State v. King

• Court: Supreme Court of West Virginia
• Citation: 63 S.E. 468,61 W.Va. 546
• Parties: STATE . v. KING et al.
• Decision Date: 22 December 1908

63 S.E. 468
61 W.Va. 546

STATE .
v.
KING et al.

Supreme Court of Appeals of West Virginia.

Dec. 22, 1908.

1. Taxation (§ 852^*)—Forfeiture of Land-Operation and Effect.

Under early Virginia statutes applicable to the subject, forfeiture of a particular land title for nonpayment of taxes assessed upon the land or nonentry thereof upon the books of the commissioner of the revenue was complete, embracing the whole title, not partial, reaching only certain estates or interests held under the title.

[Ed. Note.—For other cases, see Taxation, Dec. Dig. § 852.*]

2. Taxation (§ 852*)—Forfeiture of Land-Operation and Effect.

A legislative act, passed by the General Assembly of Virginia March 15, 1838 (Acts 1838, p. 21, c..8, f 17), providing that "all the right, title and interest of the commonwealth, or of the president and directors of the literary fund, to any land owned by" a certain person then dead, "under title, legal or equitable * * * and which have been forfeited to the commonwealth, or said literary fund, for the nonpayment of the taxes charged thereon, or for failing to enter the same on the land books of the commissioners of the revenue, * * * shall be and the same is hereby transferred to, and vested in, " a certain person in trust for certain purposes, subject only to the proviso that the transfer or grant should not affect the right or title of any bona fide occupant acquired by pre-existing law, vested in the trustee the complete original title under which such deceased person had held, except as aforesaid, although at the time of the forfeiture he or his heirs may have had only the equitable title or an undivided interest in the land, or no title to or interest in it at all; the phrase "to any lands owned by * * * under title legal or equitable" being regarded as descriptive of the land, not the interest or estate granted.

[Ed. Note.—For other cases, see Taxation, Dec. Dig. § 852.*]

3. Taxation (§ 853*)—Forfeitures—Redemption—Owner of Undivided Interest.

Under the provisions of section 17 of chapter 105 of the Code of 1899 (section 3529, Code of 1906), the owner of an undivided interest in land may fully redeem the tract in respect to which he owns such interest, if the same be open to redemption by any other or all the owners under the same title, since redemption, like forfeiture, must always be of the full fee-simple title of so much of the land as is redeemed, not of mere interests or estates therein.

[Ed. Note.—For other cases, see Taxation, Dec. Dig. § 853.*]

4. Judgment (§ 675*)—Persons Bound—Persons Instigating Appeal.

Persons who were not in any sense parties to a cause in the trial court at the time of the entry of an appealable decree therein do not subject themselves to such decree by instigating or encouraging an appeal therefrom on which it is affirmed wholly or in part, and aiding in the prosecution thereof.

[Ed. Note.—For other case, see Judgment, Cent. Dig. § 1190; Dec. Dig. § 675.*]

5. Judgment (§ 674*) — Persons Bound—Additional Parties.

Persons made parties to a cause for the first time after the partial reversal by the appellate court of a decree therein, and the remanding of the cause, are not bound by such decree in so far as it was affirmed, although they procured the filing of an amended bill by which they were so made parties and defrayed expenses incident to the issuance and service of the process thereon.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 1186; Dec. Dig. § 674.*]

6. Boundaries ($ 39*)—Ascertainment—Reference to Commissioner.

Reference of a cause to a commissioner to ascertain and report the location of a disputed boundary line is proper, when the evidence is conflicting as to the identity of monuments called for in the title papers; the identity of monuments and application of the description found in the deed, patent, or other muniment of title to its subject-matter being questions of fact, and the rules applicable to undisputed or clearly established facts questions of law.

[Ed. Note.—For other cases, see Boundaries, Dec. Dig. § 39.*]

[63 S.E. 469]

7. Equity (§ 414^*)—Appeal and Error (§ 1022*) — Finding op Commissioner — Conclusiveness—Review.

The finding of a commissioner in chancery on a question of fact has not the force of the verdict of a jury in a law case nor on an issue out of chancery. Though entitled to peculiar weight, the chancellor, if dissatisfied with it, may set it aside on exception and adopt his conclusion as to what the evidence proves; and on appeal the finding of the commissioner will be regarded merely as a circumstance of more or less weight to be considered with the evidence in testing the correctness of the finding of the court.

[Ed. Note.—For other cases, see Equity, Cent. Dig. § 931: Dec. Dig. § 414;* Appeal and Error, Dec. Dig. § 1022.*]

8. Boundaries (§ 3*)—Relative Importance op Conflicting Elements.

Quantity, courses, and distances, mentioned in the description of land, must yield to identified monuments, when there is conflict, and mere conflict in the evidence as to the identity of monuments, does not-preclude the application of this rule; it being the duty of the court or jury, as the case may be, to determine from the evidence whether the objects in question are the monuments called for.

[Ed. Note.—For other cases, see Boundaries, Cent. Dig. §§ 14-19; Dec. Dig. § 3.*]

9. Evidence (§ 274*)—Declaration of Adjoining Owner.

The declaration of a deceased adjoining owner of land as to the location of a corner or line, to be admissible, must relate to a line or corner of his own land, in the ascertainment of which he has an interest.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1129-1134; Dec. Dig. § 274;* Boundaries, Cent. Dig. § 156.]

10. Evidence (§ 274*) — Declarations by Tenant or Equitable Owner.

If in other respects unobjectionable, such a declaration, made by a tenant or equitable owner, is admissible, if paper title in the landlord or trustee be shown.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1121, 1123, 1124; Dec. Dig. § 274.*]

11. Evidence (§ 242*) — Declarations by Landowner—Experimental Surveys.

Experimental surveys and maps thereof, made at the instance of a landowner, endeavoring to find the boundaries of his land, cannot be given in evidence against him as admissions as to boundary locations, unless accompanied by evidence appreciably tending to prove his adoption thereof as being correct.

[Ed. Note.—For other cases, see Evidence, Dec. Dig. § 242.*]

12. Evidence (§ 222*)—Declarations—Caveat Cases.

In proceedings founded on a caveat for the determination of the location of boundary lines of entries and surveys, preparatory to the procurement of patents, the rules of evidence relating to admissions of the parties and locations made by them are more liberal than those applied in proceedings to determine the location of lines designated in patents; the difference being analogous to that obtaining between proceedings for the enforcement of executory contracts of sale of land and those pertaining to the vindication of legal rights accruing under deeds of conveyance.

TEd. Note.—For other cases, see Evidence, Dec. Dig. § 222.*]

13. Boundaries (§ 47*) — Estoppel — Representations.

Representations as to the locations of boundary lines, consisting of reports of surveys and maps filed in judicial proceedings, do not estop a subsequent purchaser of the land, on the theory of acquiescence or otherwise, in favor of persons who were not parties to such proceedings, though they may have purchased lands on the faith of such representations. Acquiescence, to fix boundary lines, must be in the nature of an agreement, evidenced by acts done upon the land, tending to prove an agreement upon definite lines and corners.

[Ed. Note.—For other cases, see Boundaries, Dec. Dig. J 47.*]

14. Boundaries (§ 36*) — Surveys—Admissibility in Evidence.

Though a survey on which no patent ever issued is not admissible to prove the identity and locations of boundary lines and corners of an adjacent survey, carried into grant by the issuance of a patent, if both surveys were made by the same surveyor, and the former only a few months later than the other, and the surveyor has long since died, it may be given in evidence to prove the names borne by streams and other natural objects, called for in the surveys and situate in the vicinity thereof, at the dates of the surveys, and the surveyor's knowledge of these facts, if such names and knowledge thereof become material; they being mere subsidiary issues, bearing indirectly and resultantly upon the main issues in the case.

[Ed. Note.—For other cases, see Boundaries, Cent. Dig. §§ 171-176; Dec. Dig. § 36.*]

15. Constitutional Law (§ 285*)—Due Process of Law—Sale of Forfeited Lands.

Chapter 42, p. 406, Acts 1905 (Code 1906, §§ 3518, 3531), is not in violation of the federal or state Constitution as depriving former owners of forfeited land of vested rights or property without due process of law.

[Ed. Note.—For other cases, see Constitutional Law, Dec. Dig. § 285.*]

16. Constitutional Law (f| 98, 139*)—Vested Rights—Impairment of Contract Obligations.

In a suit by the state to sell land as forfeited for nonentry on the tax books, the former owner, King, asked redemption, and he paid into court the money fixed for redemption, and a decree was made that he had right of redemption. Upon appeal the decree was reversed, in so far as it fixed the sum and declared that redemption had been effected, and the case was remanded to require King to specify the parts of the tract he wished to redeem, and held the amount paid in not sufficient. King did not thus acquire a vested property right to redemption, nor had he a contract with the state free from impairment by the Legislature, nor was a sale of the land thereby created by the state to King. Chapter 42, p. 406, Acts 1905 (Code 1906, §§ 3518, 3531), is not invalid as impairing any such contract or vested right.

[Ed. Note.—For other...