State v. McEldowney.

• Decision Date: 09 February 1901
• Parties: State v. McEldowney.
• Court: West Virginia Supreme Court

54 W.Va. 695

State

v.McEldowney.

Supreme Court of Appeals of West Virginia.

Submitted September 3, 1903

Decided February 9, 190-1.

Delinquent Land Sale.

The failure to return a list of delinquent lands sold for taxes by the first Monday in June is not, under chapter o±, section 25, Code 1899, ground for setting aside a sale, either to the state or an individual. The defect is cured by fiat section. Expressions to the contrary in McGce v. Sampselle, 47 W. Va. 352, disapproved,

Delinquent Land Tax Sale.

The curative provisions as to tax sales in section 25, chapter 31, Code 1899, apply to purchases by the stale of land sold for taxes. Point 3 of the syllabus in McGee v. Sampselle, 47 W. Va. 352, to the contrary, is overruled.

Delinquent Land Tax Sale.

A sale for delinquent taxes of land purchased by the stale for taxes for a year previous to the year for the taxes of which the land is sold to an individual is illegal and void, and a deed under such sale is void.

Former Decree Res Judicata.

To render a former decree a bar as res judicata, in a. second suit about the same matter, not mere matter of defense, the matter of the second suit must have been actually in issue in tho first. The pleadings of the first suit must be such that the party could have proven and had it passed on.

5. Bill Decree.

Where a bill in a suit does not present facts which call for relief, and it is dismissed, the decree will not bar a subsequent bill on the same cause of action, which states additional or other facts not in the first bill, which make the second bill good, for the same relief called for in the first suit.

6. P. n x D cere c D i smi s sal.

If a material fact touching a matter of controversy is such that it must be stated in a bill, a decree dismissing a bill not stating it will not bar a second bill properly stating such fact.

7. Former Decree.

To render a former decree a bar to a second suit the demand must not only be the same, but the cause of that demand must be the same.

s. Former Suit.

Whore the record leads to the ground of decision, that decision is no farther a bar to a second suit than as to that ground, except as to defenses which the party is bound to plead,

9. Tax Sale Defective Title.

A bill to set aside a tax deed for defects in the proceedings under which it was sold must point out those defects,

10. Tax Sale Defective Title.

Where a tax deed is set aside by decree, not for a mistake or irregularity in the record of the proceedings under which it was sold, referred to in section 25, chapter 31, Code 1899, but because the sale was unauthorized by law. and so the deed void, the former owner suing to clear his title of such deed will not. bo required to repay the tax purchaser his outlay in his purchase or taxes paid by him.

Appeal from Circuit Court, Wetzel County. Action by the state against John C. McEldowney and others. Decree for defendants, and plaintiff appeals.

Reversed.

W. X. Miller, R. E. Fleming, and B. T. Bowers, for the State.

E. B. Snodgeass, for appellees.

BRanNoN', Judge:

Levi Shuman was taxed with a lot of land on which is a mill in Wetzel county for the year 1890, and it was sold for delinquency for said tax in 1891 and purchased by the state. It was again taxed for the year 1891, returned delinquent, sold for such taxes in 1893 and purchased by John C. McEldowney, who obtained a deed under such tax sale. The lot was sold from Shuman under a decree for purchase money and purchased in June, 1891, by Cassie L. Nuzum, and it was conveyed to her under such judicial sale 14th November, 1891. Mrs. Nuzum attacked McEldowney's tax purchase by a suit in Wetzel county to set it aside for irregularity in the tax sale; but her suit was decided against her by this Court, as will be seen in 40 W. Va. 207. After this the State of West Virginia, claiming that the said lot was vested in it under its said tax purchase, in a chancery suit in the circuit court of Wetzel county, sought to sell the lot for the benefit of the school fund. The bill in this suit made McEldowney a defendant, set up his said tax title, alleged the invalidity of the tax sale to him and sought to set it aside as null and void. The bill also made Mrs. Nuxum a defendant, alleging that she had acquired the lot under said judicial sale. McEldowney answered this bilL relying upon his tax title. Mrs. Nuzum filed an answer in the nature of a cross bill attacking and seeking to annul McEldowney's tax deed as void, and admitting the right of the state, and offering to redeem the land under the statute by payment to the state of the requisite amount. McEldowney answered and resisted the relief sought by Mrs. Nuzum in her answer. Upon the hearing a decree was pronounced declaring the state's purchase for taxes was void, but declaring the taxes a lien on the lot, and allowing McEldowney to remove the lien by the payment, and dismissing the state suit, and holding valid McEldowney's tax deed, and refusing to set it aside as prayed by Mrs. Nuzum in her answer, and dismissing that answer. Erom this decree Mrs. Nuzum took an appeal.

Take the case as between the State and McEldowney. The state attacks McEldowney's deed for irregularity, and he attack's the state's purchase for taxes. McEldowney says that the state's purchase is invalid by reason of the fact that the delinquent list under which the sale to the State was made was not returned until 27th July, 1901, when the law required it to he returned by the first Monday in dune, and according to MrGee v. Sampselle, 47 W. Va. 352, holding this would render the State's purchase bad, and that the curative provisions of section 25, chapter 31, Code 1899, (chapter 130, Acts 1.882) do not apply to heal defects in purchase's by the state, the sale to the state would be void. The Court now disapproves and overrules such holdings of that case. We hold that such curative provisions apply to purchases by the state the same as to individual tax deeds. Section 32 says that the state purchases shall he listed and that "all such estate, right, title and interest

* * as would have vested in an individual purchaser shall be by the sale and purchase on behalf of the state vested in tho State without deed." Why does not this give the state right to the cure of the statute? Really the case of McGee v. Sampselle as to this point is obiter, as the trees were not owned by Nancy Brown, and not taxable in her name. It was not necessary to pass on tie1 tax deed to decide the case.

Wo further hold that the fact that the delinquent list was not returned within the1 time specified by law does not render the state's purchase void, and this because section 25, chapter 31, Code 1899, says that "no irregularity, error or mistake in the delinquent list, or the return thereof, or in the affidavit thereto,

* * * shall, after the deed is made, invalidate the sale or deed." Of course, the state title is subject to redemption by a party entitled to redeem. In this ease the state is entitled to a decree to sell the lot on failure of redemption.

As between McEldowney and Mrs. Nuzum. She says in her answer that McEldowney's tax deed is void for the reason that the delinquent list was not returned by the first Monday in dime, 1892, and not until 25th July. This defect is cured by provisions in Code 1899, chapter 31. as just stated. Mrs. Nuzum's answer charges that as the lot was sold to the state for taxes for 1890, the assessment for 1891 was contrary to law, for the reason that chapter 31. Code 1899, prohibits its assessment while it is vested in the state until it is redeemed'. This point cannot prevail, because on 1st April, 1891, Shuman was si ill owner and the assessment relates to that date, and the delinquent list was not returned until Jul v. and the state did not purchase until 1.4th December, 1891. But there is another ob- jection to the sale to McEldowney. It is that he purchased' for taxes in December, 1893, and before that the fact that the lot bad been sold to the state was apparent in the Auditor's office, and the Code of 1899, chapter 31, section 4, directs him to send out for sale lists of land delinquent for taxes "not previously sold therefor", and does not allow him to send out for sale lands owned by the state by tax purchase1. There was no law allowing the Auditor to send out this lot for sale in 1893. because it was state property, and there was no law to authorize its sale, and that sale was simply void. Section 23, chapter 29, Code 1899, forbids the assessment of land vested in the state by tax sale, and the two statutes plainly make such sale to McEldowney illegal. Totten v. Nighbert, 41 \V. Va. 800, so holds. There is no provision of law curing this void sale. A question arose with me whether the answer specifics this vice in the sale. It does not clearly do so; but it states the fact of the sale and that it was not redeemed, and that it was for 1891 charged and was delinquent for taxes for that year and sold to McEldowney therefor, and that the sale was void. Under these facts it results, as matter of lav/, that the auditor did send out and the sheriff sold the lot without authority of law, and wTe think the answer may be regarded as sufficient to present this defect.

After preparing this opinion I notice that in Bayers v. BurhJiart, 85 Fed. 246, the Circuit Court of Appeals, in an opinion by Judg-e Goef holds that it is against law to assess laud purchased by the state. It thence plainly follows that the assessment and sale are void.

But McEldowney pleads that the decree of this Court upon the bill of Mrs. Nuzum against him is a bar to any relief upon her said answer in this suit, as res judicata. In the former suit Mrs. Nuzum's bill assailed M.cEldownoy's tax deed on certain grounds, namely; defect in the sheriff's affidavit to the sales list and defect in the heading of the list; but did not impeach the deed on the ground that there was no authority to sell by reason of the fact that the land was vested...