Totten v. Nighbert

Citation41 W.Va. 800,24 S.E. 627
PartiesTOTTEN. v. NIGHBERT.
Decision Date28 March 1896
CourtSupreme Court of West Virginia

Jurisdiction of Person—Appearance—Effbct — Equity — Amended Bill —When Proper — Second Tax Sale—Validity —Statutes —Repeal.

1. When an original or amended bill is filed in court, by leave thereof, and the defendant ap pears and demurs thereto, he thereby waives any objection he may have for want of process, and submits himself to the jurisdiction of the court; and he cannot afterwards raise such objection in his answer, or otherwise.

2. An amended bill is proper to bring to the attention of the court the completed right to maintain a suit which was prematurely brought ou an inchoate right

3. The state is not bound by the unauthorized or illegal acts of its officers, nor can its title to a tract of land be transferred, divested, or affected, in any manner or to any extent, by such unauthorized or illegal acts; and all persons who deal with such officers do so at their peril, in all matters wherein such officers exceed their legitimate powers.

4'. Where land has been sold for taxes, and purchased for the state, and the clerk of the court illegally places such land on the land books for succeeding years in the former owner's name, and such land is again delinquent, and sold, by direction of the auditor, for the taxes of such succeeding years, such sale is illegal and void, and the purchaser acquires no title by reason thereof; and the clerk's deed made in pursuance of such sale is wholly void, and will be set aside.

5. Chapter 194, Acts 1871, is repealed by virtue of the provisions of chapter 117, Acts 1872-73, and chapter 130, Acts 1882.

(Syllabus by the Court)

Appeal from circuit court, Logan county.

Bill by Enoch Totten against James A. Nighbert to set aside a tax deed. From a judgment for plaintiff, defendant appeals. Affirmed.

J. H. Ferguson, for appellant.

S. P. Kelly, for appellee.

DENT, J. Statement of the case by defendant's counsel: This is an appeal from a decree of the circuit court of Logan county setting aside a tax deed. In 1879 and 1880 the plaintiff, Totten, was charged on the land books of Logan county with a tract of 500 acres of land, of which he was the owner in fee; and for both years the land was returned delinquent and on the 15th day of November, 1881, was sold for the nonpayment of the taxes thereon, and purchased for the state of West Virginia; and, Totten failing to redeem the same within the time required by law, the land thereby became forfeited, and the title of the owner thereto became and was vested absolutely in the state of West Virginia, This tract of land remained on the land books of said county for the years 1881 and 1882 in the name of Totten. and was again returned delinquent, and sold, and purchased for the state of West Virginia, and not redeemed by Totten. And, still remaining on the land books for said county for the years 1883 and 1884 in the name of said Totten, the said tract of land was again returned delinquent and sold on the 1st day of March, 1886, for the nonpayment of the taxes of those years, and was purchased at said sale by the defendant, James A. Nighbert. And, the said plaintiff failing to redeem the same within one year, the said purchaser on the 21st day of September, 1887, obtained his deed for the land from the clerk of the county court of Logan county, In due form of law. March rules, 1891, plaintiff filed his originalbill, to which defendant demurred. Demurrer sustained, and plaintiff, by leave of court, on 28th April, 1891, filed his amended bill; and on the 1st day of August defendant appeared, and demurred to the amended bill. On the 27th of October, 1891, defendant filed his answer. On the 26th day of April, 1892, the court overruled the demurrer to the amended bill, and permitted the plaintiff to amend it by the addition of another clause. As this last amendment in no wise affects the decision of this case, it is unnecessary to notice it any further. The material allegation in the amended bill is as follows, to wit: "The above-named plaintiff, by way of amendment to his original bill of complaint herein, further complains, and says that he adopts each and every allegation of said original bill not herein amended or modified, and makes the same a part and parcel hereof, as fully as if the same was herein repeated. And, further complaining, alleges that at the April term, 1889, of the circuit court of Logan county, in said state, U. B. Buskirk, commissioner of school lands for said county, filed his annual petition in said court, asking for the sale of a number of forfeited and delinquent tracts of land situate in said county, for the benefit of the school fund, —among them, the said 500 acres of land belonging to this plaintiff, mentioned and described in Exhibit F, filed with and made part of his said original bill of complaint which will more fully appear from a duly-authenticated copy of said petition herewith filed, marked 'Exhibit 101, ' and prayed to be taken and read as part of this bill; and at the April term, 1891, of the circuit court of said county, and during the pendency of the proceedings to sell said 500 acres of land for the benefit of the school fund, this plaintiff filed his petition asking to be allowed to redeem said tract of 500 acres of land, which the court, on inspection of the evidence of title of this plaintiff to said land, allowed; and on the 24th day of April, 1891, this plaintiff paid to the said commissioner of school lands all of the taxes, interest, costs, and damages due to the state of West Virginia on said 500 acres of land for the years 1879, 1880, 1881, and 1882, as will more fully appear by a duly-authenticated copy of the decree of redemption entered in the case in said court, herewith filed, marked 'Exhibit 15, ' and prayed to be taken and read as part of this bill."

The following are the points relied on by the defendant in argument: "(1) This suit having been brought by the plaintiff when fie had no legal or equitable right title, or interest in, or claim to, the 500 acres of land in question, the court below had no jurisdiction, power, or authority to grant him the relief, or any part thereof, prayed for in his bills, or either of them. (2) The sale of the 500 acres of land in question for the nonpayment of the taxes assessed thereon for the years 1883 and 1884, at which sale the defendant became the purchaser thereof, was a legal and valid sale of said land to him; and the court below erred in setting aside the said sale, even if it had jurisdiction to do so, but which it had not (3) The tax deed by which the clerk of the county court of Logan county conveyed the 500 acres of land in question to James A. Nighbert, the purchaser thereof, was and is a good and valid deed, under the statute; and the court below erred in setting it aside, even if it had jurisdiction to do so, but which it did not have."

It is unquestionably true that this suit was instituted at a time when plaintiff had only an inchoate or incomplete right to bring the same. He had the statutory right to file his petition and redeem the land, which he did after the institution of the suit. In the case of Butler v. Butler, 4 Lift. (Ky.) 202, it is said: "It will be admitted that the trial of an issue in a court of common law determines upon the controversy as it stood at the commencement of the action, except such issues as are founded on the plea of puis darrein continuance, and that if there was, at the commencement of the suit, no cause of action, it is fatal, however strong it may have become afterwards. But the rule in a court of equity is somewhat different. The chancellor is not tied down to such strictness as to refuse relief in all cases where the bill was...

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  • Samsell v. State Line Development Co.
    • United States
    • West Virginia Supreme Court
    • May 15, 1970
    ...officers do so at their peril, in all matters wherein such officers exceed their legitimate powers.' Point 3 Syllabus, Totten v. Nighbert, 41 W.Va. 800 (24 S.E. 627). 2. 'The finding of a trial court upon facts submitted to it in lieu of a jury will be given the same weight as the verdict o......
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    ...417; Franklin v. T. H. Lilly Lumber Company, 66 W.Va. 164, 66 S.E. 225; Ferrell v. Camden, 57 W.Va. 401, 50 S.E. 733; Totten v. Nighbert, 41 W.Va. 800, 24 S.E. 627; Andrews v. Mundy, 36 W.Va. 22, 14 S.E. 414; Layne v. The Ohio River Railroad Company, 35 W.Va. 438, 14 S.E. The conflicting ev......
  • McNeeley v. South Penn Oil Co.
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    ... ... oil leases, put them back as before the act of 1873? ...          The ... opinion by Judge Dent in Totten v. Nighbert, 41 ... W.Va. 800, 24 S.E. 627, sustains the positions above stated ... as to repeal by expression. An act in 1871 (Acts 1871, p ... ...
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