White ct at. v. Straus ct al.

• Decision Date: 07 April 1900
• Citation: 47 W.Va. 794
• Court: West Virginia Supreme Court
• Parties: White ct at. v. Straus ct al.

47 W.Va. 794

White ct at.

v.Straus ct al.

Supreme Court of Appeals of West Virginia.

Submitted February 7, 1900.

Decided April 7, 1900.

1. Tax Sale Redemption Right of Infants.

If real estate is sold for the nonpayment of taxes thereon, and the right of redemption, under the statute, belongs to or accrues to an infant by reason of title vested, such right may be exercised in behalf of such infant during infancj", and by himself personally within one year after he becomes twenty-one years of ag'e. (p. 795).

2. Tax Sale Right of Infants.

The real estate of an infant should not be decreed for sale until the liens thereon are ascertained and fixed, (p. 799).

Appeal from Circuit Court, Wood County.

Bill by Leland R. White and others against William M. Straus and others. Decree for plaintiffs, and defendant, Straus, appeals.

Modified.

W. N. Miller, for appellant. Dave D. Johnson, for appellees.

Dent, Judge:

In the case of Leland R. White and Lohnier White, infants, against William M. Straus and others, from the circuit court of Wood County, the principal question is as to the right of the infant plaintiffs to redeem a certain lot from a tax sale made during the life of their father, put which, by reason of his death within the year of redemption, became their property. The facts are as follows: Arthur L. White, the father of plaintiffs, was the owner of a house and lot in the city of Parkersburg. Being in the government employ, he moved to the West, and placed his property in the care of agents, to be rented or sold. They permitted it to be returned delinquent for the taxes of 1893 and 1894, and in December, 1895, twenty-three teet thereof was sold for such delinquency, and William M. Straus became the purchaser. Holmes Hiteshaw, the agent, and a relative of Straus, notified White of the sale, and that he had not sufficient funds to redeem it, and that it would require twenty-two dollars and fifteen cents to do so. White sent him the money, and Hiteshaw still postponed redeeming it; claiming that the amount was not sufficient. Before the matter could be settled, White died. His widow then tried to find out the amount of money required for redemption, but was postponed from time to time until the year expired, when she was informed by the agent that the purchaser, Straus, would not allow the redemption, and had applied for and obtained a deed, but was willing to pay two hundred dollars for the residue of the property. The infants, by their next friend, filed their bill, asking that the property might be redeemed md sold for their benefit, as they had no means to repair it so as to make it rentable. Straus filed a supplemental answer, setting up ownership to the whole lot, and alleging that the residue of the lot had been sold for taxes accrued since the death of Arthur L. White, to wit, for the years 1895 and 1896, in the month of January, 1898, and that he obtained a deed therefor on the 5th day of January, 1899, while this suit was pending. The circuit court dismissed sucli supplemental answer, and decreed a redemption and sale acccording to the prayer of the bill.

Straus appeals, and insists that the plaintiffs are not entitled to redeem the property now, but that his title became indefeasible one year after his purchase. This question depends on the construction cf section 30, chapter 31, Code, wdiich provides that "an in Pant, married woman or insane person whose real estate may have been so sold during such disability, may redeem the same by paying to the purchaser, his heirs or assigns, within one) ear after the removal of the disability the amount for which the same was sold," etc. The appellant claims that this only applies to such sales where the infant owns the real estate in his own name at the time the sals was made by the sheriff, and not to real estate inherited by him after such sale, yet within the period of redemption; that is, if he inherits the land just before the sale is made, the law applies, but, if he inherits it just after the sheriff makes the sale, the law does not apply, and the infant has only the right of re demption accorded to an adult. This contention is sustained by the decisions of the courts of Pennsylvania, Iowa, and Kansas, under very similar statutes. McCormack v. Russell, 25 Pa. St. 185; Stevens v. Cassady, 59 Iowa, 113, 12 N. W. 803; and Doudna v. Harlan, 45 Kan. 484, 25 P. 883; Blackw. Tax. Titles, § 374. In Stevens v. Cassady, which follows the Pennsylvania decision, and is followed by the Kansas decision, the reason given for such holding is that to extend the disability of infants to lands acquired after a sale by the sheriff would permit an adult whose property had been sold for taxes to extend the period of redemption by making a deed for the property after sale to his infant children. Could not the adult accomplish the same result by making such deed just before the sale? Or could not any real estate owner, by making a deed to his infant child, postpone the payment of the taxes thereon until after the child became cwenty-one years of age? But what could be gained by such postponement? To assume that a property owner will make a fraudulent transfer of his property to temporarily escape the payment of the taxes due thereon, as a reason for depriving an infant of his property and legal disability, is unreasonable, illogical, and unjust. These decisions, too, strictly construe the law, to the detriment of those who are incapacitated thereby from transacting business, and whose property rights, by reason of their disabilities, should be protected and preserved, instead of being made a prey of the law. The holding of the supreme court of Wisconsin is directly to the contrary, and therefore more in harmony with justice and equity. Jones v. Col'ins, 16 Wis. 594. On page 605 the court savs: "It must be admitted, if this statute is to receive a strict construction, it would cut off the right of the heirs to redeem. But we think it should not receive such a construction. This case comes fully within the spirit of the law, which was evidently passed for the benefit of those laboring under some legal disability, and who were incapable of protecting their own rights. So, although the minors did not own the lands when they were sold for taxes, yet, inasmuch as they became vested with the title before the tax deed wis issued, the case would seem to come fully within the reason and principles of the law which gives them the right of redemption. The rule with regard to the construction of statutes of this character is thus laid down in Dubois v. Hepburn, 10 Pet. 1, 9 L. Ed. 325. The court says: 'A law...