Stiles v. Layman
| Decision Date | 06 March 1945 |
| Docket Number | 9613. |
| Parties | STILES et al. v. LAYMAN et al. |
| Court | West Virginia Supreme Court |
Appeal from Circuit Court, Marion County.
Syllabus by the Court.
1. Failure of a purchaser of lots sold for delinquent taxes and not redeemed, to file with the clerk of the county court the report or survey required by Code, 11-10-15, until after the expiration of eighteen months from the date of sale, or failure to give to the former owner, or to his heirs when such former owner has died intestate, the notice required by Code, 11-10-16, renders void a deed to such purchaser executed by such clerk pursuant to such sale.
2. Land entered for five successive years on the land books of the county in which it lies, without the charge of any taxes thereon, and not otherwise, is thereby forfeited to the state under the provisions of section 6 Article XIII of the Constitution.
3. Actual continuous possession of a parcel of land forfeited to the state for nonentry on the land books for five years by the grantee in a void tax deed and those claiming under him for five years and the payment by them of all taxes charged or chargeable thereon for the same period, operates under the provisions of section 3 of Article XIII of the Constitution to vest in such grantee or those claiming under him the state's title thereto.
4. Where the grantee in a void tax deed takes possession of a town lot described therein through his tenants by their clearing and gardening a part thereof such possession will extend to the exterior limits of the boundaries of the lot as shown in the deed, and will be considered as the 'actual' possession of the whole thereof within the meaning of that term as used in section 3 of Article XIII of the Constitution.
5. Where one in possession of a town lot forfeited to the state for nonentry for taxation under claim and color of title under a void tax deed omitted the same from the land books for one year of his possession, but caused it to be duly entered for taxation and charged with taxes for the next year, and to be backtaxed for the year for which it was not so entered, and duly paid such taxes for both years, he will be considered as having paid 'all State taxes charged or chargeable' on said lot for both of said years.
6. The owner of a town lot which is correctly designated as No 93, but which through clerical error of the assessor is entered on the land books as No. 92, but at the correct valuation, who pays the state taxes levied thereon under such erroneous designation, has paid 'all State taxes charged or chargeable' on said lot No. 93 within the meaning of the Constitution, Article XIII, section 3.
KENNA, J., and LOVINS, P., dissenting in part.
Marion Meredith, of Fairmont, for appellants.
Ward Lanham, Fred L. Lemley, M. W. Ogden, and L. T. Eddy, all of Fairmont, for appellees.
This is a suit by Charles Stiles and nine others, who are the heirs at law of Bertha Stiles, against Harry M. Layman and others who are grantees, direct and remote, under him, to set aside a tax deed executed by the clerk of the county court of Marion County to said Layman, dated December 13, 1933, purporting to convey the westerly half of lot No. 14 on Hilltop Street and lot No. 93 on Homewood Avenue, situate in Union Independent District of Marion County, an addition to the city of Fairmont. From a final decree adverse to the plaintiffs this appeal was awarded on their application.
The only pleadings brought up in the record are the amended bill of complaint, the joint amended answer of the defendants, Harry M. Layman and Myrdith A. E. Layman, and the second amended and supplemental answer of the defendant, G. C. Fisher, although orders in the record indicate other defendants as having appeared and made defense.
The parcels of land in question were conveyed to Bertha Stiles, a widow, by Greater Fairmont Investment Company, a corporation, by deed dated July 21, 1924. They were entered on the land books of Marion County in the name of Bertha Stiles for the years 1925 and 1926 and the taxes thereon for these years duly paid. Bertha Stiles died January 17, 1926, intestate and leaving as her sole heirs eleven children. One of these children died unmarried, intestate, and without issue, in the year 1930. No administration of the Bertha Stiles estate appears to have been made and no certificate of her death appears of record in Marion County. The said lots continued to be carried in the name of Bertha Stiles on the land books of Marion County to and including the year 1935, although for the years 1931 to 1935, inclusive, no taxes thereon were extended or charged. After the year 1935 the lots did not appear on the land books in the name or names of the plaintiffs, or any of them, or in the name of anyone claiming under them. The lots were returned delinquent for taxes assessed thereon in the name of Bertha Stiles for the year 1930 and sold therefor by the sheriff on December 14, 1931, and purchased by the said Harry M. Layman, from which purchase there has been no redemption. In August, 1933, the purchaser caused a report and description of the lots to be made and filed with the clerk of the county court of Marion County, and caused notices to be issued directed to Bertha Stiles, to the plaintiff, Charles Stiles, to Greater Fairmont Investment Company and to A. J. Colborn, Trustee (the latter two being the beneficiary and the trustee respectively under an unreleased deed of trust executed by Bertha Stiles for unpaid purchase money), as required by Code, 11-10-16, notifying them of said sale and that a deed for the lots in question would be made to the purchaser unless redemption should be made against December 4, 1933. This notice to Bertha Stiles and Charles Stiles was executed by publication. No redemption having been made, the deed dated December 13, 1933, to the purchaser, Harry M. Layman, was accordingly executed by the clerk. By deed dated January 13, 1936, Harry M. Layman conveyed an undivided one-half interest in these lots to his wife; the defendant Myrdith A. E. Layman, and by deed dated December 12, 1938, these two conveyed lot No. 93 to John M. Dulin and Vera M. Dulin, his wife, who in turn conveyed the same to the defendant, G. C. Fisher, by deed dated September 24, 1940.
The plaintiffs, by their amended bill, which is all we have in the record, allege that the tax deed to Layman is void: (1) Because the report required by Code, 11-10-16, of the county surveyor as a prerequisite to the execution of a tax deed was not filed within the period beginning one year after the date of sale and ending one year and six months after such sale; and (2) because the notice to the former owners of the lots was given, if legally given at all, only to Bertha Stiles, then long deceased, and to the plaintiff Charles Stiles.
Since the tax sale was made December 13, 1931, and the surveyor's report was not filed with the clerk of the county court of Marion County until August, 1933, there was a fatal defect in these preliminary steps necessary to give the clerk of the court power to make the deed. Caplan v. Shaw, W.Va., 30 S.E.2d 132. The notice to redeem also was insufficient. It was addressed to Bertha Stiles, who had been dead for seven years, and to the plaintiff, Charles Stiles, as former owners of the lots. This notice may have been valid as to the plaintiff, Charles Stiles, but it was simply no notice as to the other nine heirs of Bertha Stiles, who are plaintiffs herein. Gates v. Morris, 123 W.Va. 6, 13 S.E.2d 473, 134 A.L.R. 791. For these reasons we hold the tax deed to Layman void.
The defendants say, however, that the plaintiffs have no such right, title or interest in the lots in controversy as will enable them to maintain this suit for the reasons: (1) That the lots involved were in 1928 returned as delinquent for nonpayment of taxes levied thereon in the name of Bertha Stiles for the year 1927, and were sold therefor in 1929, purchased by the state and not redeemed; and (2) that the plaintiffs, for five years prior to the commencement of this suit, had failed to have the lots entered on the land books of Marion County in their names and charged with taxes thereon.
The plaintiffs say that the alleged sale to the state in 1929 was void because not made on a day authorized by the statute. However, the only reference in the record before us to this sale is the allegation in the answers in the record, as follows: 'that for the year 1927 the taxes assessed thereon were returned delinquent for nonpayment and the said real estate was sold by the Sheriff of Marion County for said delinquency in the year 1929, at which said sale the said real estate was purchased by the State of West Virginia;' there being no allegation that the land was not redeemed from this sale, and no evidence touching this sale was introduced. This is not sufficient to show transfer of title to the lots to the state. Hence this alleged sale must be disregarded.
The Constitution of this state, Article XIII, Section 6, provides that:
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From 1925 to 1930...
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