GOFF
Circuit Judge.
This
writ of error is prosecuted to a judgment of the court below
entered in an action of ejectment instituted by Victor A
Wilder against William L. Dennis, John C. McCoy, George H
Stone, Joshua Baisden, and L. C. Bell. In due time the case
was tried before a jury, which, by direction of the court
below, returned a verdict for the defendants. Pending the
proceedings in
the court below, a motion was made to set aside the verdict,
as having been improvidently directed, which motion the court
overruled, filing an opinion relating to the points raised
and argued by counsel as involved in said motion. The court,
yielding to the insistence of counsel for the plaintiff
below, then granted a reargument, which was duly had, when
the court, adhering to the conclusion originally reached,
filed an additional opinion and entered the judgment referred
to. The assignments of error are many, the specifications
under them are multitudinous, and the argument to sustain
them, if not convincing, is interesting and plausible. We can
safely say that each and every of the points presented by
counsel for plaintiff in error have been either directly or
indirectly met, answered, and effectually disposed of by the
clear reasoning of the trial judge in comprehensive and
admirable opinions filed by him during the progress of this
litigation in his court. In fact, said opinions relating as
they do to many of the most important questions involved in
the Virginia statutes concerning real estate, the proper
construction of said legislation, and the method of procedure
in case of forfeiture and sale for delinquent taxes
thereunder, as also the rules bearing on the admission and
rejection of testimony pending the trial of an action of
ejectment, are most valuable contributions to our court
decisions on those intricate and important matters, and
deserve the concurrence they impel and have.
The
opinion directing the verdict reads as follows:
'The
plaintiff to show title to the 2,093-acre tract in
controversy introduced: (1) A patent from the commonwealth
of August 2, 1875, to Wm. Collins granting the said tract.
(2) A deed from Wm. Collins to J. D. Sargeant of May 7,
1883, conveying the said 2,093-acre tract. (3) A deed dated
December 27, 1887, from J. D. Sargeant et al. to J. D.
Sargeant, Lewis Rodman, and Thos. Graham, trustees,
conveying inter alia (tract 14) the 2,093-acre tract and
(tract 16) another tract on Tug river, acreage not stated,
recited to have been conveyed by Wm. Collins and wife (by
deed dated October 10, 1886) to J. D. Sargeant and recorded
in Buchanan county deed book B, p. 254, etc. (4) Sundry
appointments of successors to the trustees named in the
deed of December 27, 1887, vesting the title in Torpin,
Lambert, and Pepper as trustees. (5) Deed of December 13,
1901, from the foregoing trustees to V. A. Wilder. After
introducing some parol evidence, now of no interest, the
plaintiff rested.
'The
defendant, after having offered and withdrawn some other
papers, offered in evidence a tax deed of March 2, 1900,
from W. L. Dennis, clerk, to R. Walter Dotson. It was
objected by the plaintiff that the deed does not contain
the recitals required by the Act of February 11, 1898 (Acts
1897-98, pp. 343, 345), and that consequently the deed does
not fall under the protection of section 661, Code 1887
(Code 1904, p. 321). It is required by the act of 1898 that
the deed shall 'set forth all the circumstances
appearing in the clerk's office in relation to the
sale,' and the gist of the dispute is as to the
intention of the Legislature in using the above-quoted
language. The deed offered in evidence does recite, in a
manner at least, all of the essential circumstances which
should appear in the clerk's office in relation to the
sale made by the clerk to Dotson, and I am satisfied that
this is the sale intended by the Legislature and not the
sale made to the commonwealth in 1897. Flanagan v.
Grimmet, 51 Va. 421, 436. The contention of the
plaintiff in effect is that the Legislature by the language
quoted above intended that the circumstances should be set
forth with the particularity and nicety required by the
strictest rules of pleading; that is to say, that the facts
should be stated and that conclusions should not be
substituted
therefor. Quite aside from the persuasive opinion of the
Court of Appeals in Flanagan v. Grimmet, supra, it seems to
me that the probabilities are great that the Legislature
did not intend to require the impracticable particularity
contended for by the plaintiff. Under the decision in
Building & Loan Association v. Glenn, 99 Va. 460
(39 S.E. 136), a tax deed is by force of section 661 of the
Code not conclusive in certain respects, and consequently
any real injustice done the true owner of the land by a tax
deed can be shown notwithstanding the deed. Prior to the
act of 1898 the method provided by law for enforcing
collection of delinquent taxes on real estate had proven
highly inefficient. A 'tax title' was regarded as
valueless; practically no one would purchase delinquent
lands at the sales held by the county treasurers, and in
consequence there were hundreds of thousands of acres
standing on the commissioners' books as sold to the
commonwealth, but the state was unable to collect the taxes
thereon. In amending section 666, Code 1887, by the act of
February 11, 1898, the intent of the Legislature to adopt a
radical change of policy is made most manifest. The
intention was to make easy the acquirement of valid tax
titles and thus to encourage the purchase by individuals of
lands previously sold to the commonwealth. In enacting,
therefore (Acts 1897-98, p. 345), that the deed made by the
clerk to the purchaser 'shall set forth all the
circumstances appearing in the clerk's office in
relation to the sale,' it seems very clear that there
was not an intent to require that such circumstances be set
forth with the accuracy or with the technical nicety
required for instance in common-law pleadings. This
conclusion is fortified by the fact that in the act of 1898
(pages 345, 346) it is provided: 'The provisions of
section 661 of the Code of Virginia (of 1887) shall apply
to deeds made under authority of this section.' Section
661 of the Code of 1887 provides that when a deed has been
obtained and recorded by a purchaser at a tax sale the
title thereby conveyed shall 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 have been paid. It is
true (Va. B. & L. Ass'n v. Glenn, supra, 99
Va. 460 (39 S.E. 136)) that in making section 661
applicable to the tax deeds provided for by act of 1898 the
Legislature did not intend that the requirements of the act
of 1898 should be disregarded. But the fact remains that by
referring to and making section 661 applicable the
Legislature clearly indicated an intent that substantial
compliance with the act of 1898 was sufficient. The tax
deed under discussion does set forth all the circumstances,
not with the greatest possible technical nicety, but in a
manner such as I must regard as within the meaning and
intent of the act of 1898.
'In
connection with the foregoing tax deed another matter may
be here mentioned. The plaintiff attempted to introduce
evidence tending to show that the application to purchase
made by Dotson was in fact made by him as the secret agent
(as to two-thirds interest) of Dennis, the clerk, and
McCoy, the deputy clerk, of the Buchanan county court.
Assuming the fact to be as stated, objection to this offer
was sustained. The argument for plaintiff is based chiefly
on a supposed violation of public policy in treating as
valid a tax deed made under such circumstances. Independent
of any other reason, the case of Yancey v.
Hopkins, 15 Va. 419, 433, 434, tends strongly to
overturn the argument founded on a supposed public policy.
However, even a more conclusive answer to the argument is
found in the fact that the Legislature which, on March 5,
1894 (Acts 1893-94, p. 738), first authorized the clerk to
sell lands previously sold to the commonwealth, had only
seven days prior thereto (Acts 1893-94, p. 473; Act of
February 26, 1894) re-enacted section 656 of the Code of
1887 (Code 1904, p. 320). This section read originally and
as re-enacted: 'When the clerk is a purchaser, the deed
for the land purchased by him shall be executed by a
commissioner appointed by the circuit court of the county *
* * wherein the land is situated.' Even if the act of
1898 had been the first that authorized clerks to sell
delinquent lands, the mere fact that the Legislature in
1898 left in force section 656 of the Code would be a
sufficient reason for holding that it is not contrary to
the policy of the law that clerks should become purchasers.
Even
under such circumstances there would be no warrant for
assuming that the Legislature in 1898 was ignorant of the
existence of section 656; and it would be the duty of the
court to assume the contrary. Sutherland, Statutory
Construction, Sec. 333; School Board v. Patterson
(111 Va. 482) 69 S.E. 337-339. But as the prototype of the
act of 1898 was enacted by the same Legislature that had
only a few days previously reenacted section 656, it is
clear that we cannot assume ignorance of section 656 on the
part of the Legislature
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