Mills v. Henry Oil Co.
| Decision Date | 21 February 1905 |
| Citation | 50 S.E. 157,57 W.Va. 255 |
| Parties | MILLS et al. v. HENRY OIL CO. et al. |
| Court | West Virginia Supreme Court |
Submitted February 2, 1905.
Syllabus by the Court.
1. No presumption of payment to the state of taxes on land returned delinquent arises merely from lapse of time.
2. One cannot get the benefit of a forfeited title under the first class of persons specified in article 13, § 3, of the Constitution, who has not had actual continuous possession under color or claim of title, for ten years, and also paid state taxes for some five years during his possession. Nor can he do so under the second class, he either having title which itself is forfeited, or not having paid state taxes for five successive years after 1865, or from the date of his grant, if issued since 1865. Nor can he do so under the third class, if he has not both actual and continuous possession under color of title for some five years in succession after 1865, and paid all state taxes for the period of such possession.
3. One claiming title under a grant of land forfeited for delinquency, issued before July 1, 1850, cannot claim the benefit of a forfeited title under the second class of persons specified in article 13, § 3, Const., his grant being void.
4. A bill in equity to remove a cloud over title to land cannot be sustained, unless the plaintiff have both good title and actual possession. The weakness of the adversary title will not sustain the bill.
5. A decree under section 17, c. 105, Code 1899, fixing the amount for redemption of forfeited land, and declaring the land redeemed and exonerated by payment of such amount actually made, is conclusive to release all title vested in the state by such forfeiture, though taxes of some years were not included, and it cannot be collaterally attacked for error.
Appeal from Circuit Court, Wetzel County; M. H. Willis, Judge.
Action by John Mills and the Kanawha Oil Company against the Henry Oil Company and others. Decree for plaintiffs, and defendants J. E. Bartlett and others appeal. Affirmed.
Hall & Hall, for appellants.
W. T Hubbard, T. P. Jacobs, B. T. Bowers, and Frank V. Iams, for appellees.
BRANNON P.
The state of Virginia, 13th July, 1797, issued a patent or grant to Isaac Hilliard for 9,000 acres of land then in Ohio county, now in Wetzel county, part of which land by various conveyances came to the ownership of John Mills, and by him was leased to the Kanawha Oil Company for the production of petroleum oil and natural gas. That company took possession in 1895, and began oil production. This land was delinquent for taxes, we may say, for 40 years from 1798. On 21st June 1838, a redemption of it was made by payment of the taxes from 1819 to 1837, inclusive. It does not appear that taxes prior to 1819 were paid. In 1898 the state of West Virginia brought suit under chapter 105 of the Code of 1899 against this Hilliard land to sell it for omission, and a sale to the state for some taxes, occurring later in the course of time, and John Mills appeared therein by petition asking leave to redeem the land from forfeiture, and the court made a decree by which it ascertained and fixed the amount of money which Mills must pay to have a redemption of his land, and gave him leave to redeem on payment, and on the 21st day of January, 1898, Mills paid $5,627.02 under such decree, and the court entered a decree saying: "It is further adjudged, ordered, and decreed that by the payment of the said money the said real estate is redeemed by petitioner, John Mills, and that the same stand and be redeemed so far as the title thereto is in the state, and this decree shall operate as a release of all disclaimers heretofore made in the reference thereto, and of all forfeiture and sale of said real estate as set up in the bill of the plaintiff, and of all taxes and interest charged and chargeable thereon." A title hostile to the said Hilliard title comes from a grant by the state of Virginia 1st October, 1849, to Presley M. Martin, described as containing 100 acres, but containing in fact 127 acres. It came to the ownership of Cordelia E. Perdue and others. This Martin tract laps over on the Hilliard land to the extent of 93 acres. This lap of interlock of 93 acres is the land in controversy in this case. This Martin land was off the taxbooks from 1869 for many years, and therefore became forfeited to the state for omission. It was also sold to the state for taxes of 1877 and 1878. Actual possession under the Hilliard title dates back to 1869, and has been continuous since, such possession being not within the interlock. No possession was ever taken under the Martin title of the interlock, if even elsewhere on it. On the 23d day of September, 1899, in a proceeding in the circuit court to subject the Martin land for forfeiture, a redemption was made of the said 93 acres under the Martin grant. The Henry Oil Company, holding a lease for oil and gas of the said 93 acres under the Martin title, went upon the said 93 acres to build derricks and operate for oil, but they were forcibly resisted by the Kanawha Oil Company, which had before that taken possession of the Hilliard land outside the interlock and were operating for oil. The Kanawha Company then took possession of and drilled wells on the interlock. As thus the Henry Oil Company claimed a lease under the Martin title and Cordelia E. Perdue claimed the fee under it, John Mills and the Kanawha Oil Company brought this suit in equity against the Henry Oil Company, Cordelia Perdue, and others, setting up the Hilliard title as the superior title, setting up the Martin claim as bad and inferior, and asking that the Hilliard title be decreed to be the better title, and that the cloud over it arising from the Martin title be removed by decree, and that the Henry Oil Company be enjoined from operating for oil upon the said 93 acres, and from interfering with and obstructing the rights of the plaintiffs under the Hilliard title. A temporary injunction was granted, and a final decree was pronounced perpetuating said injunction as to all the land in controversy lying southeast of a line described on a plat filed in the cause, known as the Hilliard line, and declaring it to be the true line of the Hilliard survey of 9,000 acres, and decreeing that the Henry Oil Company, Cordelia E. Perdue, and others with them claiming under the Martin grant, should be perpetually enjoined from interfering with the possession of the plaintiffs of said 93 acres and their use and operation upon said land, and from conducting any operations thereon for the production of oil or gas, and declaring that John Mills had fee-simple title to said 93 acres, and that the Kanawha Oil Company had a leasehold in it under its lease of the Hilliard land from John Mills. From this decree Cordelia E. Perdue and others have taken an appeal.
It is very clear that the Hilliard 9,000-acre tract became forfeited to Virginia for delinquency for taxes from 1798 down to 1831 under several acts, namely, 13th December, 1792, 29th January,
1803 20th January, 1807, 1st April, 1831 (Acts 1830-31, p. 87, c. 28). Hutchison Land Titles, 4, 5, 29; 2 Rev. Code 1819, pp. 525, 528; Smith v. Tharp, 17 W.Va. 221; Holley River Coal Company v. Howell, 36 W.Va. 489, 15 S.E. 214. Money was paid as for redemption 21st June, 1838; but the taxes paid were, as the document shows, for only certain years--that is, 1819 to 1837, inclusive. That left the taxes of prior years unpaid. As the act of the officer making the computation is only ministerial, I do not suppose that, as it affirmatively appears that taxes for many years were not paid, this redemption is effectual. To meet this point we are told that as to the taxes for years from 1819 back to 1798 we must entertain a presumption of payment from long lapse of time; that, as it appears that some taxes were paid, we are to presume that prior taxes had been paid, and that the presumption of payment would arise from long time in connection with the fact of payment for certain years; but we do not think the proposition tenable. In State v. Jackson (W. Va.) 49 S.E. 465, we held that no presumption of payment of taxes comes from the mere duty of the citizen to pay taxes, and in Smith v. Tharp, 17 W.Va. 221, it is held that mere lapse of time will not raise a legal presumption of payment of taxes on lands returned delinquent, though, in connection with other circumstances, it might justify the jury in finding that the taxes had been paid. There are some authorities to sustain the presumption of...
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