State v. King et al.
| Citation | 64 W.Va. 610 |
| Parties | State v. King et al. |
| Decision Date | 22 December 1908 |
| Court | West Virginia Supreme Court |
Redemption of lands, title to which has become vested in the State by forfeiture or sale, is a mere grace or privilege extended by the State, which it may directly withdraw, or which it may deny before actual redemption by grant of the lands to another than the former owner. (pp. 616, 617.)
Lands once sold by the State, or on its behalf, as forfeited to or vested in the State, cannot again be sold as such, nor redeemed, in any other proceeding, unless there has been a subsequent forfeiture to or vesting in the State of the title acquired at the first sale. (p. 618.)
The owner of a valid title originating by reason of the first sale has, in regard to a subsequent forfeiture to or vesting in the State, right of redemption superior to that of the former owner, (p. 623.)
Lands once sold by the State, being, under chapter 105 of the Code, again involved in a suit in which it appears that a valid title originating at the first sale is agair. in the State because of failure to redeem within a year from a sale for delinquent taxes, but that the taxes have in fact been paid into the treasury as for a redemption, and that the State does not complain, are properly dismissed by the court on motion of the owner of such title. The dismissal operates as a redemption on his behalf. (p. 623.)
Appeal from Circuit Court, Marion County.
Suit by the State against H. C. King and others. Decree dismissing lands of Buskirk and others, and King appeals.
A firmed.
Maynard F. Stiles, for appellant.
John F. Dillon, Harry Hubbard, C. W. Campbell, Edward C. Lyon, Sheppard, Goodykoontz & Scherr, Brown, Jackson & Knight, W. B. Cornwell, Lilly & Shrewsbury, Anderson, Strother & Hughes, Frank Cox, and George J. McComaS, for the State.
In this case opinions upon other questions than the ones now to be discussed are delivered herewith. It is well to refer to these for an understanding of the general character of the case and matters involved in it. It is also proper to refer to decisions in this case as reported in 47 W. Va. 437 and 60 W. Va. 607. In this appeal from the decree of January 11, 1908, distinct facts are involved. Many of the questions governing them, however, have been determined in the other opinions. For this reason, we shall, as far as practicable, avoid reiteration or extended discussion.
By the decree complained of, Buskirk, trustee, for him- self and others represented by him, obtained a dismissal of certain lands claimed by them. Buskirk asked that the suit be dismissed as to these lands. King-claimed the right to redeem. This was the simple issue between them. The court below granted the dismissal. Is such decree of dismissal right?
King's claim of title to the 500, 000 acre Robert Morris grant is well recited in other opinions, to which we have referred; likewise, the location of the 480, 000 acre grant to Morris, adjoining the other on the east. Their location and relation to each other have been heretofore fixed by decree of the court below and affirmed here. As determined as aforesaid, these two grants are distinct and do not interlock. And by that finding, the so-called "20, 000 acres" claimed by Buskirk are not within the 480, 000 acre grant, nor do they conflict with it. But a portion of the 20, 000 acres is within the boundary as determined in this suit, by decree below and affirmance here, to be that of the 500, 000 acre grant.
And now let us inquire as to the title upon which Buskirk claims. One Adams, in 1879, claimed to own the 480, 000 acre grant. One of the deeds in his chain of title was forged, it seems. This would be important elsewhere, but, from the view we take of the case, it is not here. Adams conveyed the 480, 000 acre grant to Jesse R. Irwin in the year aforesaid. Irwin paid no taxes. By proceedings on the part of the Commissioner of School Lands of Wyoming county, begun in 1881, in the circuit court of that county, the 480, 000 acres were sold and purchased by Irwin. This sale was confirmed by the court's decree, in which McClure, commissioner as aforesaid, was directed to convey to the purchaser, reserving, as in the sale, all junior claims within the grant protected by the constitution and laws, and all lands therein sold by the Commissioner of School Lands. McClure, conveyed, as directed, to Irwin, on March 25, 1886. This deed, consistent with the proceedings leading to it, purported to convey the land by metes and bounds of the calls in the original patent and respected the reservations aforesaid, denominating the land as 40, 000 acres 20, 000 in Logan, 10, 000 in McDowell and 10, 000 in Wyoming county, be the same more or less. This. deed refers to the report of Sarver, a commissioner to whom said proceedings to sell had beer committed, as usual for proper findings in such cases. The report made by Sarver, commissioner in that cause, contained only an estimation of the number of acres of lard subject to sale and the taxes due thereon. In this report he locates 20, 000 acres of the aforesaid 40, 000 acres in Logan county. The decree of reference by which he was appointed commissioner authorized him to do such surveying as Irwin might direct. It seems pretty well established that he made a survey of the 480, 000 acres, although a report of the same is not regularly a part of the proceedings in the case. That survey was made by his following the courses and distances of the old patent calls, and not confining the boundaries to the natural monuments called for in the grant. Of course, this made a much larger territory than it is now actually found to be. It reached out by courses and distances far to the north and west into Logan county, and covered the territory in which are the 20, 000 acres now herein claimed by Buskirk. This reaching out made the 480, 000 acres to extend over the 500, 000 acre gram. Yet the 480, 000 acres, by their true location as now determined, do not extend into the county of Logan. As we have said, they adjoin the 500, 000 acre grant but in nowise conflict with it. Irwin was directing the survey of this land, and no doubt had it reach out as far as there was any pretense for doing. It may be that he was then anticipating and preparing for his purchase of the land in that proceeding which he afterwards consummated, as we have stated. Notwithstanding the true boundaries of the 480, 000 acre grant make none of it to lie within Logan county, we must remember that the McClure proceeding called for 20, 000 acres of the land to be in Logan county, 10, 000 in McDowell, and 10, 000 in Wyoming; and the deed of McClure, commissioner, to Irwin is consistent therewith. That deed and the report and decree upon which it is based call for 20, 000 acres of the land thereby sold, after reserving junior claims protected by the constitution and laws and lands sold by the Commissioner of School Lands, to be in Logan county. Sarver's report located that land in Logan county. Part of the redemption money was apportioned to that county. To us it is clear that this proceeding and sale thereby of the unprotected and unsold portions of the 480,-000 acre grant were upon the theory of a consideration of it by its courses and distances, if not by an actual survey thereby.
It appears that after McClure conveyed to Irwin the latter made certain conveyances which led to a conveyance to Emma Idalia Pomeroy, dated July 28, 1893. These intermediate conveyances did not specifically locate or describe the 20, 000 acres. The deed to Mrs. Pomeroy did. It sufficiently locates and describes the land now claimed by Buskirk. At that time the taxes were in default. And Mrs. Pomeroy also neglected to pay taxes. For the year 1894 it was returned delinquent in her name and for the year 1893 it was returned delinquent in the names of some of her predecessors in title. In December, 1895, it was sold by the sheriff of Logan county for these delinquencies, bought by the State, and, not being redeemed as required by law, it became forfeited to the State. Upon the making of a report to the circuit court of Logan county by Hinchman, Commissioner of School Lands of that county, that these 20, 000 acres had become forfeited to the State and liable to be sold for the benefit of the school fund, as aforesaid, that commissioner was directed to commence proceedings for the sale of this land. Such proceedings were begun at July Rules, 1897, in the name of the State. These proceedings clearly show that the tract involved therein as forfeited under sale of delinquency in 1893 and 1894 as aforesaid, was the 20, 000 acres in controversy. Mrs. Pomeroy and former claimants to the title which had been conveyed to her were made defendants. King, however, was not made a defendant in this suit. After the cause had been committed to a commissioner and a report had been made by him, there was decree on April 29, 1898, ascertaining the taxes and interest then due and unpaid, and directing sale if the amount so ascertained and the costs were not paid within thirty days. Hinchman, Commissioner of School Lands, was appointed to sell. He made sale, as required by said decree, on the 18th day of October, 1898, and Stoddard and Hall became the purchasers. On November 3, 1898, this sale was confirmed by decree, and Wil- kinson was appointed a special commissioner to convey the land to the purchasers. He made a deed on the 12th day of November, 1898, in which, after reciting his authority to make it and the decree under which he acted, described the land as that portion of the 480, 000 acre tract situated in Logan and Mingo counties sold by Hinchman, Commissioner of School Lands, to Stoddard and Hall, and further described it according to the old patent calls of the 480, 000 acres....
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