Totten v. Nighbert
Citation | 41 W.Va. 800,24 S.E. 627 |
Parties | TOTTEN. v. NIGHBERT. |
Decision Date | 28 March 1896 |
Court | Supreme 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 Chapter 194, Acts 1871, is repealed by virtue of the provisions of chapter 117, Acts 1872-73, and chapter 130, Acts 1882.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 following are the points relied on by the defendant in argument:
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: ...
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...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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