State v. King et al.
| Citation | 47 W.Va. 437 |
| Court | Supreme Court of West Virginia |
| Decision Date | 07 February 1900 |
| Parties | State v. King et al. |
1. For feiture Taxes Payment Redemption.
Where a suit is brought in the name of the State for the purpose of subjecting a tract of land to sale for the benefit of the school fund, the former owner of any such tract at the time of the forfeiture shall, if known, be made a defendant; and at any time during the pendency of the suit, and before a decree for the confirmation thereof has been entered by the court, and upon full and satisfactory proof that at the lime the title to said land vested in the State he had a good and valid title thereto, the court may, by a proper decree, permit such former owner, upon the payment into court or to the commissioner of school lands of the costs, taxes, and interest properly chargeable thereon, to be fixed by the court in its decree, to redeem the real estate mentioned in his petition; but the taxes and interest properly chargeable thereon must be ascertained by proof, and not by mere conjecture, (pp. 441-442).
2. Commissioner's Report Exceptions Error.
If a comissioner's report is not excepted to, it is taken to be correct as to 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; but such an error can be taken advantage of in eithercourt at the hearing without exceptions, (pp. 445-446).
3. Decree Error Parties.
In a proceeding of this character to sell three hundred and twenty-seven thousand acres, part of a five hundred thousandacre tract lying' partly in the state of Virginia, it is error to allow the former owner, upon the payment of the taxes and interest found tc be due on ten thousand acres by a commissioner, to redeem the entire three hundred and twenty-seven thousand acre's, providing1 that such redemption shall not affect, the rights that any person not a party to the suit might have under the provisions of section 3 of Article XTTT of the Constitution of the State, (p. 447).
4. Forfett ure Ped emption Taxes Pay m ent.
In order to redeem the undivided portion of a large tract of land from forfeiture to the stale for nonentry and n on-payment of taxes, such portion should be carefully described and accurately located by the person seeking' redemption, that the court may properly ascertain and iix in its decree the costs, stale, county, and district taxes, and interest thereon, chargeable against the same, the prepayment of which'is necessary to consummate such redemption, (p, 451).
Appeal from Circuit Court, Wyoming-County.
Suit by the State against Henry C. King-and others for the sale of land forfeited for nonpayment of taxes. From a decree allowing defendants to redeem the land, the State appeals.
Reversed.
E. P. Rucker, Atty. Gen., Campbell, Holt & Campbell, Brown, Jackson & Knight, and Vinson & Thompson for the State.
M. F. Stiles, E. L. Buttrick, Flournoy, Price & Smith, and Mollolian & McClinttc, for appellees.
This was a suit in equity, instituted in the circuit court of Wyoming County on the 7th of May, 1894, by the State of West Virginia, against Henry C. King and others, having for its object the sale of five hundred thousand acres of land for the benefit of the school fund, which tract was claimed by said King and others, and was situated partly in Wyoming and partly in Logan and Mingo Counties. This land was patented to Robert Morris, assignee of Wilson Cary Nicholas, on June 23, 1705, or so much as lies within this State. This suit, and the proceedings therein, are claimed to be in pursuance of the requirements and provisions of chapter 105 of the Code, and the act amending it passed February 23, 1893. An original and three amended bills were filed in attempting to make the proper allegations and the proper parties. On June 25, 1896, said King filed a petition and answer, claiming to be the owner of the land, denying that any portion had become forfeited for nonentry or nonpayment of taxes, and praying that, in the event it should be held to be forfeited, he might be permitted to redeem the same. Alexander McClintock, not a party to the suit, at the same time filed a petition objecting to King's prayer to redeem, objecting to the jurisdiction of the court, and asserting a claim to a tract which interlocked with said five hundred thousand acre tract, but no action was taken with reference thereto which is claimed as error in this cause. An order of publication, stating the object of the suit, was published as to certain absent defendants, and on September 27, 1894, the cause was referred to a commissioner, with instructions to inquire into and report upon the matters and things set forth in plaintiff's bill, and especially the amount of taxes and interest due and unpaid on that part of the land lying in the State of West Virginia; in whom the legal title was at the time of the forfeiture, if the fact can be ascertained; in whose name, and for what cause, the land was forfeited, and the facts in relation thereto; what portion, if any, is claimed by any person under the provisions of section 3 of Article XIII. of the Constitution of the State; the facts in relation to every such claim, and boundaries thereof; also to report whether or not any of said land has been sold by the State in any proceeding for the sale of school lands, and whether the taxes have been regularly paid since such sale; also to ascertain the proximate quantity within the county of Wyoming; and he was required to give the notice required by section 8 of chapter 24 of the Acts or 1893, by publishing the same in the weekly newspaper of that county. Said section also requires that such notice shall be posted at the front door of the court house, at least four weeks before proceeding to discharge the duties under such decree, of the time and place at which he will so proceed; and such notice so published and posted shall be equivalent to personal service on all parties to the record in such suit, and on all unknown owners and claimants of any tract or parcel of land mentioned in the bill, or any part thereof.
The commissioner, in his report, says that, after giving the notice required by said decree (which only required him to publish the notice in a newspaper), he proceeded to investigate the matter and things required by said decree, and reports, among-other things, that three thousand acres of said survey lie in Wyoming County, West Virginia, besides the junior patents, wdiich are protected under section 3 of Article XIII. of the Constitution of this State: that said five hundred thousand acre survey was redeemed in the circuit court of Wyoming-County, and the taxes paid by Robert E.Randall, trustee of the estate of James Swalin, but the trustee failed to cause said land to be entered on the assessors' books for 1884, or for any year from 1884 to the date of the said report; that in June, 1886, John R. Reed was appointed, by the United States circuit court for the district of West Virginia, trustee of said Swann estate to succeed said Randall, trustee, and the legal title to said land was in said Reed, trustee, at the date of its forfeiture; that the same is forfeited for the owner failing to cause it to be entered on the assessors' land books of Wyoming County for taxation; that said land has not been assessed for the years from 1884 to 1894, inclusive; and that the same is liable to sale for the benefit of the school fund..
The defendant II. C. King filed his answer to said bill which was also treated as a petition, in which he claimed that he had a complete and perfect title to said five hundred thousand acre tract superior to all other claimants, and alleged that, if it should be adjudged forfeited to the vState of West Virginia by reason of the non-assessment thereof on the assessors' land books of the several counties wherein the same may lie, then a proper order should be made in the cause allowing-him to redeem said land from said forfeiture by the payment into court or to the commissioner of school lands of Wyoming County all the interest, taxes, and damages due thereon. On the 30th ot September, 1897, a decree was entered in said cause, holding that said King had the right, superior to all other claimants, to redeem the land by paying the taxes chargeable thereon, with interest and costs of said suit; the cause having been heard in open court upon the report of Commissioner D. A. Robertson, to whom the same was theretofore referred, and upon all the pleadings, evidence, depositions, and papers therein. And said decree recited that, said King having-paid to J. R. Robertson, commissioner of school lands of Wyoming County, as admitted by said Robertson in open court, the sum of two thousand one hundred and ninety-eig-ht dollars and sixty-five cents and interest due on the portion of Morris five hundred, thousand acre grant in West Virginia, and eight hundred and seventy-one dollars and forty-three cents, costs of this suit, and also twenty dollars attorney's fee, which total sum of three thousand and ninety dollars and eight cents was fixed by the court as the amount of costs, taxes, and interest chargeaide upon said land up to and including the year 1897, said King had the right superior to all others to redeem said land and decreed and declared that portion of said five hundred thousand acre tract which lies in the State of West Virg-inia, described in said decree, fully redeemed, and all forfeitures of said land taxes and interest heretofore charged or chargeable thereon released and discharged, but provided that said redemption should not affect the rights of any one not a party to the suit under the provisions of section 3, Article XIII. of the Constitution of West Virginia, and from this decree the State obtained this appeal.
Now, in examining-the questions raised in this case we are met at the...
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