State v. West Branch Lumber Co.
| Decision Date | 22 December 1908 |
| Citation | 65 S.E. 1058,66 W.Va. 1 |
| Parties | STATE v. WEST BRANCH LUMBER CO. et al. |
| Court | West Virginia Supreme Court |
Submitted February 6, 1908
For majority opinion, see 63 S.E. 372.
I do not concur in the decision, and there is much of the opinion in which I do not concur. The opinion underrates and discredits, and casts doubt over, much law of good standing long prevalent, constituting rules of real property.
Can the state maintain a bill under Code 1899, c. 105 (Code 1906, §§ 3513-3535), to sell land as forfeited for omission in the former owner's name from the tax books after a sale for taxes to an individual, whose deed is void for defects in the sale, when the tax purchaser has paid taxes in his own name for the same years in which it was omitted in the former owner's name? Cases cited in State v. Harman, 57 W.Va. 447, 50 S.E. 828, say that a tax sale breaks up the line of title; creates a new title. I cite also Cooley on Taxation, 960, and Hefner v. N.W. Ins. Co., 123 U.S 751, 8 S.Ct. 337, 31 L.Ed. 309, upon the Iowa statute similar to ours, as stated in the Harman Case. I add that in Rich v. Braxton, 158 U.S. 375, 405, 15 S.Ct. 1006, 1017, 39 L.Ed. 1022, the tax purchaser claimed that he could take the benefit of a forfeiture as one deriving title through his tax deed-- that is, through the former owner, as if in privity with him--but Justice Harlem said: "It is idle to say that they had title to any part of the lands 'regularly derived,' mediately or immediately, from or under a grant from Virginia or West Virginia." If they held the same title, they would have had such regular derivation of title; but they did not hold the same title. If such is the case with a good tax deed, it is worse with a void one. No law can be found to show that the tax purchaser holds the same title as the former owner, or in privity with him. It is not the same title vested in the former owner that is conveyed by the tax deed to the tax purchaser. The title of the former owner, if the tax deed is void, remains in him and the colorable title or claim of the tax purchaser and the former owner's title are distinct and hostile, so much so that payment of taxes on the same land by the tax purchaser in his name will not prevent the forfeiture of it for omission in the former owner's name for the same years. Simpson v Edmiston, 23 W.Va. 675, approved in Lynch v. Andrews, 25 W.Va. 751; Bryant v. Groves, 42 W.Va. 15, 24 S.E. 605; Sturm v. Fleming, 26 W.Va. 54; Stockton v. Craig, 56 W.Va. 473, 49 S.E. 386; State v. Harman, cited above. Thus that title of the former owner did not pass by the tax sale. It therefore remained in the old owner, as it was before the tax sale. It is omitted from the tax books, and by the Constitution is forfeited, and according to Simpson v. Edmiston became forfeited. If the state cannot sell it, what is the reason? It cannot be that the tax sale and the tax deed work a warranty. It is well settled that the state makes no kind of warranty by a tax sale. The rule of caveat emptor (look out purchaser) applies to such sale in all its vigor. Hoge v. Currin, 3 Grat. (Va.) 201; State v. Sponaugle, 45 W.Va. 415, 32 S.E. 283, 43 L.R.A. 727, pt. 8. The state sells no lands. She only sells the tax debtor's land; she enforces a lien by legal process, just as a creditor sells his debtor's land or house by decree or execution. If an individual make a deed without warranty, he can set up another title afterwards acquired. Cannot the state? It is not upon any idea of estoppel by warranty that the state is prevented from disposing of the tract by sale. It is of course not from estoppel by record. It can only be by estoppel by conduct, by misconduct or misbehavior, that the state is stopped. But such estoppel does not apply to the state. Being sovereign, it can do no wrong. The general rule is that the state is exempt from equitable estoppel. Herman on Estoppel, § 1128. Carolina Bank v. State, 60 S.C. 465, 38 S.E. 629, 85 Am.St.Rep. 865. But many cases hold the state bound by estoppel by record. Cecil v. Clark, 44 W.Va. 659, 674, 30 S.E. 216. Some cases hold it estopped by deed. The state granted land to an alien, who could not take; but the state was estopped from afterwards averring his alienage. Com. v. André, 3 Pick. (Mass.) 224. But the state cannot be estopped on the theory of estoppel by misconduct. Therefore estoppel cannot be appealed to, to bar the state. It is said that by her law, under her law, she has sold the land, and she cannot turn around and impeach her act. Is this estoppel in pais? She has by law offered the land for sale, induced persons to buy, and cannot afterwards set up adverse claim. So it may be said of a plaintiff selling under a decree or execution. A rule of estoppel in pais is that the party must mislead one into injury who knows no better. Ketchum v. Duncan, 96 U.S. 659, 24 L.Ed. 868. But does not the tax purchaser know the title of the land he buys, and the regularity of the sale, more than does the state? How has the state misled him? The state made a grant; then a second one of the same land; then the title of the older grant came back to the state by escheat. Held that the state could set up this title by escheat against the title conferred by the elder grant. Governeur v. Robertson, 11 Wheat. 332, 359, 6 L.Ed. 488. The court said that the claim of the state was not barred by estoppel either by deed or wrongful action, as the state is not subject to such imputation. The case of Elmondorff, 3 Litt. (Ky.) 478, sec. 10, p. 482, 14 Am.Dec. 86, discusses the whole subject, holding that the state is not barred from claiming by escheat an older title against her later grant. Reaffirmed in Stith's Case, 6 T. B. Mon. (Ky.) 624, 629. So Taylor v. Shufford, 11 N.C. 116, 15 Am.Dec. 512. Recitals in state grants not an estoppel on it. Carver v. Jackson, 4 Pet. 87, 7 L.Ed. 761. State is not estopped, except by legislative grant, from asserting title to property. Alexander v. State, 56 Ga. 478. Sale for taxes does not bar claim of state under title by escheat. Reid v. State, 74 Ind. 252. The court in that case says that to set up an estoppel in pais it is essential that one party act in ignorance of facts, and then says that the tax purchaser was as well acquainted with the facts as the state. It added with emphasis that the tax deed only conveyed the owner's title, not the state title; that there was no warranty by words or implication; that the deed was not even a quitclaim; and that it could not for a moment be thought that by the tax sale it was intended to pass state title by escheat. The same is held in Crane v. Reeder, 25 Mich. 304. Under these authorities the state may claim another title even against her solemn grant. Why, then, logically, can she not claim the better title against a void title under a mere tax sale? That is no grant by her. The state bought land for taxes. It was put on the tax books, and later sold to an individual. She was held not estopped by the void sale. Totten v. Nighbert, 41 W.Va. 800, 24 S.E. 627.
Certain cases are cited to establish estoppel against the state. Cases can be found for everything. Commonwealth v. André, 3 Pick. (Mass.) 224. The state, it was held, could not declare her grant void only because the grantee was an alien. That is different. It was not a question whether she could set up a different title, but whether she could impeach that very deed. Besides in that case the grant was made by the Legislature--that particular grant. Commonwealth v. Pejepscut, 10 Mass. 155, was an act of the Legislature that a certain monument was a monument in an Indian deed. Held that this act of the Legislature barred the estate from disputing it. This was statute law. Counsel does not seem to rely pointedly on the theory of estoppel, but contract. He says the state and tax purchaser made a contract. It was that if the owner should not redeem, the purchaser should have a deed from a public officer.
I do not say that an explicit contract does not estop the state but this is not a contract in such sense. The state simply used legal procedure provided by statute to enforce a lien. Does a creditor make a contract when he sells land or personalty to enforce his lien by decree or execution? I think not. Likely he could not say his process was void; but could he not set up adverse title to the thing sold? In Forqueran v. Donnally, 7 W. Va. 114, it is said that the sale of land for taxes makes a civil contract between state and purchaser which the state cannot impair. That was a sale in 1860. The law then provided for a deed to the purchaser. A statute repealed that section of the Code, leaving no law to make a deed for land sold that year; but a deed was made. The court held that the Constitution of 1863 kept good a right to land acquired under the law of Virginia, and that the law in force at the date of sale was a part of the contract, and repeal could not impair it. I should call it not a contract, but vested property right, preserved against impairment by repeal or legislation. Such right as it was could not be taken away, but by due process. That is not our question. That does not show that a tax sale forbids the state to set up another hostile title. But for Simpson v. Edmiston, cited, and other cases, holding the former owner's title distinct from that of the tax purchaser, and that the former owner's title could not be saved by payment of taxes by the tax purchaser, this difficulty would not exist. It is argued, however, that it is only the former owner who can use that case to show forfeiture, not the state. If there is forfeiture for one purpose, why not for all? The bad tax deed left title in the state. That is forfeited and...
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