State Of West Va. v. Blevins
| Decision Date | 23 March 1948 |
| Docket Number | (CC 733) |
| Citation | 131 W.Va. 350 |
| Court | West Virginia Supreme Court |
| Parties | State of West Virginia v. L. C. Blevins, et al. |
1. Equity
Under Code, 11A-4-9, as amended a circuit court is vested with discretion to treat the certificate of the auditor authorized by said statute as sufficient proof to support a decree for the sale of lands for the benefit of the school fund; or in accord with general equity principles such court may require other and additional proof to be adduced in any manner according to equity procedure, including a reference to a commissioner in chancery.
2. Equity
Code, 11A-4, as amended, properly construed, does not confer judicial authority on the auditor of this State nor administrative functions on a circuit court.
3. Constitutional Law
In a suit inter partes and in rem for the purpose of selling delinquent and forfeited lands for the benefit of the school fund, as provided in Code, 11 A, as amended, persons holding record liens, persons having or claiming an interest in said lands, as disclosed by the public records and persons in possession thereof may be proceeded against by an order of publication as unknown defendants. Such procedure does not violate the due process provisions of the Constitution of the United States and the Constitution of this State.
4. Constitutional Law
In a suit to sell lands sold or forfeited to the State under the provisions of Article XIII of the Constitution of West Virginia and Code, 11A-4, as amended, it is not a denial of due process of law required by the Federal and State Constitutions to proceed against the holders of record liens, persons in possession of the land, and persons claiming an interest in said land as unknown defendants, and the court may, in such suit, enter a decree of sale, even though said unknown defendants may be residents of this State.
5. Constitutional Law
The provisions of Code, 11A-4-12, as amended relative to the award and effect of an order of publication are not vio- lative of Section 1 of the Fourteenth Amendment to the Constitution of the United States or Section 10, Article III of the Constitution of West Virginia.
6. Pleadings
If, under an applicable statute, it is apparent that the time for redemption of lands proceeded against by the State in a suit to sell the same for the benefit of the school fund may have elapsed, an allegation in a bill of complaint filed in such suit that such lands are irredeemable will be treated as true on demurrer.
7. Taxation
A former owner of land sold or forfeited to the State for nonpayment of taxes or nonentry on the land books, and those claiming under, or acting for, such owner, are not denied, by Code, 11A-4-27, as amended, any privilege or immunity guaranteed by the Fourteenth Amendment to the Constitution of the United States and by Section 10 of Article III of the Constitution of West Virginia. Nor is such former owner and those in privity with him deprived of any property by such statute.
8. Statutes
The last sentence of Code, 11A-4-27, as amended, properly construed is not contrary to the provisions of Section 3, Article XIII of the Constitution of this State.
9. Redemption
The right of redemption of lands forfeited while owned by infants, insane persons and married women conferred by Section 6, Article XIII of the Constitution of West Virginia, is not in conflict with Section 4 of the same article. The lands so owned and forfeited are always redeemable within the time provided in said Section 6.
10. Statutes
Code, 11A-4-34, as amended, is contrary to the provisions of Sections 4 and 6, Article XIII of the Constitution of West Virginia, and therefore is void.
11. Transfer of Lands
Lands forfeited for nonentry, owned by infants, insane persons and married women are not subject to transfer under the provisions of Section 3, Article XIII of the Constitution of West Virginia, until the time for redemption provided by Section 6, Article XIII, has elapsed.
12. Costs
Unless expressly provided by statute, costs will not be assessed against the State in a suit to which the State is a party; and Code, 11A-4-20, as amended is not unreasonable or inequitable, in requiring an adjudication of costs against a person intervening in a suit brought by the State to sell delinquent and forfeited land.
Certified from Circuit Court, McDowell County.
Suit by State of West Virginia against L. C. Blevins and others to sell designated lots or tracts of land for benefit of school fund, wherein W. S. W. Ray and D. C. Cartwright, two of the named defendants, demurred to bill of complaint. The demurrer was overruled, and trial court, on joint motion of State and defendants, certified to Supreme Court of Appeals the questions arising thereon.
Affirmed in part; reversed in part.
Ira J. Partlow, Attorney General, John C. Vance, Assistant Attorney General, and Samuel A. Christie, for plaintiff.
Koontz & Koontz, and Kenneth E. Hines, for defendants.
The State of West Virginia instituted this suit in the Circuit Court of McDowell County against L. C. Blevins and twenty-eight other named defendants and all unknown persons who have or claim an interest in twentyfive lots or tracts of land situate in said county. The purpose of this suit is to sell said lands for the benefit of the school fund. W. S. W. Ray and D. C. Cartwright, two of the named defendants, demurred to the bill of complaint. The demurrer having been overruled, the trial court, on the joint motion of the State and the defendants, certified the questions arising thereon to this Court for its decision.
Eleven of the grounds of demurrer rest on the alleged unconstitutionality of certain sections of Code, 11A-4, as last amended. Said statute will be hereinafter referred to by section or the word "statute" without other designation.
The following facts are alleged in the bill of complaint: Edgar B. Sims is the duly elected and qualified auditor of the State of West Virginia and ex officio commissioner of forfeited and delinquent lands of said State. Samuel A. Christie is the lawfully appointed and qualified deputy commissioner of forfeited and delinquent lands for McDowell County, West Virginia. Said auditor on April 5, 1946, certified to the Circuit Court of McDowell County a list of all lands in said county which were forfeited, delinquent, escheated, or waste and unappropriated. A copy of said certificate was forwarded to, and received by the deputy commissioner of forfeited and delinquent lands of said county, who, within ten days of the receipt of said certificate caused a notice to redeem to be published and posted.
A copy of the certified list is exhibited with, and made a part of, the bill of complaint. It is disclosed by said list that twenty of the said tracts or lots Of land were sold to the State as delinquent for the nonpayment of taxes levied and assessed prior to the year 1936; that four tracts of land so certified were sold to the State as delinquent for the nonpayment of taxes levied and assessed after the year 1935; and that one tract was forfeited, apparently, for nonentry on the land books for the years 1930 to 1945. It is further alleged in the bill of complaint that no taxes have been extended or paid on the twenty tracts or lots of land above mentioned, or on the one tract forfeited for nonentry, or on two other lots or tracts which are shown by the certificate to have been sold as delinquent for nonpayment of taxes levied and assessed on the said lands for the years 1937 and 1940. No allegation is made in the bill of complaint relative to the extension and payment of taxes on the other two lots or tracts covered by the certificate.
It is further alleged in the bill of complaint that all of the said tracts or lots of land have become irredeemable; that "the title thereto remains in the State"; that said lands are subject to sale for the benefit of the school fund; and that unknown parties may have or claim an interest in the lands sought to be sold.
The bill of complaint prays that all persons named in the caption, being persons in whose names the lands were returned delinquent or forfeited, be made defendants; that process issue as to them; that an order of publication be awarded as to all unknown parties or claimants who have or claim an interest in the lands proceeded against; that the right, title and interest of such unknown persons who fail to appear and defend their rights be foreclosed and held for naught; that a suitable guardian ad litem be appointed for any known or unknown infants and "for all unknown persons, firms and corporations"; that the rights of the defendants, respectively, in and to any tract or lot of land proceeded against be adjudicated; that the title to all of said tracts or lots of land proceeded against be adjudged as vested in the State of West Virginia and subject to sale for the benefit of the school fund; that a decree of reference be made, as required by Section 20 of the statute; that the court may permit dismissal of the suit as to any tract or lot of land, under the provisions of Section 19 of the statute; that a decree of sale be made for the benefit of the school fund; and for general relief.
The bill of complaint, by endorsement thereon, discloses that process was returned at August rules, 1947, executed as to eight of the named defendants; that an order of publication was awarded as to said eight defendants, as well as to all other defendants; and that a guardian ad litem was appointed for known and unknown infant defendants. By a second endorsement on said bill of complaint, it is shown that at September rules, 1947, the cause was set for hearing as to all eight known defendants served with process; that an order of publication was completed; and that the cause was set for hearing as to all defendants.
A copy of the order of publication is filed with the bill, which shows that it was awarded on July 21, 1947, being styled "State of West...
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