Williamson v. *(Patton

• Decision Date: 19 November 1881
• Parties: Williamson v. Russell et al.*(Patton, Judge, absent).
• Court: West Virginia Supreme Court

18 W.Va. 612

Williamson

v.Russell et al.

*(Patton, Judge, absent).

Supreme Court of Appeals of West Virginia.

Decided November 19, 1881.

1. a person in possession of real estate as owner may obtain an injunction to restrain others from dispossessing him by means of a writ of habere facias possessionem issued by a chancery court without any notice to him in a suit, in which he was no party, where he does not claim the land under any party to the suit but by a title paramount and adverse to them.

2. When land is sold, by the order of a chancery court, and the sale is con-firmed, and the land is in the possession of a person, who is-not a party to the suit, the court should issue a rule against the person to show cause, why he should not surrender possession of the land before issuing an habere facias possessionem directing the sheriff to put the purchaser in possession.

3. But if the court should issue such writ requiring the sheriff to remove such person from the land and put the purchaser in possession without having issued such rule, the sheriff would not be liable to be mulcted in damages for executing such writ.

4. A purchase at a sale of land for delinquent taxes made by one, whose duty was to have paid the taxes, operates only as a payment of the taxes; and the purchaser can acquire no rights as against the owner of the land by the neglect of his duty to the owner.

5. Therefore a tenant, who is under obligation to his landlord to pay the taxes on the land he rents, is disqualified from being the purchaser of this land at a sale for the taxes delinquent by the neglect of the tenant to pay them.

6. Quosre: What is the true construction of these words in the 25th section of chapter 117 of Acts of 1872-3, page 321: "and the irregularity be such as materially to prejudice the rights of the owner, whose real estate is sold, and it be clearly proven to the court or jury, that such diligence has been exercised by the party, in whose name it was sold, that but for such irregularity the said party would have redeemed the same under the provisions of the 15th and 16th sections of this chapter? "

7. A married woman having a separate estate in-land sold for delinquent taxes with reference to the redemption of the same is not under such disability, as would extend the time in which she must redeem under the 30th section of chapter 117 of Acts of 1872-8, page 324.

8. The assignment of a mortgage to a married woman since April 1, 1869, though it does not state, that it is for her separate use, creates in her a separate estate in such mortgage under the 3d section of chapter 66 of the Code of West Virginia.

Appeal from and supersedeas to an order of the circuit court of the county of Tyler pronounced on the 4th day of April, 1879, in a cause in said court then pending, wherein Theodore A Williamson was plaintiff, and Joshua Russell and others were defendants, allowed upon the petition of said Williamson.

Hon. James M, Jackson, judge of the fifth judicial circuit, made the order appealed from.

Green, JudGE, furnishes the following statement of the case:

In 1868 Elbert H. Williamson owned a tract of land of forty-four acres on the Ohio river in Tyler county, and conveyed one acre of it to Joshua Russell and all the residue of the tract, forty-three acres, to his brother W. W. Williamson, who at the same time gave him a mortgage on it for $617.38, the balance of the purchase-money due. He assigned this debt and mortgage afterwards to John R. Paw, who on September 23, 1875, assigned it to Louisa E.Walker in consideration of a parcel of land, in which she had a separate estate, and which she conveyed to Paw's wife. Mrs. Walker was then a married woman living with her husband, with whom she continued to live till his death in 1876. Three acres of this tract of land of forty-three acres were mortgaged by W. W. Williamson in 1871 to W. S. Caldwell. He became a bankrupt; and William H. Richardson was his assignee. On December 8, 1875, Mrs. Louisa E. Walker suing as though she was a feme sole brought a suit in the county court of Tyler county to foreclose her mortgage on this forty-three acres of land, making all the above named persons other than Russell defendants. At the February term, 1876, a decree was rendered to sell this land. It was sold by commissioners, and Joshua Russell became the purchaser, and the sale was confirmed at the August term, 1876, and by order of the court a deed was made to him by the commissioners in December, 1876.

In October, 1876, the court reciting, that it appears to the court, that Theodore A. Williamson, the tenant of W. W. Williamson, refused to surrender to the purchaser, Joshua A. Russell, possession of this tract of fortythree acres of land, on the plaintiff's motion decreed, that permission be granted the plaintiff to sue out a writ of habere facias possessionem directed to the sheriff of Tyler county, commanding him to put the purchaser, Joshua A. Russell, in possession of said tract of land. Thereupon Theodore A. Williamson, who was not a party to said suit, filed his bill in the present cause making all the above persons as well as Joshua A. Russell, and the sheriff of Tyler county, defendants.

In this bill he set forth all the above facts; and that said tract of land had before the institution of said suit been entered on the commissioners' books of Tyler county in the year 1874 in the name of Wm. W. Williamson, the owner, and W. S. Caldwell the mortgagor of the three acres, a part thereof, and in their names was returned delinquent for the taxes of 1874; and in October, 1875, the sheriff sold this tract of land for these delinquent taxes, and he, Theodore W. Williamson, became the purchaser for $12.89, the amount of taxes due. He procured a plat and survey of the land to be made; and the land not having been redeemed within one year, on November 9, 1876, the clerk of the county court made him a tax-deed for said tract of land in conformity to law. The bill also alleges, that he was in possession of this tract of land, and if the sheriff should be permitted to execute said writ of habere facias possessionem and put said Joshua A. Russell in possession of said land, incalculable injury would be inflicted on him, the plaintiff. The prayer is, that all the parties defendants be enjoined and inhibited from executing and enforcing said writ of habere facias possessionem against the plaintiff and for general relief. The bill was sworn to by the plaintiff. The injunction prayed for was awarded on bond and security being given in the penalty of $200.00.

The bill was taken for confessed as to all the defendants except Joshua Russell, who answered. All the facts stated in the bill are admitted to be true; but the answer alleges these additional facts: that at the time of the forfeiture of this tract of land for the non-payment of taxes and of the sale thereof, the plaintiff, Theodore W. Williamson, was the tenant of William W. Williamson, and that he was the agent of William W. Williamson in the years 1874 and 1875 for the payment of the taxes on this land, and that Louisa E. Walker, the mortgagee and plaintiff in the former suit, tendered within one day after the expiration of the year allowed for redemption the taxes &c. on this land to the plaintiff, which he refused to receive.

There were many arguments set forth in this answer. It was sworn to. A special replication and a supplemental replication were filed, also very argumentative; but all the facts stated in the answer were during the progress of the ease admitted excepting only the fact, that the plaintiff, Theodore A. Williamson, was the tenant or agent of William W. Williamson, which was denied by the replications. Upon these disputed questions of fact the evidence in the case was conflicting.

It was satisfactorily proven, that William W. Williamson had been for many years a non-resident, a resident of Pittsburgh, Pennsylvania; that he owned two tracts of land in Tyler county, West Virginia, one a tract of one hundred and seventy-nine acres, which for years he rented to the plaintiff, Theodore A. Williamson, his brother, the other this tract of forty-five or forty-six acres in controversy, which he rented to another brother, Henry R. Williamson; that the last tract was an improved farm on the Ohio river, on which there was an old dwelling-house, and this land was good land, worth about $25.00 per acre; that Henry R. Williamson, to whom it had been rented, was an indifferent tenant and took little care of the farm, and on March 29, 1874, William W. Williamson wrote to his counsel the following letter:

"Allegheny Gity, Pa., March the 29th, 1874.

"A. D. Soper:

" Dear Sir: I rented that place that Henry lives on to Theodore and I sent a ritten notice to Henry in December by Theodore notifying him to give up possession to Theodore the first of April, as I had rented it to him for this year. Now he objects giving Theodore possession; he as burnt the rails on the place, and let the cattle in the orchard to destroy it. His wife says she will not give up possession to spite me. I wish you would see Henry and get him to give up possession; if not, compel him by law to give possession to Theodore. Times is so hard, that I can not raise that money for Mr. Roberts. I owe Elbert about nine hundred dollars. If you can sell that forty-three acres of land, to lift Elbert's mortgage and pay Mr. Roberts, I will be obliged to you and pay you for your trouble. I think you will have no trouble in getting twelve hundred for it anyhow. Henry told Theodore that he was not lawfully notified and he guessed he would stay. Theodore will show you the letter, then you will know if it is lawful.

"Yours with respect,

" W. W. Williamson."

This letter was shown to Henry R. Williamson either by A. D. Soper or by the plaintiff, Theodore A. Williamson, and in a few days afterwards, not later than the middle of April, 1874, he moved off from this farm and gave...