Morgan v. Pool

Decision Date15 June 1915
Citation85 S.E. 724,76 W.Va. 534
PartiesMORGAN ET AL. v. POOL ET AL.
CourtWest Virginia Supreme Court

Submitted May 11, 1915.

Syllabus by the Court.

A former owner who has lost title by forfeiture to the state has no real litigable right in the land while the title is so vested. He can maintain no suit in regard to the land while the state has the forfeited title, other than a petition to redeem filed in the special proceeding therefor provided by statute.

Appeal from Circuit Court, Roane County.

Suit by Amanda J. Morgan and others against W. P. Pool and others. From decree for defendants, plaintiffs appeal. Modified and affirmed.

R. E Bills, of Parkersburg, and J. W. Lance and Ryan & Boggess all of Spencer, for appellants.

Pendleton Mathews & Bell, of Spencer, for appellees.

ROBINSON P.

Amanda J. Morgan and husband conveyed to Pool a small parcel of land. By this suit they seek to cancel the conveyance as having been obtained from them by deception and fraud. Having been denied relief by the circuit court, they have appealed.

By the pleadings and proof it appears that plaintiffs did not own the land when they conveyed to Pool and would not own it now if the conveyance was canceled. Long before the conveyance to Pool, plaintiffs had allowed the title to the land to become forfeited to and vested in the State. It has not been redeemed. The State has the title. Plaintiffs have no title. The most that they have is a mere grace to redeem. Of that they have not availed themselves. They lost nothing by the conveyance to Pool, and he gained nothing thereby, unless it be that the conveyance operated to transfer from the one to the other the mere privilege of redemption which the law accords. Whether it so affected the privilege of redemption, we do not decide. That question belongs to another proceeding--the one which the law has specially prescribed for praying redemption of lands. The land cannot be redeemed in this suit. It can only be redeemed in a suit pursuant to the provisions of Code 1913, ch. 105. Until the land is redeemed pursuant to law, neither plaintiffs nor Pool have the least title to it. Nor do we know that they will ever ask the privilege of redemption. Besides, the State may transfer the title so that the privilege to them will be forever gone.

All this being true, what have plaintiffs and Pool to litigate about in this cause? Assuredly nothing. Shall plaintiffs be given a remedy when they have no right? Before they can have what they pray for herein, they must show that the land is theirs, clouded by a deed obtained from them by fraud. A court of equity is not open to do a vain thing. A cancellation of the deed to Pool will not give them the land. Were we to cancel the deed, the land would still belong to the State, and plaintiffs would have nothing more than they now have. It may be said that they should be allowed to have the conveyance canceled so as to settle that they may redeem. But the question who may exert the mere privilege of redemption which the law in its grace accords, belongs exclusively to a suit instituted by the commissioner of school lands. The privilege to redeem has been extended in no other way by the law. A reading of Code 1913, ch. 105, will disclose the policy of confining the question of redemption to the proceeding provided for therein....

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