Robinson Imp. Co. v. Tasa Coal Co., CC839

• Decision Date: 17 December 1957
• Docket Number: No. CC839,CC839
• Citation: 101 S.E.2d 67,143 W.Va. 293
• Court: West Virginia Supreme Court
• Parties: ROBINSON IMPROVEMENT COMPANY, a Corporation, v. TASA COAL COMPANY, a Corporation.

Page 67

101 S.E.2d 67

143 W.Va. 293

ROBINSON IMPROVEMENT COMPANY, a Corporation, v. TASA COAL COMPANY, a Corporation.

No. CC839.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 17, 1957.

Decided Dec. 17, 1957.

Syllabus by the Court

1. 'Exhibits filed in support of a pleading are considered parts thereof, and, if they contradict the matters alleged, will control.' Pt. 5, syllabus, Caswell v. Caswell, 84 W.Va. 575, 100 S.E. 482.

2. 'A judgment of a court of competent jurisdiction upon any fact directly put in issue as a ground for recovery cannot be disputed in a subsequent suit between the same parties; and even if the second suit is for a different cause of action the fact once so determined must, as between the same parties, be taken as conclusively established so long as that judgment remains undisturbed.' Pt. 2, syllabus, Zirkle v. Moore, Keppel & Co., 110 W.Va. 535, 158 S.E. 785.

3. The recitals in a deed of a Deputy Commissioner of Forfeited and Delinquent Lands to the effect that, in pursuance of decrees of a court of competent jurisdiction, the real estate described in said deed was sold, the sale confirmed and the deed directed to be made, warrant, in the absence of allegations in the bill of complaint, to which such deed is an exhibit, of facts which show irregularity and invalidity, the presumption that the proceedings in such suit were regular and valid; and the plaintiff in a collateral proceeding attacking the decrees therein is precluded from the right to a decree annulling or holding such deed void.

Walter F. Ball, Ronald R. Hassig, New Martinsville, for plaintiff.

Paul J. Shiben, New Martinsville, for defendant.

DUCKER, Judge.

The plaintiff, Robinson Improvement Company, a corporation, filed its bill of complaint in the Circuit Court of Wetzel County against the defendant, Tasa Coal Company, a corporation, seeking a cancellation of two deeds made to the defendant by the Deputy Commissioner of Forfeited and Delinquent Lands for Wetzel County, West Virginia, to which bill of complaint the defendant demurred. The court overruled defendant's demurrer and certified to this Court the questions of law involved. Although the defendant is the appellant and the plaintiff the appellee here, we shall retain their original designations as plaintiff and defendant for the purpose of referring to them in this opinion.

The bill of complaint alleges: that the plaintiff is the owner of a one-half undivided interest in and to the oil and gas within the underlying two tracts of land consisting of (1) 181 acres and 2,403 square feet, and (2) 311 acres and 20,769 square feet, situate in Grant District, Wetzel County, West Virginia; that plaintiff's title to said tracts of land was derived through a deed from John Orr to L. G. Robinson dated March 2, 1892 and recorded in Trust Deed Book 11 at page 186, conveying a tract of 2,000 acres which, less previous outsale deductions left a net acreage of 1,528 acres, and that by a further conveyance in 1893 to William Carlin of 60 acres the said tract was reduced to 1,468 acres; that by lease dated March 3, 1892, and recorded in Deed Book 36 at page 247, L. G. Robinson and husband leased to South Penn Oil Company a tract containing 1,314 acres in Grant District, and by deed dated April 27, 1894, Deed Book 39 at page 292, L. G. Robinson and husband conveyed unto South Penn Oil Company a one-half interest in the oil and gas in 1685 acres in Grant District, Wetzel County and McElroy District, Doddridge County; that by deed dated August 23, 1905, Deed Book 94 at page 84, L. G. Robinson and husband conveyed to the plaintiff, Robinson Improvement Company, 'this property' without indicating in the bill whether the property so conveyed was 1,468 acres, 1,314 acres or 1,685 acres, except that such conveyance included a 157 acre tract previously excluded from the 2,000 acre Orr tract hereinbefore mentioned; that by deed dated June 4, 1917, Deed Book 125, page 16, Robinson Improvement Company conveyed to John Carlin the 311 acre tract hereinbefore mentioned, and by deed dated April 3, 1918, Deed Book 126, page 226, Robinson Improvement Company conveyed to William Carlin the 181 acre tract hereinbefore mentioned, both of which were carved out of the original Orr tract reserving to Robinson Improvement Company all the oil and gas under said two tracts; that copies of all said deeds and muniments of title are made exhibits with the bill; that said two tracts of 311 and 181 acres, respectively, were from 1918 to 1925, both inclusive, assessed in the name of the plaintiff for taxes in a large tract described as 2,004 1/2 acres, and in 1926 the Land Books of Wetzel County show that a one-half interest in the oil and gas under 1,314 acres was assessed separately to Robinson Improvement Company, which assessment of 1,314 acres plaintiff says included plaintiff's one-half interest in the oil and gas under the 311 and 181 acre tracts; that W. E. Lemon, Deputy Commissioner of Forfeited and Delinquent Lands for Wetzel County, West Virginia, by 'pretended' tax deeds, dated May 24, 1955, recorded in Deed Book 195 at pages 241 and 244 respectively, copies of which are made exhibits with the bill, attempted to convey the one-half undivided interest in the oil and gas in said 311 and 181 acre tracts to defendant, Tasa Coal Company, for the alleged non-payment of taxes returned delinquent for the year 1931 and sold in 1932 to the State of West Virginia; that said oil and gas interests were not, in truth and fact, delinquent and the return so made not correct; that plaintiff has paid and holds receipt for the payment of all taxes on the said tracts for the year 1931 and thereafter, and that plaintiff has promptly paid the taxes upon said land at all times. The bill of complaint does not show the details of the assessments between 1926 and 1929, inclusive, but such is not material to a decision herein.

The two receipted tax tickets, there being no others exhibited by plaintiff with its bill, show oil and gas assessments against plaintiff (1) for the year 1930 a tract of 1,314 acres, and a tract of 311 7/8 acres with an ink or pencil line drawn through that latter one item on the ticket, and (2) for the second half of the year 1932, tracts of 1,314 and 311 acres, respectively.

Our decision in this case really renders unnecessary for inclusion herein of such a detailed statement of the facts alleged as to the title and assessment of the tracts here involved, but we have so made it because it shows the likelihood of error or confusion, both on the part of the plaintiff and the assessing authorities, as to the correct acreages for assessment purposes, and the probable necessity for the determination of all questions of correctness of assessment and delinquency thereof in the suit hereinafter discussed.

In its demurrer, the defendant assigns the following grounds: (1) that the alleged cause of action of plaintiff is barred by the statute of limitations according to Code 11A-3-30, as amended by Chapter 117 Acts of the Legislature, 1941, and Code 11-3-24, 24a, 25, 26 and 27, as amended by Chapter 41, Acts of the Legislature, 1933, Regular Session and by Chapter 123, Acts of the Legislature, 1939; (2) that plaintiff's alleged causes of action have been adjudicated in the suit formerly pending in the Circuit Court of Wetzel County styled State of West Virginia v. Sarah J. Furbee, Robinson Improvement Company and others; (3) that plaintiff is equitably estopped from asserting its causes of action in this suit; (4) that plaintiff's bill shows on its face that the taxes for the year 1931 on each of the two tracts of 181 and 311 acres respectively of oil and gas were not in fact paid; and (5) that there is no equity in the bill.

The trial court's certification of the questions presented is in language almost identical with that contained in the demurrer.

In the opinion of the Judge of the trial court, the reason for overruling defendant's demurrer is mainly based upon the plaintiff's allegation that it had paid all taxes on the tracts here involved, that consequently there was no delinquency, that the state acquired no title by the additional or double assessment, and that therefore the sale of such property therefor is void.

While the first assignment of error which involves the question of the timeliness of the institution of this suit under Code 11A-3-30, as amended by Chapter 117, Acts of the Legislature, 1941, and the failure of the plaintiff to avail itself of the several opportunities to have had a proper assessment of its lands for taxes as provided in Code 11-3-24, 24a, 25, 26 and 27, as amended by Chapter 41, Acts of the Legislature, Regular Session, 1933, and by Chapter 123, Acts of the Legislature, 1939, may or may not be applicable to the case we have here, we are not disposed, in the light of the record and because of our decision herein on the second assignment of error, to pass upon the validity of the questions raised by such first assignment. Nor, for the same reason, is it necessary to decide the questions raised by the defendant's third, fourth and fifth assignments.

The defendant's second assignment of error that the court should have sustained defendant's demurrer, namely, that the plaintiff's alleged cause of action has been adjudicated in the suit formerly pending in the Circuit Court of Wetzel County styled State of West Virginia against Sarah J. Furbee, Robinson Improvement Company and...