Va. Bldg. & Loan Ass'n v. Glenn

• Citation: 39 S.E. 136,99 Va. 460
• Court: Virginia Supreme Court
• Decision Date: 20 June 1901
• Parties: VIRGINIA BUILDING & LOAN ASS'N. v. GLENN.

39 S.E. 136

99 Va. 460

VIRGINIA BUILDING & LOAN ASS'N.

v.GLENN.

Supreme Court of Appeals of Virginia.

June 20, 1901.

TAXATION—PURCHASE FROM COMMONWEALTH —NOTICE—RECORDS.

1. Code, § 666, as amended by Act Feb. 11, 1898 (Sess. Acts 1897-98, p. 343), provides that applications to purchase real estate bought in for the commonwealth for taxes shall be served on the previous owner, and also on trustees, mortgagees, and beneficiaries, as shown by the record in a deed of trust or mortgage, and the terms of section 661, as to the deed to the applicant, shall apply "to deeds made under authority of this section." Held, that section 661, applying to deeds acquired by parties purchasing directly at the original tax sale, and providing that such deeds may be defeated only by. proof that the taxes were not properly chargeable on the land or had been paid, does not up-ply to a deed obtained under section 666, where notice was not given the trustee or beneficiary in a recorded deed of trust.

2. An applicant to purchase real estate bought in by the commonwealth for taxes is not freed from the duty imposed by Code, § 666, to give notice to a trustee and beneficiary as shown by the record of a deed of trust, though the deed of trust is not properly indexed.

Appeal from law and equity court of City

of Richmond.

Suit by the Virginia Building & Loan Association against Joseph E. Glenn. Bill dismissed and rehearing denied, and plaintiff appeals. Reversed.

B. T. Crump, for appellant.

W. H. Werth, for appellee.

CARDWELL, J. Mary E. Buffin, wife of A. R. Buffin, was the owner of a certain parcel of real estate in the city of Richmond, conveyed to ber from T. W. Stagg and wife by deed of August 1, 1894, duly recorded. In December, 1895, A. R. Buffin and Mary E. Buffin, his wife, conveyed the said real estate to H. A. McCurdy, in trust to secure compliance with the conditions of a bond made by A. R. Buffin for a loan to him from the Virginia Building & Loan Association, which deed was also admitted to record in the clerk's office of the chancery court of the city of Richmond on the 13th day of December, 1895. The property had been for several years assessed for taxation in the name of Mary E. Buffin, and she failed to pay the taxes thereon for the year 1895, and, being returned delinquent, it was in due course sold for the taxes of that year, and bought in by the auditor of public accounts. On the 29th day of May, 1899, there was filed in the clerk's office of the hustings court for the city of Richmond, by Joseph E. Glenn, an application to purchase this property from the commonwealth under section 666 of the Code, as amended by an act approved February 11, 1898 (Sess. Acts 1897-98, p. 343). The application named no other parties upon whom copies of it should be served except the said Mary E. Buffin. Neither McCurdy, trustee, nor the Virginia Building & Loan Association was notified, or had any knowledge, that the taxes on the property were unpaid, and knew nothing of the proceedings to acquire title thereto under section 666, until a statement appeared in one of the newspapers published in the city of Richmond that a deed had been recorded from the clerk of the hustings court conveying the property to Glenn.

In December, 1899, the Virginia Building & Loan Association filed its bill in the law and equity court against A. R. Buffin and Mary E., his wife, for the purpose of enforcing the deed of trust given by them to McCurdy, and for the appointment of a receiver to rent out the property during the pendency of the proceedings. After the ap pointment of the receiver, Glenn filed his petition in the suit, and was made a party defendant thereto, and given leave to make defense to the bill; whereupon the plaintiff filed an amended bill, making its case on the new matter set out in the petition of Glenn, and praying that the deed for the property in question from Christian, clerk, to Glenn be declared of no effect, as to the plaintiff, upon several grounds, but more especially because the plaintiff had no notice of the proceedings by which the deed was obtained by Glenn. Glenn answered the amended bill, and the cause having been heard upon the pleadings, exhibits with them the admissions in the pleadings, and a written and agreed state of facts, a decree was entered on the 5th of April, 1900, dismissing the plaintiff's bill; whereupon, at the same term of the court, the plaintiff filed a petition for a rehearing, which was denied by decree of May 11, 1900. and from these two decrees an appeal was allowed to this court.

Section 666 of the Code, as amended, requires that the application to purchase real estate bought by the auditor for delinquent taxes due the commonwealth shall be served, not only upon the previous owner of the real estate, but upon the trustees, mortgagees, and beneficiaries as shown by the record in any deed of trust or mortgage on said real estate or their personal representative, provided the names of any persons may be omitted which do not appear of record in the clerk's office of the county or corporation in which the land is situated, and, if it be situated in the city of Richmond, which do not appear of record in the clerk's office of the chancery court of said city, etc. Section 666 further provides that the terms of section 661, as to the deed from the clerk to the applicant, shall apply "to deeds made under authority of this section."

Section 661, as it stood when the deed in this case was made to appellee, provided that when the purchaser of any real estate sold under the preceding sections of chapter 28, his heirs or assigns, had obtained a deed therefor, and the same had been duly admitted to record, etc., the right or title to such real estate should stand vested in the grantee in such deed as it was vested in the party assessed with the taxes or levies on account whereof the sale was made, etc., subject to be defeated only by proof that the taxes or levies for which said real estate was sold were not properly chargeable thereon, or that the taxes and levies properly chargeable thereon had been paid, etc.

As amended by act of March 7, 1900 [Acts 1899-1900, p. 1234), in force when the decrees complained of in this cause were made, section 661 provides that when a purchaser of any real estate sold as aforesaid (i. e., under the preceding sections of chapter 28 of the Code), "or sold in pursuance of section 666, " has obtained a deed therefor, etc., the right or title to such estate shall stand vest-ed in the grantee, etc., subject to be defeated only by proof (1) that the taxes for which said real estate was sold were not properly chargeable thereon; or (2) that the taxes, etc., properly chargeable on such real estate have been paid; or (3) that the notice of the tax sale, where made to a person other than the commonwealth, or notice of the application to purchase in case the sale was made under section 666, has not been duly given; or (4) that the payment or redemption of the real estate has been prevented by fraud, etc.

Appellee has made no claim whatever that he gave to appellant, or to McCurdy, trustee, any sort of notice of his application under which the deed from Christian, clerk, conveying to him the property which is the subject of litigation in this suit, was made, and there is no sort of question raised that the deed from A. R. Buffin and Mary E., his wife, to McCurdy, trustee, of December 10, 1895, was admitted to record in the clerk's office of the chancery court of the city of Richmond, December 13, 1895, and that it shows upon its face that A. R. Buffin and Mary E. Buffin were husband and wife, and in the description of the property conveyed recites that it is the property of Mary E. Buffin, conveyed to her by T. W. Stagg and wife by their deed of August 1, 1894, recorded in the clerk's office of the chancery court of the city of Richmond, D. B. 152A, page 263. But appellee strenuously insists that he is entitled to hold the property under his deed from Christian, clerk, because he was prevented from giving the required notice (1) by reason of the negligence and carelessness of appellant in preparing its trust deed; and (2) the deed of trust was only Indexed in the general index of the clerk's office of the chancery court in the name of A. R. Buffin as grantor, and not in the name of Mary E. Buffin, his wife, the real owner of the property conveyed.

The negligence imputed to appellant in the preparation of its deeds of trust consists only in stating the conveyance as from "A. R. Buffin and Mary E. Buffin, his wife, " instead of from "Mary E. Buffin and A. R. Buffin, her husband."

Appellee further contends that if appellant is not estopped from setting up the want of notice of the application to purchase the property in question, under section 666 of the Code, he is fully protected in his right to hold the property under his deed from Christian, clerk, by virtue of section 661 of the Code, as it stood when the deed was made and recorded. In other words, although section 666 expressly required appellee, before obtaining his deed to the property, to serve a copy of his application to purchase the same from the commonwealth upon appellant and its trustee, either by actual service of a copy of the application or by publication in a newspaper under certain conditions, and furthermore provided that section 661 should only apply to deeds made under authority of section 666, 1. e. where the provisions of that section had been complied with, still appellee is secure in his right to hold the property under his deed from Christian, clerk. To support the last proposition, appellee invokes the decision of this court in Thomas v. Jones, 94 Va. 756, 27 S. E. 813, and Coal Co. v. Thomas, 97 Va. 527, 34 S. E. 486.

We deem it wholly unnecessary to consider the question whether or not section 661, as amended by the act of March 7, 1900, applies to deeds made before the amendment was adopted. The object of the law...