McGee et al v. Sampselle el al.

• Decision Date: 09 December 1899
• Citation: 47 W.Va. 352
• Parties: McGee et al v. Sampselle el al.
• Court: West Virginia Supreme Court

47 W.Va. 352

McGee et al

v.Sampselle el al.

Supreme Court of Appeals of West Virginia.

Submitted June 23, 1899

Decided December 9, 1899.

1.Delinquent Sale. Sheriff}s Affidavit Title.

The law requires the sheriff to append to his return of delinquent lands a prescribed affidavit. If he omits to do so, and such land is subsequently sold by the sheriff, and by him purchased on behalf of the State, such omission will vitiate the sale, and the State will thereby acquire no title to the land. (p. 856).

2.Delinquent Sales-Statute Construed.

Where the State becomes the purchaser of land at a delinquent sale, the requirements of the statute with reference to the return and sale of delinquent lands must, be complied with before the title to such land becomes vested in the State, (p. 358).

3. State Purchaser Curative Statute.

The curative provisions of section 25 of chapter 31 of the Code do not apply where the State becomes a purchaser of land at a delinquent sale. (p. 358).

4. Purchaser Delinquent Sale Title.

When the proceedings for the return and sale of a tract of land as delinquent for the non-payment of taxes are such as to confer title upon an individual or the State as a purchaser thereof, such purchaser becomes vested with such estate in and to the land so purchased as at the commencement of, or at any time during, the year for which said taxes were assessed, was vested in the party assessed with said taxes, (p. 358).

Appeal from Circuit Court, Mingo County.

Bill by Nancy Brown and William McGhee against L. A. Sampselle and others. Decree for defendants. Plaintiff McGhee appeals.

Reversed.

H. K. Shumate and Campbell, Holt & Campbell, for appellant.

R. H. Hoyle, for appellees.

English, Judge:

The questions presented for consideration in this case arise out of conflicting claims to the timber on a certain tract of land of two hundred and fifty acres, now situated on the waters of Bens creek, Mingo County, formerly in Logan County. It appears from the record that on the 4th of June, 1S88, Enoch Gibson, who then owned one thousand live hundred acres on Bens creek, then in Logan County, sold and conveyed to petitioner William McGhee, one thousand nine hundred and seventy-six poplar trees on said land, which trees w7ere marked with the letter "M," with an ax. The deed for same was recorded June 24, 1888. On December 16, 1889, said Gibson conveyed to Nancy Brown, his daughter, two hundred and fifty acres, a portion of said one thousand five hundred acres, reserving and excepting the marked poplar timber. On the 28th of Sep* tember, 1895, Nancy Brown and her husband sold and conveyed to said William McGhee three hundred and twelve yellow poplar, cucumber, and ash trees, and seven hundred and seventy-three oaks, standing on said two hundred and fifty acre tract, also marked with an "M," which deed was recorded November 28, 1895. This two hundred and fifty acre tract was returned delinquent for alleged non-payment of taxes for the year 1891 in Logan County. Subsequently the sheriff undertook to advertise and sell this tract for taxes. And on November 19, 1895, a suit was instituted in the name of the State of West Virginia in the circuit court of Mingo County against said Nancy Brown and many others, not including McGhee, the process in which suit was made returnable to December rules, was served upon some of the defendants, and returned "Not found" as to Nancy Brown. At the December rules, 1895, the bill was filed, embracing different tracts of land and many defendants, including Nancy Brown. The bill prayed for the sale of the land, alleging that it had been properly returned delinquent; that it had been sold and bought in by the sheriff for the State; that the land had been certified by the auditor to the commissioner of school lands, and by him reported to the circuit court as liable to sale under the provisions of chapter 105 of the Code; and that by reason of said sale and purchase the title had become absolutely forfeited and completely vested in the state, and the same had not been redeemed or released from said forfeiture, and was liable to be sold for the benefit of the school fund. On January 18, 1896, the cause was referred to a commissioner, who reported that the Nancy Brown tract had bv reason of the sale and purchase thereof become vested in the state for the benefit of the school fund. On September 23, 1896, a decree was entered confirming the commissioner's report, finding forty-tour dollars and eighteen cents taxes and interest against the Nancy Brown tract, and decreeing it and many other tracts to be sold for the school fund. In pursuance of this decree the tract was advertised and sold on the 21st of January, 1897, to the appellee, L. A. Sampselle, trustee, who paid the taxes and interest due the state, which sale was afterwards confirmed, and a deed directed to be made to the purchaser. The return on the original summons being "Not found" as to Nancy Brown, the state obtained permission from the court for the sheriff to amend his return so as to show service upon her. On the 15th of May, 1897, the said Nancy Brown and William McGhee appeared in the cause and filed their joint petition, alleging the conveyance to Nancy Brown of the two hundred and fifty acres by deed dated December 16, 1889, and that McGhee owned the three hundred and twelve poplar and seven hun- dred and seventy-three oak trees standing-on said land, and filed the deeds for same as exhibits. The petition also alleged irregularities in the delinquent list and tax sale as to the Brown tract; that Nancy Brown was not served with process, and McGhee was not made a party defendant in the original suit; the sale and purchase by Sampselle. and prayed for process against Sampselle, Hoyle, and Hatfield to answer the petition, and that the decree of sale, the sale, and decree confirming same, be set aside, and for general relief. The appellees appeared, waived service of process, and objected to the filing of the petition, which objection was overruled. Said appellees also moved to strike out said petition, and filed their joint demurrer to the same, which motion and demurrer were overruled; and thereupon they filed their joint answer denying the material allegations of the petitions, and the petitioners replied generally. Depositions were taken, and two amended petitions filed, both of which were objected to, and the objection overruled, in each case. They also moved to strike out and demurred to said amended petitions, which motions and demurrers were overruled; and on January 19, 1898, on motion of said Nancy Brown, each and all of said petitions and the entire proceedings were dismissed as to her, and the court, proceeding to determine the cause as to McGhee, decreed that he was not entitled to the relief prayed for in his petition, and dismissed the same at his costs. The act of Nancv Brown in dismissing her petitions, and the proceedings thereunder as to her, leave the said McGhee as the sole appellant.

The first error assigned by him claimed that the court should have set aside the deed to Sampselle, trustee, the sale and confirmation, and the decree of sale, as clouds upon the title of petitioner to the timber aforesaid, and it erred in not so decreeing. In considering-this assignment of error, I call attention first to the fact that on the face of the deed from Enoch Gibson and wife to Nancy Brown, filed as Exhibit 1 with the petition of Nancy Brown and W. McGhee, there is an exception of all the marked timber (poplar) from 26 inches up, and all the walnut timber and all the mineral rights (as evidently intended by "miner rights"). Now, it appears from the record in this case that the sheriff of Logan County made an attempt, under the provisions of section 18 of chapter 30 of the Code, to return said two hundred and fifty acre tract delinquent for the nonpayment of taxes thereon for the year 1891. That section requires that the sheriff or collector shall, on or before the first Monday in June next succeeding the year for which such taxes were assessed, make alphabetical lists, by districts, of three classes; also, "A list of other real estate which is delinquent for the nonpayment of taxes thereon, which shall be in the same form and with the same oath made and subscribed as in the above first mentioned list." Said sheriff, in this case, in attempting to make out and return his delinquent list, utterly failed to do so within the time and manner prescribed by statute, in that he failed within that time to make...