State v. Milam
| Decision Date | 13 October 1925 |
| Docket Number | 4513. |
| Citation | 131 S.E. 249,100 W.Va. 103 |
| Parties | STATE v. MILAM ET AL. |
| Court | West Virginia Supreme Court |
Submitted April 1, 1924.
Rehearing Denied Dec. 2, 1925.
Syllabus by the Court.
A claimant of land, admitting forfeiture of his title, will not be permitted to redeem in a proceeding under chapter 105 Code, where the forfeited title has been transferred to another claimant under section 3, article 13, of the state Constitution.
Additional Syllabus by Editorial Staff.
Certificate of state auditor, failing to show either date of sale or time when delinquency was returned, is insufficient as prima facie evidence under Code, c. 130, § 5, of fact and time of return of alleged delinquency and sale thereunder.
Error to Circuit Court, Raleigh County.
Suit by the State to have land sold for benefit of school fund involving controversy as to title between defendants Dudley Milam and the Rowland Land Company. From a decree dismissing complainant's bill, and denying the right of redemption to Dudley Milam, complainant brings error. Affirmed.
J. E Summerfield, of Beckley, and A. A. Lilly, of Charleston, for the State.
P. H M. Patterson, L. L. Scherer, Ashton File, and W. W. Goldsmith, all of Beckley, and Harold A. Ritz and Brown, Jackson & Knight, all of Charleston, for defendants in error.
This suit was instituted under chapter 105, Code, presumably for the purpose of having sold for the benefit of the school fund two adjoining tracts of land in Raleigh county, containing 144.18 acres and 5.81 acres, alleged to have been forfeited for nonentry on the land books from 1870 to 1917. In reality it involves a controversy of title between the defendants Dudley Milam and Rowland Land Company, a corporation.
The bill filed at April rules, 1918, alleges, in effect, that, by continuous, adversary holding, under claim of ownership, the defendants Dudley Milam and Sena C. Milam, his wife, acquired title to the land proceeded against, but that, because of their failure to have the property entered for taxation, the title so acquired by them has become forfeited to the state.
The bill alleges further that the defendant Rowland Land Company asserts title to said land as part of a 20,042-acre tract conveyed to it by deed from defendants S. C. Rowland and J. Roman Way, dated September 19, 1903.
The answer of Dudley Milam and Sena C. Milam denies that Rowland Land Company, S. C. Rowland, or J. Roman Way are interested in the land or have paid taxes thereon; avers that by adversary possession under claim of ownership Dudley Milam has acquired fee-simple title thereto; admits the alleged forfeiture; and prays that said Dudley Milam be permitted to redeem from the state.
The answer of Rowland Land Company, S. C. Rowland, and J. Roman Way denies the alleged possession and ownership of Dudley Milam or Sena C. Milam, and avers that the defendant Rowland Land Company is the owner in fee simple of said land under the deed to it from S. C. Rowland and J. Roman Way, bearing date September 10, 1903, conveying 20,042 acres of land (including the disputed territory), subject to the reservation by S. C. Rowland and J. Roman Way of the timber thereon 10 inches and over in diameter measured 4 feet from the ground; that title to said 20,042 acres, emanating from the commonwealth of Virginia, was conveyed to S. C. Rowland and J. Roman Way by deed from John R. Bond and others dated October 25, 1899; that the Rowland Land Company, S. C. Rowland, and J. Roman Way and their predecessors in title have had and held open, notorious, continuous, exclusive, and adverse possession of the 20,042-acre tract more than 20 years next preceding the institution of this suit; that they have paid all taxes charged or chargeable thereon from 1865 to 1917; and, by virtue of section 3 of article 13, of the state Constitution, are invested with all other titles and claims of title forfeited to the State.
Claim of Dudley Milam.
According to the evidence adduced in support of this claim, about the year 1830 Pemberton Cook, the father-in-law of Dudley Milam, marked out the boundaries and took possession of the land in question by actual occupancy, which he maintained until about 1868, when Milam and Leonard Webb, by parol purchase, obtained the claim and possession of Cook. Later acquiring the title of Webb, Milam has continuously occupied the land under inclosure of the entire tract since 1890.
By deed dated July 30, 1903, Dudley Milam and Sena C. Milam conveyed the land to their son-in-law, Henry A. McGinnis, who thereafter, by deed of March 31, 1905, reconveyed the same to Dudley Milam. These two deeds constitute the only written evidence of title in Dudley Milam. No taxes were ever assessed to or paid by him or any one under whom he claims.
Title Asserted by Rowland Land Company.
The disputed boundary is part of 20,042 acres of land conveyed by Robert C. Winthrop and others to John R. Bond and others, by deed dated November 1, 1886, and thereafter conveyed by John R. Bond and others to S. C. Rowland and J. Roman Way, and by them to Rowland Land Company, as alleged. The 20,042-acre tract is also part of two conflicting grants from the commonwealth of Virginia, one dated January 9, 1796, to Thomas Rutter and Reuben Etting for 174,673 acres, the other February 17, 1796, to De Witt Clinton for 130,000 acres; title having passed by regular line of conveyances from those holding under said grants to the grantors in the deed, dated November 1, 1886, from Robert C. Winthrop and others to John R. Bond and others. It is shown by the testimony for Rowland Land Company, S. C. Rowland, and J. Roman Way that they and their predecessors in title have held and maintained continuous, actual possession of the 20,042-acre tract, outside of the land in dispute, since 1888, and have, during the whole of said period, paid the taxes on an acreage equal to, or in excess of, that contained in said 20,042-acre tract.
In view of this situation, the Rowland Land...
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