Pearson v. Dodd, 13257

CourtSupreme Court of West Virginia
Citation159 W.Va. 254,221 S.E.2d 171
Docket NumberNo. 13257,13257
PartiesCecle G. PEARSON v. W. P. DODD et al. and Columbia Gas Transmission Corporation.
Decision Date19 December 1975
Syllabus by the Court

1. 'To justify the application of the doctrine of Res judicata, '* * * there must be a concurrence of four conditions, namely: (1) identity in the thing sued for; (2) identity of the cause of action; (3) identity of persons, and of parties to the action; (4) identity of the quality in the person for or against whom the claim is made.' Opinion. Marguerite Coal Co. v. Meadow River Lumber Co., 98 W.Va. 698 (, 127 S.E. 644).' Syllabus, Hannah v. Beasley, 132 W.Va. 814, 53 S.E.2d 729 (1949).

2. Delinquent lands are those upon which the owners have failed to pay property taxes and which have been listed by the sheriff as delinquent and, at public sale, sold by him to individuals or purchased by him for the State.

3. Forfeited lands are those which the owners have failed to enter for assessment on the land books and for which no property taxes have been paid for five consecutive years; when both events occur, the State's title arises and perfects by operation of law.

4. Under W.Va.Code 1931, 11A--4--39a, as amended, an erroneous entry on the land books cannot result in forfeiture provided the identity of the land intended by such entry can be ascertained.

5. Under W.Va.Code 1931, 11A--4--33, as amended, a purchaser at a tax sale, who has obtained a deed to the State's title from the deputy commissioner, has a perfect title to the property interest sold by the State, unless the former owner of the interest, being one required by law to have his interest separately assessed and taxed, has done so and has paid all taxes due thereon or unless the rights of such former owner are saved expressly by the prohibition of W.Va. Code 1931, 11A--4--27, as amended, or protected by reason of such person's disability, as recognized in W.Va.Code 1931, 11A--4--34, as amended.

6. Inasmuch as the primary purpose of the notice requirement contained in W.Va.Code 1931, 11A--4--23, as amended, is to encourage attendance and bidding at the tax sale, a failure to comply literally with such provision does not inure to the benefit of a former owner of property sold at the tax sale.

7. 'An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873 (1950).

8. The Fourteenth Amendment's protection of 'property' extends protection to any significant property interest, including statutory entitlements. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972).

9. W.Va.Code 1931, 11A--3--8, as amended, gives a former owner of delinquent land whose interest is not otherwise saved and protected, a statutory entitlement, that is, a right to redeem the land which he formerly owned, at any time within eighteen months of the date of the State's purchase of the property. If redemption does not occur within such period, then this right no longer exists, because absolute title has vested in the State.

10. The State cannot sell interests in land in an action authorized by W.Va.Const., Art. XIII, § 4 unless the former owner's interest in property is then irredeemable and the State's title is vested and perfected.

11. W.Va.Code 1931, 11A--4--18, as amended, gives a former owner of delinquent land the opportunity to petition the circuit court for permission to redeem such land at any time before confirmation of sale. Under this provision, it is purely discretionary with the court whether to accede to the redemption request.

12. The mere opportunity to redeem under W.Va.Code 1931, 11A--4--18, as amended, is extended to a former owner by the Legislature as an act of grace. This opportunity does not give, or restore to, a former owner a significant property interest nor accord him the status of an 'interested party' in the circuit court sale, so as to invoke the constitutional protections of due process.

13. 'While a court is not compelled to accept legislative statements of intent and findings of facts when the statements contained therein are not warranted in law, such statements are entitled to great weight in support of the presumption that the Legislature does not intend to offend the requirements or inhibitions of the West Virginia Constitution.' Syllabus point 2., State ex rel. Goodwin v. Rogers, W.Va., 217 S.E.2d 65 (1975).

14. The determination of the State to dispose of its vested interest in forfeited and delinquent lands, to authorize a judicial sale by civil action pursuant to W.Va.Code 1931, 11A--4--1 Et seq., as amended, and to proceed such action by order of publication in the names of former owners so as to identify the interests to be sold, does not violate the Due Process Clauses of the West Virginia and United States Constitutions, as respects such former owners.

15. Syllabus point 9. prefixed to the decision of Work v. Rogerson, 149 W.Va. 493, 142 S.E.2d 188 (1965) is disapproved to the extent that its holding fails to distinguish the redemptive right which is a statutory entitlement under W.Va.Code 1931, 11A--3--8, as amended, and the mere opportunity to petition for redemption which is an extension of legislative grace under W.Va.Code 1931, 11A--4--18, as amended.

Rex Burford, Charleston, for appellant.

William E. Hamb and Joseph F. Wagner, Charleston, for Dodd.

Wm. Roy Rice, Daniel L. Bell, Jr., Thomas E. Morgan, Charleston, for Columbia Gas Transmission.

HADEN, Chief Justice:

This is an appeal from a final order of the Circuit Court of Kanawha County which held that the appellant, Cecle G. Pearson, did not own any part of the oil and gas interest contended for in her action to quiet title against the appellees, W. P. Dodd, Ernestine Dodd, his wife, and Columbia Gas Transmission Corporation.

The facts in this case are essentially undisputed. By a deed from her son, H. C. Pearson, Jr., dated February 20, 1937 and recorded August 9, 1937, the appellant acquired a full one-fourth of all the oil and gas in sixty-eight acres of land, known as the Sarah A. Null tract, located in Union District, Kanawha County. The appellant did not enter her name into the land books and thus, the assessment involved in this action appeared under Union District, Kanawha County, as follows:

                '1938   O'Dell,   W. H.  (predecessor in
                                    title to H. C. Pearson
                                    Jr.) and H. C. Pearson
                                    Jr. 1/2 O & G Int 68A
                                    Wts Martins Br
                 1939)  Pearson,  H. C. Jr. 68 A. 1/4 O
                 thru)              & G Int Wts Martins Br.
                 1944)  Pearson,  H. C. Jr. 68 A. 1/8 O
                 thru)              & G Int Wts Martins Br.
                 1958)  Pearson,  H. C. Jr. 68 A. 1/8A O
                 thru)              & G Int Wts Martins Br.'

Although the tax tickets contained the name of H. C. Pearson, Jr., the senior Mr. Pearson, appellant's husband, paid the taxes for his wife's mineral interest in the Sarah A. Null tract from the time of the first assessment in 1938 until 1960. H. C. Pearson, Jr. died in 1958; the taxes for that year were assessed and paid in his name. The 1959 and 1960 taxes, likewise assessed, were paid also. In 1961, because of an oversight, Cecle Pearson failed to pay the real estate taxes on this interest. As a result, the assessment went delinquent, and in 1962, the property was sold to the State. In 1964, the property was certified by the State Auditor. Two years later the Deputy Commissioner of Forfeited and Delinquent Lands for Kanawha County instituted a suit, in the name of the State of West Virginia, for the sale of this and other delinquent lands. By a tax deed, the purchaser, W. P. Dodd, was conveyed '68 Acres, 1/8 Acre Oil and Gas interest, . . . being the same property conveyed to H. C. Pearson, Jr., by W. H. O'Dell . . . in Deed Book 428, at page 53. . . .'

The only notice given of the sale of this delinquent land was by way of publication in the Charleston Daily Mail and the Charleston Gazette on April 16 and April 23, 1966. The public notice misdescribed the interest as '68 Acres, 1/8 Acre oil and gas interest' and listed the former owner as 'H. C. Pearson, Jr.' (Emphasis supplied). The Dodds obtained the tax deed on April 26, 1966 for $30.00. After ratifying a former lease agreement with Columbia Gas, the Dodds granted Columbia Gas the right to drill a gas well in 1967. In late March of 1968, at a cost of $104,500.87, Columbia Gas completed the well on the 68 acres in question with an initial open flow of one hundred million cubic feet of Newburg gas. On July 26, 1968, Cecle G. Pearson paid the State Auditor $101.86 in an attempt to redeem her interest which, she asserted, had forfeited for non-entry for the years 1938 to 1968. Cecle G. Pearson then commenced this action against the Dodds and Columbia Gas on October 15, 1968.

The appellant has assigned several errors as grounds for reversal, but the ultimate issue in the case remains as the parties agreed by the circuit court order of July 9, 1971:

'(W)hether or not the plaintiff, Cecle G. Pearson, owns all or any part of the oil and gas interests asserted in the complaint filed herein, and whether or not the tax deed described in the complaint filed in this action and the other instruments based thereon, be set aside as a cloud upon the title of the plaintiff in and to the same oil and gas interest.'

For reasons which shall appear, this Court is of the opinion that the appellant owns no part of the mineral interests in the subject property, and thus, that the decision of the Circuit Court of Kanawha County is correct.

The Court believes that the following questions, raised by ...

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