Sheffey v. Davis Colliery Co.

• Decision Date: 25 April 1913
• Citation: 204 F. 337
• Parties: SHEFFEY et al. v. DAVIS COLLIERY CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

204 F. 337

SHEFFEY et al. v. DAVIS COLLIERY CO. et al.

United States District Court, N.D. West Virginia.

April 25, 1913

Davis &amp Davis, E. B. Templeman, and D. E. Swartz, all of Clarksburg W. Va., and H. G. Kump, of Elkins, W. Va., for plaintiffs.

W. B. &amp E. L. Maxwell and E. A. Bowers, all of Elkins, W. Va., for defendants.

DAYTON District Judge.

Hugh W Sheffey, resident of the state of Virginia, died intestate in 1889, seized of a tract of near 5,000 acres of unimproved land in Randolph county, this state. His law partner, James Bumgardner, Jr., qualified in Virginia as his administrator. His brothers, sisters, and children of his deceased brothers and sisters constituted his heirs at law. In June, 1892, Bumgardner, his administrator, and Maggie Sheffey, daughter of one of his heirs, purporting to represent the other heirs, entered into a contract with O. C. Womelsdorf to sell to him this tract of land at the price of $3 per acre, and, as some of the heirs were infants, to secure a ratification and confirmation of such sale in proper judicial proceedings to be instituted in the circuit court of Randolph county. Such proceedings were instituted in the name of Andrew J. Long, administrator, then sheriff of the county, to whom the estate was committed, and said sale was made, ratified, and confirmed by decrees entered therein, and the land conveyed to Womelsdorf by a commissioner of the court, appointed for the purpose. This suit was, in October, 1910, instituted by the heirs of Sheffey, to set aside, cancel, and annul the decrees, and the deeds of Womelsdorf and his subsequent grantees, as constituting cloud upon plaintiffs' title. The legal proceeding is assailed as void for want of jurisdiction in the court and other reasons. By answer these charges are denied, and forfeiture of title and laches are claimed in defense.

At the threshold of this case we are confronted with the question whether these plaintiffs have any title to the land, cloud upon which, by this bill, they are seeking to remove. It is undisputed that for more than 15 years the land in their names has been off the land books and they have paid no taxes thereon, while, on the other hand, ever since Womelsdorf's purchase under the judicial proceedings in Long, Adm'r, v. Bumgardner et al., here assailed as void, the land has been assessed to and taxes paid by him and his subsequent grantees. The Supreme Court of Appeals of West Virginia, in a number of cases (Grinnan v. Edwards, 21 W.Va. 347; Haymond v. Camden, 22 W.Va. 180; Sturm v. Fleming, 22 W.Va. 404; Stephens v. Brown, 24 W.Va. 234; Lynch v. Andrews, 25 W.Va. 751; Hall v. Hall, 27 W.Va. 468), has held, where one within the Confederate lines during the Civil War had been proceeded against in the courts of this state within the Federal lines, by order of publication, and his lands sold for purchase money or other debt, such proceedings were absolutely null and void. In the last two of these cases (Lynch v. Andrews and Hall v. Hall) and in Sturm v. Fleming, 26 W.Va. 54, upon a second appeal, the court distinctly held that a purchaser under such void judicial sale did not hold adverse to the original owner, but in privity, and that taxes paid by him or his assignee inured to the benefit of the original owner, and saved his land from forfeiture in case the land in the original owner's name had been omitted from the tax books, and but for such payment by the purchaser in his name would have been forfeited. Subsequently this court, in Swann v. Thayer, 36 W.Va. 46, 14 S.E. 423, and Mullan's Adm'r v. Carper, 37 W.Va. 215, 16 S.E. 527, practically overruled these prior cases and held (in Mullan v. Carper) that:

'A court of equity, without jurisdiction of the person, pronounces a decree for the sale of a certain parcel of land, and appoints commissioners, with directions to make the sale. They sell the land. The court confirms the sale, and appoints the commissioners to convey the land to the purchaser on payment of the purchase money. The purchase money is paid, and the commissioners make to the purchaser a deed purporting to convey the land in fee. Such deed, being proved, constitutes color of title'

-- and, further, that adverse holding under such color of title for the statutory period of ten years would completely bar the right of the original owner to the land. These later cases have been upheld in a number of subsequent decisions of this court. Bennett v. Pierce, 50 W.Va. 604, 40 S.E. 395; McNeely v. Oil Co., 52 W.Va. 616, 44 S.E. 508, 62 L.R.A. 562; Waldron v. Harvey, 54 W.Va. 608, 46 S.E. 603, 102 Am.St.Rep. 959. In this last case the court undertakes, however, to distinguish Hall v. Hall and Lynch v. Andrews from Mullan v. Carper, and would seem to still hold to the proposition that payment of taxes by the purchaser at the void sale would inure to the benefit of the original owner and prevent forfeiture for his nonpayment of taxes.

In Simpson v. Edmiston, 23 W.Va. 675, approved in Stockton v. Craig, 56 W.Va. 473, 49 S.E. 386, and State v. Harman, 57 W.Va. 447, 50 S.E. 828, it was held that, where a tax deed was void, the title of the former owner remained in him, and the colorable title or claim of the tax purchaser under such void deed and the former owner's title were distinct and hostile, so much so that payment of taxes on the same land by the tax purchaser in his name would not prevent the forfeiture of it for omission in the former owner's name for the same years. Under this ruling it was practically established that both the former owner and the claimant under the void deed must keep the land on the tax books in their own names and both pay taxes, or else be subject to the forfeiture of their respective title or 'color and claim of title' for an omission of five successive years so to do. Finally, however, this has been all upset by the more recent decisions of State v. King, 64 W.Va. 546, 63 S.E. 468, State v. Snyder, 64 W.Va. 659, 63 S.E. 385, and State v. West Branch Lumber Co., 64 W.Va. 673, 63 S.E. 372, where it is held (King Case):

'The privilege given by statute to redeem forfeited land is the mere grace of the state, not its duty, and does not constitute a vested property right in the former owner.'

And:

'The transfer to other claimants of land made by section 3, article 13, of the Constitution, and also a conveyance under a sale in a suit to sell land as forfeited, constitute grants of the state, and create new and original title.'

And further (Snyder Case):

'1. The state is estopped by section 29 of chapter 31 of the Code from proceeding to sell, as forfeited for nonentry in the name of the former owner, land conveyed by a sheriff to a purchaser, pursuant to a sale thereof for nonpayment of taxes thereon, though the deed, because of defects in the sale proceeding, is void as to the former owner and fails to vest his title in the grantee therein.

'2. By making such deed conclusive evidence against all persons except the former owner, his heirs and assigns, and those who might have redeemed the land within one year after the date of the sale, the statute works, by estoppel, a release, grant, or transfer of the title of the former owner to the grantee therein, upon the forfeiture of such title for failure of the former owner to keep the land taxed in his name and the taxes paid thereon for five successive years.'

And finally (in West Branch Case):

'1. Though failure of a former owner of land, conveyed by a fatally defective tax deed, made pursuant to a sale by a sheriff for delinquency, to keep the land taxed in his own name and pay the taxes for a period of five successive years, works a forfeiture of the title, the deed is conclusive evidence against the state that the title of the former owner is in the tax deed grantee, and she cannot maintain a suit to sell the land as forfeited.

'2. Section 29, chapter 31, of the Code, by estopping the state from proceeding against the grantee in a fatally defective tax deed to enforce a forfeiture in the name of the former owner, releases or grants such forfeited title to such grantee in advance of the accrual of the forfeiture.'

From all which the anomalous condition would seem to arise that, while five successive years' failure by a landowner to have his land assessed and to pay the taxes thereon forfeits his title to the state, yet the state is estopped from selling or disposing of the land so long as it is assessed in the name of, and taxes are paid by, one having 'claim or color of title' to the land under a void deed. However, all the cases agree that under section 6, article 13, of the Constitution of the state (given in the margin ^[1]), a complete forfeiture to the state accrues of every tract of 1,000 acres or more of land, where the owner thereof fails to have it entered upon the land books, charged with taxes, and to pay the same for any successive five years.

How complete and sweeping is this forfeiture is...