Read v. Dingess
Decision Date | 07 February 1894 |
Docket Number | 53. |
Citation | 60 F. 21 |
Parties | READ v. DINGESS et al. |
Court | U.S. Court of Appeals — Fourth Circuit |
Z. T Vinson and J. S. Clarke, for appellant.
N Dubois Miller, James H. Ferguson, and J. F. Brown, for appellee.
Before FULLER, Circuit Justice, and SEYMOUR and SIMONTON, District Judges.
Complainant alleges, among other things, (which it is unnecessary to the opinion to state,) a grant, of date January 21, 1796, of 100,000 acres of land in Virginia, within the boundaries of what is now West Virginia, lying mainly in Logan county, in said state; a forfeiture of the tract under the taxing laws of Virginia, whereby it became vested in the president and directors of the literary fund; an act of the Virginia legislature of March 15, 1838, by which the title of the president and directors of the literary fund was transferred to and vested in one Dumas, in trust for the estate of the former owners of the tract and certain creditors, discharged from all taxes due before 1838; the due appointment of successive trustees of the trust, the last of whom is the complainant, and payment of taxes by trustees for the years 1840-54, inclusive. He states that the land was not charged to the trust with taxes from 1857 to 1860, and that it has never been entered for taxation on the land books of the counties in which it is situated since the organization of the state of West Virginia, (June 20, 1863.) He further alleges that, by reason of such fact, it became liable to be sold by the commissioner of school lands for the benefit of the school fund; that, during the years 1882-88, such commissioner sold various parts of it to defendant, as waste and unappropriated land; and that the school commissioner has since made deeds to him of the same. He further alleges that he has ever since had a right, under the laws of West Virginia, to redeem said land, upon payment of the taxes in arrears, which right, he avers, can only be divested by a sale for the benefit of the school fund, in conformity with the law providing for such sales, and that no such proceedings have been had. He avers, however, that, until the deeds from commissioner to complainant are set aside, he is embarrassed in the exercise of that right. He alleges that the commissioner sold the land as waste and unappropriated without notice to him, for the express purpose of defeating his redemption. His prayer is that the deeds to defendant be set aside and annulled, and that he be put in possession of the land.
The demurrer, among other grounds of demurrer, assigns the following:
The constitution of West Virginia (article 13, § 6) provides as follows:
The legislature of West Virginia has passed several acts providing for the forfeiture of land not entered on the proper books for taxation. The earliest of them is the act of March 4, 1869, the seventh section of which is given:
The constitutional provision is of later date than this statute. The new constitution of West Virginia, which contains it, was adopted in 1872. At the session of the legislature following the adoption of the new constitution, it passed an act to carry into effect article 13, § 6, of the constitution, (Acts 1872-73, c. 134.) The law upon the subject has been certified, and appears in chapter 105 of the Code of West Virginia, (Warths' Code, p. 639, Ed. 1884.)
The right of redemption, as it existed at the commencement of this action, appears in the act of February 21, 1887, as follows:
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