State v. Felty

• Decision Date: 23 September 1930
• Docket Number: 6626.
• Citation: State v. Felty, 109 W. Va. 384, 155 S. E. 122 (W. Va. 1930)
• Parties: STATE v. FELTY et al.
• Court: West Virginia Supreme Court

155 S.E. 122

109 W.Va. 384

STATE v. FELTY et al.

No. 6626.

Supreme Court of Appeals of West Virginia.

September 23, 1930

Submitted September 16, 1930.

Syllabus by the Court.

Commissioner's report, if not excepted to, is deemed correct as to all adult parties except for error apparent on its face.

A commissioner's report, if not excepted to, is to be taken to be correct as to all adult parties, and will not be examined by either the lower or appellate court, and no advantage of any error therein can be taken unless it be error apparent on the face of the report.

Order directing sale of lands forfeited for nonpayment of taxes need not designate date to redeem (Code, c. 105, § 17).

The designation of a day to redeem is not necessary in an order directing sale of lands forfeited to the state for nonpayment of taxes, inasmuch as the rights of the purchasers in such cases do not attach until the confirmation of such sales.

Statute respecting sale of lands forfeited by school land commissioner contemplates sale of all of tract forfeited, not merely part sufficient to pay taxes and costs (Code, c. 105 and c. 31, § 8).

The statute providing for sale of lands forfeited to the state by the commissioner of school lands contemplates the sale of all of each tract so forfeited, whether in whole or in parts, and not merely such a part thereof as will pay the taxes and costs.

Proceedings in school land commissioner's suit affecting rights of absent necessary parties should be suspended until they are made parties.

When the absence of necessary parties in a school land commissioner's suit is brought to the attention of the court, proceedings affecting their rights should be suspended until they are made parties.

Appeal from Circuit Court, Preston County.

Suit by the State by Carlton C. Pierce, Commissioner of School Lands of Preston County, against John Felty, W. M. Ralphsnyder, and others. From an adverse decree, defendant last named appeals.

Reversed and remanded with instructions.

George M. Ralphsnyder, of Fairmont, and G. W. Ford, of Grafton, for appellant.

L. F Everhart, of Terra Alta, and F. E. Parrack, of Kingwood, for appellee.

WOODS J.

This is a suit by the commissioner of school lands of Preston county. The bill alleges that the auditor has certified to him as being liable to sale for the benefit of the school fund certain parcels or tracts of land, which were sold to the state at a sheriff's sale on December 15, 1925, for the nonpayment of taxes thereon for the year 1923, and that the same had been reported to the court, and suit authorized. The tract in controversy in this cause is listed with several others in Reno district, and is described as "Tract No 1566, being 873 A. fee Flag Run, delinquent and sold in the name of W. M. Ralphsnyder."

The decree of reference, after reciting that process was served on all the resident defendants (of whom the appellant was one), instructed the commissioner in chancery to report First, on the character and location of said tracts of land, whether in fee or minerals, and the acreage in fee and minerals; second, the advisability of dividing the large tracts into small tracts, whether minerals or fee, for an advantageous sale; third, in whose name the lands returned delinquent, and the years that the taxes have not been paid upon the same; fourth, the amount of all taxes and interest thereon, upon the several tracts and the amount due the various funds; fifth, and such other matters as any party in interest may require, the same being pertinent, or such other matters as said commissioner himself may deem pertinent, or such other matters, whether so requested or not. It also directed the commissioner before proceeding therein to give notice to all parties to the suit as required under section 8, chapter 105, Code, and that he should report what he did to the next term of court, to which time the cause was continued.

A final decree was entered on the 31st day of December, 1928, confirming the report filed in pursuance of the decree of reference, to which report there were no exceptions, and holding tract No. 1566 liable for the taxes thereon for the year 1923 and forward, together with interest, and that if appellant, or some other person entitled to redeem, did not immediately redeem same, it should be advertised, as provided by law, and sold for the benefit of the school fund. The appellant did not appear to redeem, and after advertising the land, the commissioner made sale of it. However, owing to some defect in the advertisement the court refused to confirm the sale upon the incoming report thereof, and directed another sale in accordance with its former decree. A resale was had, and by decree of July 12, 1929, the same was confirmed.

The last-mentioned decree recites that no exceptions were taken to said sale except such as were shown by the tendered answer of W. M. Ralphsnyder in regard to the tract in litigation; also, that on July 12, 1929, G. W. Ford and Isaac M. Ralphsnyder appeared as attorneys for W. M. Ralphsnyder and demurred to the plaintiff's bill, in which demurrer the plaintiff joined, which, upon consideration by the court, was by it overruled; and that thereupon appellant, by counsel, tendered and asked leave to file an answer, to the filing of which the plaintiff, and also the purchaser of the property, objected, which objection was sustained. This decree ratified and confirmed the sale.

Is there error in any of the rulings of the trial chancellor calling for a reversal in this cause?

In regard to the sufficiency of the bill, the fact that appellant did not appear in the cause before a final decree was had therein, the bill operated as one taken for confessed. It contained the essential elements required by section 5(a), chapter 105, Code, and was sufficient. The demurrer, therefore, was properly overruled.

The commissioner's report was regular on its face. We have held that if such report is not excepted to, it is to be taken to be correct as to all adult parties, and it will not be examined by either the lower or appellate court, and no advantage of any error therein can be taken unless it be error apparent on the face of the report. State v. King, 47 W.Va. 437, 35 S.E. 30. There is nothing in the record to indicate that all matters set out in said report were not proved to the satisfaction of the commissioner.

Objection is made to that portion of the decree of December 31, 1928 which directed that the lands be advertised for sale if appellant did not ""immediately" redeem same. We see no necessity for giving a day to redeem before sale. However, we are not unmindful of the general rule recognized by our decisions to the effect that a decree to sell land for debt of any kind without giving the debtor a reasonable time for payment before sale is cause for reversal. King v. Burdett, 44 W.Va. 561, 29 S.E. 1010; Abney-Barnes Co. v. Coal Co., 83 W.Va. 292, 98 S.E. 298; Rose v. Brown, 11 W.Va. 122. These cases hold that the giving of a time for advertising the sale is not equivalent to a specific day to redeem. But, as Judge Brannon says in Watterson v. Miller, 42 W.Va. 108, 24 S.E. 578, the rule ought not to be applied to sales under trust deeds, as a trust deed is essentially a contract, and the court has no right to to give indulgence when the parties have provided against it. In the instant case the only right that the appellant had was to come in and redeem his land. He could do that at any time during suit, up to the time of the entry of the decree confirming the sale. Section 17, chapter 105, Code. Then what would be the use of giving a day to redeem his land before sale? We see none. The rights which a purchaser acquires under an ordinary judicial sale do not attach to sales in a school land suit until the...