Shaffer v. Mareve Oil Corp., 13325

• Decision Date: 03 May 1974
• Docket Number: No. 13325,13325
• Citation: 157 W.Va. 816,204 S.E.2d 404
• Court: West Virginia Supreme Court
• Parties: George F. SHAFFER et al. v. MAREVE OIL CORPORATION, a corporation, and Evmar Oil Corporation, a corporation v. Ella J. MARLOWE, Executrix, etc., et al.

Page 404

204 S.E.2d 404

157 W.Va. 816

George F. SHAFFER et al. v. MAREVE OIL CORPORATION, a corporation, and Evmar Oil

Corporation, a corporation v. Ella J. MARLOWE, Executrix, etc., et al.

No. 13325.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 15, 1974.

Decided April 2, 1974.

Rehearing Denied May 3, 1974.

Syllabus by the Court

1. Lack of compliance with the provisions of Code 1931, 11A--3--20, as amended, requiring the tax purchaser to search the records to ascertain the true owners of the real estate sold for nonpayment of taxes, is a jurisdictional defect not validated by the presumption and curative language contained in Sections 28 and 29 of Article 3, Chapter 11A, Code, 1931, as amended.

2. An attack upon the validity of a tax deed which is grounded upon a failure to comply with the requirement of Code, 1931, 11A--3--20, as amended, relating to the tax purchaser's duty to furnish a list of the true owners of the real estate for the purpose of serving notice, is barred by the provisions of Code, 1931, 11A--3--31, when more than three years have elapsed since the tax sale.

3. Curative statutes, enacted for the purpose of giving validity to tax deeds, do not apply to jurisdictional defects because they automatically deprive a former owner of his rights, whereas short statutes of limitations may prevent an attack on such defects in tax deeds since a defaulting landowner is afforded a reasonable time in which to protect his interest.

4. Chapter 11A of Code, 1931, as amended, was enacted in furtherance of the public policy requiring every taxpayer to bear his share of taxes and favoring the certainty and security of land titles.

5. The statutory provisions of Sections 31 and 32 of Article 3, Chapter 11A, Code, 1931, as amended, which limits the time to institute an action to set aside a tax deed, are reasonable time limitations and are not violative of the Due Process Clause of the Fourteenth Amendment of the Constitution of the United States.

6. Possession of the real estate by the tax purchaser is not necessary to commence the running of the short statute of limitation provisions contained in Sections 31 and 32 of Article 3, Chapter 11A, Code, 1931, as amended.

H. D. Rollins and J. Edward Litz, Charleston, for appellants.

Robert J. Louderback, Charleston, for appellee (Marlowe).

Stone, Bowles, Kauffelt & McDavid, P. Michael Pleska and F. T. Graff, Jr., Charleston, for appellee (Mareve Oil).

SPROUSE, Justice:

This case is before the Court upon an appeal from a judgment of the Circuit Court of Kanawha County in an action instituted by the heirs at law (including the successors of one heir) of A. J. and Eliza Shaffer for an accounting of oil sold and produced from wells on a certain tract of land in Kanawha County. The action was instituted against Mareve Oil Company and Evmar Oil Corporation, as defendants. The defendant oil companies, by a third party complaint, sought indemnification from Ella J. Marlowe, devisee and executrix of the estate of B. F. Marlowe. The circuit court entered judgment in favor of the defendants and dismissed the third party complaint. From that action, the plaintiffs seek an appeal.

The questions presented for decision involve a determination of the validity of a tax deed to the mineral interest in the 29 acre tract of real estate issued to B. F. Marlowe, and the effect of a subsequent redemption from the State Auditor of the same interest by the plaintiffs as former owners.

A. J. Shaffer died intestate in 1916 leaving six children and his wife, Eliza Jane, surviving. The widow, Eliza Jane Shaffer, married one J. B. Nichols in 1939 or 1940. She died on August 18, 1942. After the death of Eliza Jane Shaffer Nichols, the mineral ownership of the 29 acres was in the Shaffer heirs.

The Shaffers paid taxes on the property until 1944 when the property was returned delinquent and sold by the sheriff on December 10, 1945 to B. F. Marlowe. On June 2, 1947, Marlowe, who is now deceased, procured a tax deed from the Clerk of the County Court of Kanawha County which purports to convey to him the mineral interest in the 29 acre tract of real estate.

Chapter 11A, Article 3, Section 20, Code, 1931, as amended, requires a purchaser at a tax sale, among other things, to search the title records to ascertain the owners of the delinquent property and furnish their names to the county clerk. Sections 23 and 24 of that article, among other things, require the clerk to have notice served on the owners of the real estate or their heirs.

There is no dispute as to the essential facts. Marlowe, in attempting to comply with the provisions of Section 20, examined the title of the involved real estate interest and certified to the county clerk that the owners were Eliza Shaffer and J. B. Nichols. At the time of the tax sale, Eliza Shaffer had been dead for over three years and her heirs were the owners of the real estate interest. Notice was served by publication upon the deceased, Eliza Shaffer, and no notice, constructive or otherwise, was served upon the heirs or others.

Marlowe has paid the taxes on the property since 1945. It is stipulated that no one has been in physical possession of the minerals until the defendant oil companies drilled producing oil wells in 1968 under the authority of leases from the plaintiffs and also from B. F. Marlowe.

On December 8, 1971, the Shaffer heirs, claiming that the mineral interest of the 29 acres had forfeited to the State for non-entry during the period of 1944 to 1971, inclusive, redeemed the land from the State Auditor by paying the accumulated taxes, interest and certification fee.

The defendant oil companies successfully drilled an oil well on the involved properties under leases from the Shaffer heirs and from Marlowe. The basic dispute is to whom the oil royalties are to be paid--to the Shaffers or to Marlowe's estate.

The plaintiffs attack the validity of the defendant's tax deed, alleging it is void because of Marlowe's admitted failure to comply with the requirements of Code, 1931, 11A--3--20, as amended.

The defendant admits that by B. F. Marlowe's furnishing the inadequate list of owners to the clerk, the tax deed was originally defective. She contends, however, that the plaintiffs are prohibited from bringing this action attacking the tax deed by several provisions of Code, 1931, 11A--3, as amended, including Sections 31 and 32. The latter two sections contain a special statute of limitations barring an attack upon a tax deed after the expiration of a three-year period following the tax sale. This action was commenced approximately 26 years after the tax sale.

Section 31 provided in pertinent part:

'Whenever the clerk * * * has delivered a deed to the purchaser * * * who was not entitled thereto either because of his failure to meet the requirements of section twenty of this article * * * his heirs and assigns, or the person who redeemed the property, may, on or before December thirty-first of the third year following the sale, institute a suit in equity to set aside the deed. * * *'

Section 32 contained a similar provision:

'If any person entitled to be notified * * * is not served with the notice as therein required, and does not have actual knowledge that such notice has been given to others in time to protect his interests by redeeming the property, he, his heirs and assigns, may, on or before October thirty-first of the third year following the sale, institute a suit in equity to set aside the deed. * * *'

The plaintiffs counter by admitting that they would be barred from attacking the Marlowe tax deed by the three year statute of limitations if the defects were procedural in nature, but contend that the defects are jurisdictional and that a statute of limitation cannot bar an action to set aside a tax deed where it is originally void because of a jurisdictional defect. The plaintiff cites two cases to support this contention: Gates v. Morris, 123 W.Va. 6, 13 S.E.2d 473 (1941) and Stiles v. Layman, 127 W.Va. 507, 33 S.E.2d 601 (1945). Both cases involve tax sales which occurred prior to March 6, 1941--the date when applicable statutes were extensively revised by the legislature.

Gates v. Morris, Supra, involved a case similar to the one we are considering. The land was listed in the name of the deceased and prior to issuing title, the clerk served notice by publication directed only to the deceased and not to the heirs. The statute in effect at that time, Code, 11--10--22, provided that the title would be valid 'notwithstanding any irregularity in the proceedings under which the same was sold, not herein provided for, unless such irregularity appear on the face of such proceedings of record in the office of the clerk of the county court.' This section also provided: 'But no sale or deed of any such real estate under the provisions of this article shall be set aside, or in any manner affected by reason of the failure of any officer mentioned in this article to do or perform any act or duty herein required to be done or performed by him after such sale is made, or by the illegal or defective performance, or attempt at the performance, of any such act or duty after such sale, * * *.' The Court held, however, that since lack of notice was a 'total omission' and not a 'mere irregularity,' this was a jurisdictional defect not validated by the curative provisions of that section. Stiles v. Layman, Supra, contained a similar holding but its final disposition turned on other grounds.

The defendant agrees that if the present case were controlled by Gates and Stiles, the plaintiffs' action would not be barred and her tax deed could be successfully attacked in this proceeding. The defendant argues, however, and the trial court agreed, that the effect of Gates and Stiles as it pertains to the issue involved here was vitiated by the act of the legislature in revising all of the procedures relating to the sale...