State v. Simmons, CC772

• Decision Date: 30 April 1951
• Docket Number: No. CC772,CC772
• Citation: 135 W.Va. 196,64 S.E.2d 503
• Parties: STATE, v. SIMMONS et al.
• Court: West Virginia Supreme Court

Page 503

64 S.E.2d 503

135 W.Va. 196

STATE, v. SIMMONS et al.

No. CC772.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 13, 1950.

Decided Jan. 23, 1951.

Rehearing Denied April 30, 1951.

Syllabus by the Court

1. In a suit to sell forfeited and delinquent lands for the benefit of the school fund, instituted under the provisions of Chapter 160, Acts of the Legislature, 1947, Regular Session, the former owner of such lands, who is named as a defendant in such suit, whether a resident or a nonresident of this State, may be proceeded against by an order of publication; and such procedure is not violative of the due process or other provisions of the Constitution of the United States or of the Constitution of West Virginia.

2. In a suit to sell forfeited and delinquent lands for the benefit of the school fund, instituted under the provisions of Chapter 160, Acts of the Legislature, 1947, Regular Session, persons holding record liens against, having or claiming an interest in, or in possession of, such lands, whether residents or nonresidents of this State, may be proceeded against as unknown defendants by an order of publication; and such procedure is not violative of the due process or other provisions of the Constitution of the United States or of the Constitution of West Virginia.

3. The provisions of Section 12, Article 4, Chapter 160, Acts of the Legislature, 1947, Regular Session, relative to the award and the effect of an order of publication are not violative of Section 1 of the Fourteenth Amendment to the Constitution of the United States or of Section 10, Article III of the Constitution of West Virginia.

4. Point 4 of the syllabus in the case of State v. Gray, W.Va. , to the extent that it requires personal service of process upon a former owner of forfeited or delinquent lands and upon other named defendants in a suit to sell such lands, instituted under Chapter 160, Acts of the Legislature, 1947, Regular Session, and point 7 of the syllabus in that case, which requires personal service of process, in such suit, upon all persons within the jurisdiction of the court in which such suit is instituted, when such service of process can be had, are disapproved.

5. The right or the privilege of redemption of a former owner of forfeited and delinquent lands, owned or purchased by the State, or of any other person permitted to redeem such lands, is a creature of statute and is an act of grace upon the part of the State which the Legislature has the power to alter, revoke or destroy by statute of prospective operation and effect.

J. Hornor Davis, II., John C. Vance, Wm. T. Homberg, Charleston, for plaintiff.

J. Edward Litz, B. J. Pettigrew, Jr., Charleston, for defendants.

HAYMOND, Judge.

This suit was instituted, under the provisions of Chapter 160, Acts of the Legislature, 1947, Regular Session, on November 22, 1948, in the Circuit Court of Kanawha County, by the plaintiff, State of West Virginia, by J. Honor Davis, 2nd, Deputy Commissioner of Forfeited and Delinquent Lands for that county, against E. E. Simmons and forty six other named defendants and all unknown parties and persons who have or claim an interest in the lands included and proceeded against in the suit, to sell for the benefit of the school fund tracts or parcels of land which have been forfeited or sold to the State for taxes.

Among the lands proceeded against in the suit is a lot, 25 feet by 50 feet in dimensions, located on Elk Two Mile Creek, Elk District, Kanawha County, assessed for taxes in the name of Lloyd Cottrell, one of the named defendants, for the year 1945. This lot was returned delinquent for the nonpayment of taxes for that year, was not redeemed, was regularly sold by the Sheriff of Kanawha County on December 9, 1946, and purchased by the State of West Virginia. By deed dated June 14, 1947, and recorded June 16, 1947, Cottrell conveyed with general warranty the lot to Sherman Drake. The taxes on this land were paid for the years 1946, 1947 and 1948, but it was not redeemed from the sale to the State for the taxes for 1945. It became irredeemable on June 8, 1948, and on September 22, 1948, was certified by the Auditor to the Circuit Court of Kanawha County and to the Deputy Commissioner of Forfeited and Delinquent Lands for that county to be proceeded against for the benefit of the school fund.

The bill of complaint alleges that all lands involved in the suit are subject to sale, lists the various lands, states their certification numbers, the year in which each tract or parcel was forfeited or sold to the State, the respective years of nonentry and forfeiture or delinquency and sale, the names of the former owner or owners of each, the names of all other persons who, according to the knowledge of the Deputy Commissioner, have or claim an interest in such lands, the quantity, the location, and a general description of such lands, and the total amount of taxes, interest and costs due on each, and, as to numerous lots or tracts, refers to the source of title of the former owner. It contains allegations of the character just indicated with respect to the lot listed in the name of Cottrell and identifies it as Item No. 6 and Certification No. 5415. It also contains, among others, an allegation that all persons who, within the knowledge of the Deputy Commissioner, have or claim an interest in any of the lands involved, have been made defendants, and that the Deputy Commissioner knows of no other persons who have or claim an interest in such lands except the persons named as defendants, but that there may be other persons who have or claim such interest. The bill of complaint prays that all unknown parties and claimants who are or may be interested in any of the lands proceeded against be made defendants, that all right, title and interest of all unknown parties and claimants who fail to appear and defend their rights shall be forever foreclosed and held for naught; that an order of publication be awarded as to all unknown parties and claimants who are or may be interested in any of the lands proceeded against; that a guardian ad litem be appointed for any infant defendant; that the court find and adjudicate that the lands proceeded against are irredeemable, that title to such lands is vested absolutely in the State, and that each lot or tract of land is subject to sale for the benefit of the school fund; that a decree of reference be entered whenever by the court deemed proper; that dismissal of the suit as to any lot or tract of land be permitted upon proper application and proper grounds; that a decree be entered authorizing and directing that each lot or tract proceeded against be sold for the benefit of the school fund; that the proceeds derived from the sale of such lands be disbursed as provided by law and that the rights of the respective defendants in and to any excess remaining of the purchase money received from the sale of such lands be adjudicated and determined; and that the plaintiff be granted such other, further, and general relief as may be proper.

Process was issued against all the named defendants, returnable to December Rules, 1948, but no process was personally served upon the defendant Cottrell. Drake was not named as a defendant and no process was issued as to him. The bill of complaint was filed at December Rules, 1948. Previously, on November 2, 1948, an order of publication, containing the information set forth in the bill of complaint relative to the lands proceeded against, was awarded against all named defendants and all unknown parties who have or claim an interest in such lands. The order of publication set forth the object of the suit and required all named defendants and all unknown parties and claimants to appear within one month from the date of its first publication and do what is necessary to protect their interests. It was duly executed by publication upon all persons against whom it was awarded, including Cottrell as a named defendant and Drake, who was proceeded against as an unknown party and claimant of an interest in the lands embraced in the suit.

By decree entered April 5, 1949, the court ordered a sale of the lot proceeded against in the name of the defendant Cottrell and twenty two other lots or tracts, by the Deputy Commissioner, at public auction, on April 25, 1949, at which time, after proper notice, the lot was sold to the highest bidder for cash and purchased by Mayford E. Summers for $5. By a subsequent decree, entered June 2, 1949, the sale was confirmed and the Deputy Commissioner was directed to execute and deliver a proper deed to the purchaser; and, all matters involved having been determined, this suit was retired from the docket of the court. The deed was made on June 6, 1949, and recorded on June 14, 1949. All the foregoing proceedings were had in the suit before any appearance was made by Cottrell or Drake; and during the pendency of the suit the Legislature enacted Chapter 134, Acts of the Legislature, 1949, Regular Session, effective March 11, 1949, which amended Section 12, Article 4, Chapter 160, Acts of the Legislature, 1947, Regular Session, the section in effect when this suit was instituted in November, 1948.

On October 22, 1949, after due notice, Cottrell and Drake appeared and tendered for filing their petition to reopen the case, to vacate the decrees formerly entered, to set aside the deed of June 6, 1949, by the Deputy Commissioner to Summers, as a cloud upon the title of the petitioners, and to permit them to redeem the lot conveyed by that deed. The court, by decree entered on that day, permitted the petition to be filed and reopened the case. The petition, after alleging the same facts stated in the bill of complaint relative to the delinquency of the lot assessed for taxes in the name of Cottrell, avers that the petitioner Drake, after having been advised by an attorney at law that the taxes assessed against the lot...