Wellman v. Hoge

• Decision Date: 16 November 1909
• Citation: Wellman v. Hoge, 66 W.Va. 234, 66 S. E. 357 (W. Va. 1909)
• Parties: WELLMAN et al. v. HOGE et al.
• Court: West Virginia Supreme Court

66 S.E. 357

66 W.Va. 234

WELLMAN et al. v. HOGE et al.

Supreme Court of Appeals of West Virginia.

November 16, 1909

Submitted September 9, 1908.

Syllabus by the Court.

In one suit judicial notice will not be taken of the proceedings in a separate and distinct suit, whether in the same or another court.

A sale for one year's delinquent taxes is as effectual as a sale for all the years for which the land may at the time be delinquent.

A certified copy of the sheriff's original return of sales made for delinquent taxes, on file in the auditor's office, is proper evidence as to the quantity of land sold in a particular instance.

The failure of the sheriff to make a return of sales for delinquent taxes within the time prescribed by law, and the failure of the county clerk to record the same within the time prescribed, are expressly cured by statute.

Where gas and oil are severed in title from land and separate assessment is not made as to the same, a sale of the land for delinquent taxes under an assessment without reservation carries with it the gas and oil.

Appeal from Circuit Court, Marshall County.

Bill by Joseph W. Wellman and another against William V. Hoge and others. Decree for complainants, and Hoge appeals. Affirmed.

John B Wilson, for appellant.

Caldwell & Caldwell and McCamic & Clarke, for appellees.

ROBINSON J.

The object of the suit was to remove alleged clouds from the tax title of plaintiffs to land in their possession. The bill specifically averred the validity of the title by tax deed. The answer denied the regularity, sufficiency, and validity of the tax deed, and by way of affirmative relief prayed that it be canceled and annulled. A special reply closed this issue. It seems not to be controverted that if the tax deed is valid, and passed title to the whole estate, the decree granting the relief asked by the plaintiffs is a proper one.

Hoge the defendant, conveyed the land in June, 1892, to Barbara E and Thomas H. Hall, reserving the gas and oil underlying it. The tract was thereafter regularly assessed to the Halls without reservation. There was no separate assessment of the gas and oil. The Halls paid the taxes on the assessment of the tract as a whole until 1897. They did not pay for 1897, nor for the next two years. The tract was returned delinquent. In 1900 it was sold by the sheriff for the delinquency of 1898, and was purchased by one of the plaintiffs. There being no redemption within a year, a tax deed was made to him after a survey and report had been returned as required by law. Later he conveyed a one-half interest to his coplaintiff. Possession of the land by the plaintiffs under the tax deed is admitted by defendant. Some time after the tax sale, within the year for redemption therefrom, Hoge obtained from the Halls a reconveyance of the land to him. But he did not even attempt to redeem. It is this deed from the Halls to Hoge and the claim which Hoge asserts to the gas and oil by reason of the reservation in his deed to the Halls that are attacked as clouds on the title of the plaintiffs.

The case is resolved to these questions: Is the tax deed valid? If so, did it carry the gas and oil as well as the land?

There was an assessment and a return of delinquency. These are essential to the validity of the tax deed. The delinquent list is not in the record but the bill sufficiently sets forth its existence as a regular one, and the answer makes no attack upon it. No question as to regularity or sufficiency of the delinquent list was put in issue. Yet upon this appeal it is attacked as the identical one held insufficient by this court in Devine v. Wilson, 63 W.Va. 409, 60 S.E. 351. But we can only consider the case now before us upon the issues and record made in it. We cannot look to an entirely distinct record, made by other parties upon issues entirely different from those now involved. "The general rule is well...