Neal v. Wilson et alsK.

• Decision Date: 30 January 1917
• Docket Number: No. 3231.,3231.
• Citation: 79 W.Va. 482
• Court: West Virginia Supreme Court
• Parties: Neal v. Wilson et alsK.

79 W.Va. 482

Neal

v.Wilson et alsK.

No. 3231.

Supreme Court of Appeals of West Virginia.

Submitted January 23, 1917.

Decided January 30, 1917.

1. Taxation Sale Validity '' Known Claimant.''

A former owner or claimant of land, having the right of redemption, whose claim is disclosed by the records of the clerk's office of the county court, is a known claimant, within the meaning of Sec. 6, Ch. 105, Barnes' Code, and should be made a party to a suit of the commissioner of school lands for the sale thereof, and, if a resident of the state, served with process. The failure to make such person a party and serve him with notice renders the sale and deed to the purchaser, made in pursuance thereof, void as to him, unless he has voluntarily come into such suit by petition, (p. 484).

2. Same Delinquent Tax Sale 'Resale-Parties to Suit.

Where the State's title is derived from a tax sale, made in the name of a former owner, but after he had conveyed the land to another who records his title, such grantee should be made a party to the suit of the commissioner of school lands. In such case, the grantee's claim being adverse, as well as superior to that of the former owner, making such former owner a party does not dispense with the necessity of making his grantee a party also, (p. 448).

3. Same Land Sold for Taxes Conveyance by State.

Land purchased by the State at a delinquent tax sale requires no formal conveyance to pass title thereto. The statute, Sees. 25 and 32, Ch. 31, Code, vests in the State such right, title and interest in and to the land as was vested in the person charged with the taxes for which it was sold, at the commencement of, or at any time during the year or years for which said taxes were assessed, (p. 486).

4. Same Tax Sale-Redemption.

The right of redemption is such a substantial equity, or property right, as entitles the owner thereof to file a petition in a school commissioner's proceeding, to have annulled a void decree rendered therein for the sale of land, in respect to which such right to redeem is given, and a deed made to a purchaser in pursuance thereof cancelled. In such proceeding the petitioner may be allowed to redeem, provided title to the land is then in the State, (p. 486).

Appeal from Circuit Court, Wood County. Suit by Olin V. Neal against F. S. Wilson and others. From decree for plaintiff, defendants appeal.

Affirmed.

Wm. Beard and Bruce F err ell, for appellants. Merrick & Smith, for appellee.

Williams, Judge:

Plaintiff brought this suit in chancery against F. S. Wilson, W. E. Bee, Sarah C. Ferrell, and John T. Cooper, late commissioner of school lands of Wood county, and H. B. Dodge, the present commissioner of school lands for said county, praying that certain proceedings brought by the first named school commissioner, in which a certain lot of land, designated as lot No. 3 in E. G Martin's Addition to Maplewood, a suburb of the City of Parkersburg, was sold and a deed therefor made, pursuant to a decree entered therein, to the three first named defendants, be annulled, and that plaintiff be granted the right to redeem said lot from the State. From a decree granting relief to plaintiff defendants Wilson, Bee and Ferrell have appealed. It being a rule of

equity practice to consider the substance rather than the form of a pleading, plaintiff's bill may properly be regarded as a petition filed in the school commissioner's proceeding.

A. H. Martin owned the lot and, on February 5, 1907, conveyed it to plaintiff and J. W. Wolfe, and, on February 3, 1909, said Wolfe conveyed his undivided interest to plaintiff. Since, and including the year 1907, all taxes charged and chargeable against the lot have been regularly paid by plaintiff. But the taxes assessed on it for the year 1906, in the name of A. H. Martin, who was then the owner, were not paid, and the lot was returned delinquent for the nonpayment of that year's taxes, and was sold in the month of January, 1909, and purchased by the State. In 1911 a suit was instituted by John T. Cooper, commissioner of school lands, in the name of the State against Minnie Burge, and others, to sell a number of tracts and lots of land, title to which was alleged to be in the State, among them the lot in question. Pursuant to that proceeding the lot was sold to appellants and a deed therefor made to them by a special commissioner on the 1st day of July, 191.2. Martin's deed to plaintiff and Wolfe was recorded September 5, 1907, and Wolfe's deed to plaintiff for his undivided interest, on February 4. 1909.

The bill does not assail the regularity of the tax sale, and admits the legal title to be in the State, by virtue of its tax purchase. There is no controversy as to the facts, and only legal questions are presented. Logically the first one to be determined is, can plaintiff maintain this suit? The answer to this question depends upon whether plaintiff had such a substantial property right or interest as entitles him to be heard, and, if he once had such right, whether he is estopped to assert it on account of his failure to make it known in the school commissioner's proceeding. Taking up these questions in their inverse order, let us first determine whether he is estopped by the sale and conveyance to appellants in the school commissioner's proceeding. Plaintiff was a resident of Parkersburg during that proceeding, and for many years prior thereto. His deed was recorded before that proceeding was begun, and the land books showed a transfer of the lot from Martin to him. At that time Martin, his grantor, was a non-resident. Such was the situation of the parties and the nature of plaintiff's claim when the school commissioner's proceeding was begun. Martin was made a party, and served by order of publication, but plaintiff was not named in the bill nor served with process, and had no knowledge of the pendency of that suit until after the land had been sold and conveyed to appellants. It is apparent that a mere casual examination of the record would have disclosed plaintiff's claim and, therefore, his right to be made a party. Sec. 6, ch. 105, Code, provides that, in a proceeding to sell the State's lands, the former owner, and "all persons claiming title to or interest in any such lands shall, also, as far as known, be made defendants therein." In this case, it was more important that plaintiff should have been made a party than it was that Martin should have been made a party, for the reason that Martin had conveyed his title to plaintiff, thereby giving him the right to redeem. Plaintiff should have been made a party and, being a resident of the county, served with notice in order to give him an opportunity to redeem his land. The fact that his claim may not have been known to the school commissioner does not excuse that officer's failure to make him a party. It was his duty to ascertain his interest from the records, as it was of such character as to be discovered by the exercise of reasonable diligence. Plaintiff must, therefore, be regarded a known claimant, and entitled to be served with process. The failure to give him notice and an opportunity to redeem, renders void the decree for the sale of his lot and the deed to appellants in pursuance thereof. That proceeding did not invest appellants with the title, but left it in the State. Preston v....