McClain v. Batton.
| Citation | 50 W.Va. 121 |
| Court | West Virginia Supreme Court |
| Decision Date | 16 November 1901 |
| Parties | McClain v. Batton. |
Where a sheriff appends to his list of sales of delinquent lands the following affidavit: "I, S. B. Mc, sheriff of the county of D., swear that the above list contains a true account of all the real estate within my county which has been sold by me to individuals, during the present year, for the non-payment of the taxes thereon for the years 1889 and 1890, and that I am not now directly or indirectly interested in the" purchase of any of said real estate," thus omitting from the affidavit required by law the words, "Nor have I at any time been directly or indirectly interested in the purchase of any of said real estate," such omission is a fatal defect in the sale and invalidates a deed made in pursuance of a purchase made at such sale. (p. 126).
Such an omission is not a mere irregularity, but a fatal omission, raising a presumption of the violation of section 9 of chapter 31 of the Code. (p. 126).
Parol evidence is not admissible to uphold or invalidate a tax deed, and it must be determined from the proceedings of record on which the deed is founded and from the face of the deed itself, whether the deed is valid. (p. 127).
A defective tax deed should not be set aside, unless the person entitled to have the same set aside, shall pay or tender to the purchaser, or his heirs, devisee or assignee, or the person holding under him, or some one or more of them, the purchase money paid for the real estate at the tax sale, and all the taxes since paid thereon for any year or years fcr which such person so claiming, or those under whom he claims, have not paid taxes thereon, and the costs of the survey or report, with interest on each of said sums from the date of the payment thereof until paid by such claimant. (p. 130).
When the taxes paid by a purchaser at a, tax sale are a just charge upon the property sold, but the tax sale or deed is invalid because of irregularities in the proceedings, relief in equity, to-set aside such sale or deed, will be conditioned upon the reimbursement of the defendant, and the plaintiff must keep the tender good by pleading it and paying the money into court, if the amount is ascertainable, and whether it is or not, he must offer in his bill to pay it when ascertained. (p.131).'
G. Bill Relief Amendment.
Where the bill is insufficient but the proof shows the plaintiff is entitled to relief upon the cause of action imperfectly stated in the bill, and the decree is reversed, the cause will be remanded, with leave to amend the bill. (p. 132.)
Appeal from Circuit Court, Doddridge County.
Bill by Stewart L. McClain against Thomas Batton. Decree for complainant. Defendant appeals.
Reversed.
J. V. Blair, for appellant.
W. S. Stuart, for appellee.
pofeenbarger, judge:
This is an appeal from a decree of the circuit court of Doddridge County, upon a bill filed by Stewart L. McClain against Thomas Batton, to set aside a deed made to Batton by the clerk of the county court of said county, pursuant to a purchase made by him from the sheriff of said county at a sale of lands, delinquent for the non-payment of taxes for the years 1889 and 1890. The sale was made on the 17th day of November, 1891, and the deed executed on the 31st day of June, 1893. The amount of land thus purchased and conveyed is fifteen acres. It adjoins four hundred and ten acres, owned by the defendant, and also a tract of sixty-eight acres, formerly owned by the plaintiff. At the time of this sale, McClain did not own the land. It was taxed and sold in the name of M. J. Lowther and the delinquent taxes for which it was sold were for the year 1889. It was originally a part of a tract of eighty-three acres, afterwards claimed by the plaintiff. It was recited in the deed filed with the bill that A. J. Lowther and M. J. Lowther had sold the eighty-three acres and the four hundred and ten acre tract to Oliver Lowther and also that payment had been made, in various ways, of such portion of the entire purchase-money as equals the value of the eighty-three acres and conveys said eighty-three acres to Oliver Lowther. That deed is dated December 1, 1887, but was not admitted to record until May 26, 1891. At June rules, 1893, a chancery suit was brought by W. S. Chapman to subject the real estate of said Oliver Lowther, to the payment; of certain liens thereon, held by him and others, and such proceedings were had therein that, on the 22d day of November, 1894, W. S. Stuart, special commissioner, sold said eighty-three acres of land to the plaintiff, S. L. McClain, for the sum of three hundred dollars. The sale was confirmed by the court and, on the 17th day of August, 1897, a deed was executed in pursuance of that sale to McClain.
The land book shows that for the year 18-97, the tract of eighty-three acres was taxed in the name of.Jonathan Stout's estate; that for the year 1880, the sixty-eight acres appeared in his name and fifteen acres, composed of two tracts of seven and one-half acres each, in the name of M. J. Lowther, transferred from the Stout estate; that, for the year 1881, these tracts were taxed in the same way; that, for the year 1882, the sixty-eight acres appeared in the name of Stout's estate and the two seven and one-half acre tracts were combined and taxed in the name of M. J. Lowther as fifteen acres; that the same arrangement appears for the years 1883, 1884, 1885, 188G, 1887, 1888, 1889, 1890 and 1891; and that, for the year 1892, the land was taxed in the name of Oliver Lowther as a tract of eighty-three acres. it seems that in 1879 A. J. Lowther brought a suit for the partition of the Stout land and, in that suit, a survey and plat were made by Daniel Sherwood, who is now dead. The land was found to be not susceptible of partition and was sold and M. J. Lowther became the purchaser. In the survey thus made the eightythree acre tract was divided into three lots, containing, respectively, seven and one-half acres, seven and one-half acres and sixty-eight acres, and, from the proceedings had in that suit, it resulted that these tracts were entered upon the land books as aforesaid. The decree of sale in the partition suit was made on the 19th day of duly, 1881, and the sale thereunder made to M. J. Lowther, was confirmed and a deed ordered to be made to her on the 21st day of March, 1893. From this, it is clear that the fifteen acre tract was properly entered upon the land book and properly charged with taxes for the year 1889, and there is no evidence that the taxes had been paid. It is not claimed by the plaintiff in this suit, that he redeemed this fifteen acre tract from the defendant, but only that immediately before the suit was instituted he tendered the redemp- tion money to the defendant. As to this tender there is no question, it was made. There is nothing upon which the plaintiff could predicate his claim to relief except alleged irregularities and defects in the sale thereof and the proceedings relating thereto.
There are several of these alleged defects and irregularities. In verifying his list of sales the sheriff annexed the following certificate: "I, S. B. McMillian, sheriff of the county of Doddridge, swear that the above list contains a true account of all the real estate within my county which has been sold by me to individuals during the present year for the non-payment of the taxes thereon for the years 1889 and 1890, and that I am not now directly or indirectly interested in the purchase of any of said real estate; so help me God.
S. B. McMillian, Sheriff."
It is claimed that this affidavit is defective in having omitted the words "nor have I at any time been directly or indirectly interested in the purchase of any of said real estate;" and further in omitting the following clause "as well as the list of all the real estate redeemed, and the names of the persons who redeemed the same during the present year for the non-payment
of taxes thereon for the year of-." Complaint is also
made that the words "acres" and "fractions" do not appear at the heads of the columns in which the quantity of land is inserted, rendering it uncertain whether that quantity was fifteen acres, fifteen roods, fifteen poles or fifteen feet of land; that the heading "In what district the land is situated" is erased or stricken out, so that it does not appear in what district the land purchased is located; that under the heading "Local description of the land" the words "New Milton District" are inserted; that in the column headed "Amount of taxes due thereon for State and State school purposes including interest and commissions" the words "and commissions" are stricken out and the words "and damages for which sold" were inserted by the sheriff, so that the list in this respect fails to comply with the law then in force; that the list contains no column showing "Amount of school district, and independent school district taxes due thereon, including same;" that it includes no column showing "Amount of other district taxes due thereon, including same;" that it contains no column showing "Amount of municipal taxes due thereon, including same;" that, in the column headed "Quantity of land sold/' the words "acres" and "fractions" are stricken out; that there is a column in said list headed "Date of each sale 1891," which was not then required by the statute; that there is no column showing "whole amount paid for purchase-money, fee for receipt and costs of publication" as then required by statute, but instead thereof there is a column headed, "Amount of purchase-money paid, including interest, damages, commission, fee for receipt and cost of advertising;" and that the list contains but eleven columns while the statute provided...
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