State v. Moore
| Decision Date | 12 November 1912 |
| Citation | 76 S.E. 461,71 W.Va. 285 |
| Parties | STATE v. MOORE et al. |
| Court | West Virginia Supreme Court |
Submitted February 13, 1912.
Syllabus by the Court.
In a suit by the State, pursuant to chapter 105, Code 1906, to sell its waste and unappropriated lands, it is not error to refer the cause to a commissioner, before proof of the allegation of the bill, although defendants and claimants have filed answers alleging title in themselves and denying that the land proceeded against is waste and unappropriated particularly where the answers are not specific, or are equivocal, and the boundary lines are doubtful, or in dispute, and a survey and report is necessary to locate the land.
The actual continuous possession under color or claim of title and payment of taxes, required by section 3, article 13, of the Constitution (Code 1906, p. lxxxiv), and section 6, of chapter 105, Code 1906, to transfer the State's title to lands must be actual, visible, notorious and continuous, not uncertain and desultory, as by occasional trespasses prevention of trespassing by others, cutting of timber payment of taxes, &c.
Appeal from Circuit Court, Tucker County.
Bill by the State against John H. Moore and others. Judgment for the State, and defendants appeal. Affirmed.
W. B. & E. L. Maxwell, of Elkins, and A. Jay Valentine, of Parsons, for appellants.
D. E. Cuppett, of Thomas, and Chas. D. Smith, of Parsons, for appellee.
Proceeding according to Chapter 105, Code 1906, the State in November, 1909, filed its bill in the circuit court of Tucker County to sell for the benefit of the School Fund, a tract reported by the Commissioner of School Lands as waste and unappropriated land, lying partly in Tucker and partly in Randolph Counties, and described by metes and bounds as containing 610 acres, more or less. This bill made C. W. Maxwell, John H. Moore, Haymond Hansford, and Christian Felty, trustee, claimants of the land, defendants thereto.
The sufficiency of the bill, which we think good, was challenged by demurrer, and defendants also answered. On filing their answers defendants moved an immediate submission of the cause for final hearing; but without formal action on this motion, the court below, without objection, deeming it a proper case, referred the cause to a commissioner, with direction to report upon the several subjects of inquiry required in the order.
It is contended here, on behalf of defendants, appellants, and as ground for reversal, that it was error to have so referred the cause, before proof by plaintiff of the allegations of its bill, and a decree adjudging it entitled to the relief prayed for. We think there is nothing of merit in this contention. In the first place the denials in the answer are not of that specific and unequivocal character to show clearly that plaintiff was not entitled to relief. For instance, the bill charges that the deed from Stark L. Baker, Commissioner, December 3, 1900, on which defendants rely as source of title to the main body of the land, does not cover any part of the land in controversy, but describes land located in a different locality than that proceeded against. As the case was presented by the pleadings and exhibits it was utterly impossible for the court, without a reference to a commissioner, and a survey and location of the lands provided for, to adjudicate the rights of the parties. Lines and boundaries are uncertain. The true location of the line between Randolph and Tucker Counties, and whether any of the land proceeded against was located in Tucker County, so as to give the court jurisdiction, was controverted, and a survey was necessary to settle that fact. So a reference was proper for this as well as other reasons, according to general rules governing courts of equity. State v. King, 64 W.Va. 546, 63 S.E. 468, point 6; State v. Jackson, 56 W.Va. 558, 49 S.E. 465. Moreover, section 8, chapter 105, Code, and sections 9 and 10 of the same chapter, seem to contemplate an order of reference in all proceedings under this chapter, not only to enable the court to determine whether the State has land subject to sale, but that the notice provided therein may be published and posted, so as to bind all parties and all unknown owners or claimants of any tract or part of a tract proceeded against. See Yokum v. Snyder, 42 W.Va. 357, 358, 26 S.E. 181. Defendants, without objection, appeared before the commissioner, took testimony in support of their defenses, and cross examined plaintiff's witnesses, and by exception to the commissioner's report, for the first time made the point that the reference was premature and erroneous.
Of the 610 acres, more or less, proceeded against, the commissioner found, and the court decreed, that after deducting lands owned by defendants and others, to which good title had been acquired, there remained subject to sale as waste and unappropriated land belonging to the state, 308.61 acres, which should be sold for the benefit of the school fund. Defendants, Moore, Maxwell and Felty, trustee, have appealed.
In their answer to the bill defendants rely solely, as source and color of title, first, on a deed from Valentine, special commissioner, made June 22, 1901, pursuant to a decree of confirmation of prior date, alleged to cover 79 95/160 acres; second, a deed from Stark L. Baker, commissioner of school lands, to J. H. Moore, December 3, 1900, describing by metes and bounds a tract containing 1,000 acres; and third, two deeds, one made by said Moore to defendant Maxwell and N. A. Moore, jointly, about January, 1902; the other by said N. A. Moore, reconveying to his grantor, his interest in the land described in the first deed, both deeds describing the land purporting to be conveyed by identically the same boundaries as those recited in the bill describing the tract proceeded against. Respondents Moore and Maxwell allege in their answer that on July 20, 1907, they conveyed all their interest in said land to Christian Felty, trustee, and that they have no interest therein except as vendors for the lien retained for the purchase money.
The decree of sale, following the commissioner's report, eliminates the 79 acre tract, claimed by the defendants, and no part of that tract is decreed to be sold. It is clearly shown by the evidence before the commissioner, and the report of the surveyor filed therewith, that the deed from Stark L. Baker, commissioner, to Moore, covers no part of the land decreed to be sold. According to the evidence taken before the commissioner the land described in that deed is situated in Dry Fork District, more than ten miles from the land proceeded against, and it is not seriously contended here by counsel for appellants that that deed gives color or claim of title to the land decreed to be sold. On this appeal counsel for appellants rely mainly, on the deed from John H. Moore to Maxwell and N. A. Moore, of January, 1902, and the reconveyance of N. A. Moore to J. H. Moore. But neither the originals nor copies of these deeds, inter partes, were exhibited with the bill or answer, or before the commissioner. The general replication of the plaintiff put in issue the fact of the existence of such deeds and the land purporting to be conveyed thereby.
To defeat the State's suit, defendants rely upon color and claim of title, possession, and payment of taxes for a period of five years, and transfer of the State's title, by virtue of section 3, article 13, of the Constitution (Code 1906, p. lxxxiv), and section 6, of chapter 105, Code 1906. Of the three classes of persons favored by the constitution and statute, it is clear from the record that appellants do not fall within the first class, for they do not show color and claim of title for ten years. We think the evidence does show that they paid...
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