Old Dominion Bldg. & Loan Ass'n v. Sohn

• Decision Date: 14 November 1903
• Citation: 54 W.Va. 101,46 S.E. 222
• Court: West Virginia Supreme Court
• Parties: OLD DOMINION BUILDING & LOAN ASS'N . v. SOHN.

46 S.E. 222

54 W.Va. 101

OLD DOMINION BUILDING & LOAN ASS'N .

v.SOHN.

Supreme Court of Appeals of West Virginia.

Nov. 14, 1903.

TAX SALES—SEPARATE PART OF LOT—VALIDITY — DEED — CONSTRUCTION OF STATUTE — RIGHT TO OFFICE — NOTARY — JUDGE — ACKNOWLEDGMENT.

1. A separate part of a city, village, or town lot cannot be sold under the provisions of chapter 31 of the Code of 1899. As to such lot, the sale must be of the whole lot or of an undivided interest therein.

2. Where the sale, as to such lot, is described in the memorandum of sale as "1/2 of lot 35x120, " and in the report of sale as "1/2 lot, " the quantity sold is an undivided one-half of the lot.

3. In such case the purchaser must cause a survey and report to be made by the county surveyor before obtaining a deed; but the provision of section 17, c. 31, of the Code of 1899, requiring division of the land, is not applicable. It applies only to purchasers of separate quantities or parts of tracts of land, other than city, village, or town lots.

4. Power to sell real estate for nonpayment of taxes must be expressly conferred by law.

5. If the sense of a statute be doubtful, such construction should be given, if possible, as will not conflict with general principles of law.

6. Of two constructions of a statute, either of which is warranted by the words of an amendment, that is to be preferred which best harmonizes with the general tenor and spirit of the act.

7. In construing a statute every word in it must be given its full effect, if that can be done consistently; but, if full effect cannot be given, it must be made effective as far as possible.

8. A statute may be construed contrary to its literal meaning, when a literal construction would result in an absurdity or inconsistency, and the words are susceptible of another construction which will carry out the manifest intention of the Legislature.

9. Words in different parts of a statute must be referred to their proper connections, giving each in its place its proper force.

10. The offices of notary public and judge of a criminal court are incompatible.

11. One who forfeits his right to an office of which he is the incumbent, by accepting another which is incompatible with it, and afterwards performs the functions of the office forfeited, is an officer de facto, and his acts, done before removal from such office, are valid as to persons other than himself.

12. A certificate of acknowledgment, made by a notary public who had accepted the office of judge of a criminal court, is valid.

(Syllabus by the Court.)

Appeal from Circuit Court, Mercer County; J. M. Sanders, Judge.

Bill by the Old Dominion Building & Loan Association against Nathan Sohn. Decree for plaintiff, and defendant appeals. Re-versed.

H. A. Ritz and J. M. McGrath, for appellant.

W. Walter McClaugherty, for appellee.

POFFENBARGER, J. On the 12th day of December, 1899, Nathan Sohn purchased a lot in the city of Bluefield, as delinquent for the nonpayment of the taxes thereon, at a sale made by the sheriff of Mercer county. In the memorandum and receipt given to him by the sheriff, and in the sheriff's report of sale, said lot is described as having been sold in the name of Irene Cooper for the nonpayment of the taxes thereon for the year 1897, as being 35 by 120 feet in size, and situated in Bluefield. In the memorandum and receipt the quantity of land sold is designated as "1-2 of lot 35x120 Blue-field, " and in the report of sale as "1-2 lot." On the 22d day of December, 1900, J. W. Bailey, deputy for E. W. Bailey, surveyor of lands for said county, made a report to the clerk of the county court, which was admitted to record, describing the lot by its location and bounds and record evidence of title, and further showing that there is a house situated on it, that it is impossible to lay off, to said Sohn, the interest purchased by him, without running through said house, and that he, the surveyor, had made no division of said lot. On the 20th day of February, 1901, the clerk of the county court of said county made a deed to Sohn, reciting the delinquency and sale of the land, the purchase by Sohn of "an undivided one-half interest" in said lot the lapse of more than one year since the time of said purchase, the nonredemption of said lot, and the report made by the surveyor.

This suit was brought by the Old Dominion Building & Loan Association to set aside said deed as illegal and void for the following reasons: First that under his purchase, Sohn was not entitled to have a deed for an undivided one-half of the lot, but only for one-half of the lot according to area, not value, and so laid off as not to include the improvements, if practicable; second, that Hugh G. Woods, before whom the deed was acknowledged as a notary public, had, before the date of said acknowledgment vacated his office by accepting the office of judge of the criminal court of said county, and had no authority to take the acknowledgment; third, that in fact said lot was not delinquent for nonpayment of taxes for the year 1897, as all taxes thereon for said year had been paid.

There was a demurrer to the bill, which the court overruled, and then the defendant answered, and depositions were taken, and upon the hearing the plaintiff tendered the amount of taxes, interest, and costs whichthe defendant had paid to the sheriff, with interest at 12 per cent. per annum on the aggregate, and offered to pay any additional costs or charges to which the defendant might be entitled, which tender and offer the defendant declined, and thereupon the court entered a decree setting aside the deed, from which decree the defendant has appealed.

In determining whether the purchaser was entitled to a deed for an undivided one-half of the lot, it is necessary to consider the statute governing the sales of delinquent town lots and the execution of deeds therefor. As they now stand sections 8, 17, 19, and 24 of chapter 31 of the Code of 1899, relating to these subjects, are inconsistent and contradictory. To be more explicit, it may be said that section 17 is contradictory of the other sections named. Section 8, prescribing what shall be sold, says: "The sale shall be of each tract of land, or city, village, or town lot, or of such separate quantities or parts of such tract, or of such undivided interest in such lot as shall be sufficient to satisfy the whole of the taxes." This statute separates real estate into two classes-tracts of land and lots. Tracts may be sold in their entirety, or separate quantities, or parts thereof, may be sold. City, village, or town lots may be sold in their entirety, or undivided interests therein may be sold, but there is no provision for the sale of separate quantities or parts of town lots.

Past legislation on this subject makes this interpretation of the statute clear. Section 6 of chapter 37 of the Code of 1860 of Virginia (Code 1868, W. Va. c. 31, § 8) reads as follows: "The sale of tracts of land shall be of each tract separately, or of such quantity or part thereof, as shall be sufficient to satisfy the taxes thereon, with interest and commission as aforesaid, and its proportion of said expense; and the sale of town lots, shall be of each lot separately, or of such undivided interest therein as shall be sufficient to satisfy the taxes thereon, with such interest, commission, and proportion of expense." This section was amended by chapter 206, p. 258, of the Acts of 1871, and made to read in part as follows: "The sale shall be of such tract of land, or town lot, or of such separate quantities or parts of such tract or undivided interest in such lot as shall be sufficient to satisfy, " etc. Chapter 117, p. 312, of the Acts of 1872-73 re-enacted said section as found in the Acts of 1871, in so far as it relates to the sale; and chapter 130, p. 391, of the Acts of 1882 amended and re-enacted said section 8, and made it read as it now stands in the Code. That section, read in the light of said previous legislation, and the history of legislation concerning the mode of making sale of delinquent lands and lots, as well as by its terms, clearly means that each town lot shall be sold as a whole or an undivided interest therein shall be sold, and gives no authority for selling a separate quantity or part thereof.

Section 19 of chapter 31 of the Code of 1899 prescribes the form of the deed to be made by the clerk of the county court to the purchaser in the case of a sale of a tract of land or a part thereof. The final clause of that section says: "If the purchase was of a city, town or village lot, or a part thereof, or an undivided interest therein, the above form must be varied according to the facts."

Section 24 says that a deed may be made for an undivided interest in a town lot. The first part of that section reads as follows: "Where two or more tracts or parts of tracts, or city, town or village lots, charged to the same person, or persons, with taxes, for the same year, or years, shall have been sold for taxes and purchased by the same person at such sale, the purchaser thereof, or his heirs, devisees or assigns may obtain from the clerk of the county court several deeds for each tract or part of a tract, and city, town, or village lot, or undivided interest therein, or for any number of them less than the whole, or he may obtain one deed for the whole of them as he may prefer; but every such deed shall describe each tract and part of a tract, and each lot and undivided interest in a lot separately; and such deed when so made for several tracts and parts of tracts, and several lots and undivided interests in several lots, shall be as valid and as effectual to pass to the grantee therein the title, legal and equitable to every such tract, and part of a tract, and to every such lot and undivided interest in a lot, as a separate deed for each would have been if such separate deed had been made to such grantee."

The form of deed prescribed by section 19, applicable to...