed to him and I. J. Lefever by said morrow, and "supposed to be fifty acres, more or less," with covenants of general warranty, and retaining a vendor's lien for the unpaid purchase money. By deed of May 8, 1893, referring to said agreement, and purporting on its face, to have been made in pursuance thereof, the said N. F. Lefever, for the same consideration, thereby undertook to and did grant, unto said Burbridge, with covenants of general warranty, a tract of land, described by metes and bounds, as containing fourteen and three fourths acres. By deed of June 26, 1896, Burbridge and wife, for the cash consideration recited, and acknowledged, sold and conveyed to plaintiff, Content Lefever, wife of I. J. Lefever, the other plaintiff, with covenants of general warranty, a tract in the same general location, described by metes and bounds, as containing forty two acres, more or less, excepting therefrom, however, three and one half acres, sold to Robert Starkey. While the land lastly described is not, from these title papers, easily identified as the same tract covered by the deed of 1874, from Morrow and wife to the Lefevers, and as covering the fourteen and three-fourths acres, described in the deed of May, 1893, from X. F. Lefever to Burbridge, yet the bill alleges, and it is conceded, that all these deeds are so related to the land, and are properly so identified.
There is also an averment in the bill that plaintiffs, June 26, 1900, re-conveyed six acres, part of said forty acres, to said Burbridge; and, September 16, 1898, to E. E. Davis, one and one-fourth acres thereof, leaving plaintiffs then the owners in fee simple of thirty and one half acres of said forty acres.
The material facts alleged and proven, respecting the tax title to the twenty five acres, claimed by the defendant Thomas, the subject of the present controversy are, that after the deed of June 26, 1896, from Burbridge and wife to the plaintiff Content Lefever. and beginning with the year 1896, the whole tract of forty and three-fourths acres was entered on the land books of said county in her name; and that regularly, each year, and down to and including the year 1905, she was charged with and paid all the taxes charged and chargeable thereon, not excepting the year 1899, for the taxes of which year the twenty-five acres, part thereof remaining taxed also in the name of the said N. F. Lefever and I. J. Lefever, were sold and purchased by said Thomas. Wherefore it is averred that the return of said twentyfive acres, as delinquent in the name of said N. F. and I. J. Lefever, for the year 1899, and the subsequent sale thereof by the sheriff, and purchase by and conveyance to defendant Thomas, the taxes thereon for that year having been fully paid by said Content Lefever, were unlawful and void acts, investing no title in the purchaser, but constituting a cloud on plaintiffs' title, which a court of equity should remove.
A fact relied on by defendant in answer and proof is that after the contract of March, 1893, and a day or two before the making of the deed from N. F. Lefever to Burbridge, a parol partition of the forty acres was made, in which the fourteen and threefourth acres, described in said deed, were set off to N. F. Lefever, and the twenty-five acres to plaintiff I. J. Lefever, but that the twenty five acre tract thereafter remained taxed on the land books to both X. F. and I. J. Lefever, in whose names it was so sold and purchased by said Thomas.
Two points arising on the demurrer to the bill, overruled by the court below, are here presented. First, that plaintiff, Content Lefever, because of said parol partition, and the deed from IV. F. Lefever to Burbridge, notwithstanding the deed from the latter...
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