Willis' Ex'rs v. Commonwealth

• Decision Date: 23 November 1899
• Citation: 34 S.E. 460,97 Va. 667
• Parties: WILLIS' EX'RS. v. COMMONWEALTH.
• Court: Virginia Supreme Court

34 S.E. 460

97 Va. 667

WILLIS' EX'RS.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Nov. 23, 1899.

ESTATES—RENT CHARGES—TAXATION—REAL ESTATE—PERSONALTY—ASSESSMENT.

1. A ground rent is realty, and not personalty, and entry of ground rents on personal property book by commissioner of revenue, as a charge against the excutors of decedent, if liable to taxation, was insufficient.

2. Const. art. 10, § 1, and Code, § 45G, provide that all real estate, except that expressly exempted, shall be subject to taxation. The other provisions of the Code treating of taxation of real estate use the term "land" or "lot"; and Id. c. 2, § 5, subd. 10, provides that the words "land" or "real estate" shall include lands, tenements, and hereditaments; and, though such terms would include rent charges on land, the language of the statute shows that the legislature had in view taxation of "land" and "lots" as popularly understood, and no intent to tax such estates.

Error to hustings court of Richmond.

Action by the commonwealth against Willis' executors. Judgment in favor of plaintiff, and defendants bring error. Reversed.

Leaké & Carter and W. B. Tennant, for plaintiffs in error.

The Attorney General and H. R. Pollard, for the Commonwealth.

RIELY, J. Each of the conveyances set forth in the record conveys to the grantee the whole estate of the grantor in the realty described, subject to a fixed annual ground rent or rent charge, to be forever paid to the grantor, his heirs, personal representatives, or assigns, and also subject, by the express terms of the grant, to the right of distress and reentry upon default in its payment. The reservation of the ground rent constitutes in each case the sole consideration for the conveyance. Provision is made for the redemption of the land from the ground rent upon the payment of a specified sum after a certain number of years, but this right of redemption is wholly optional with the grantee. This is not an unusual provision in a conveyance of this kind, and in no way affects the character of the rent charge. The grantor has no power to compel the payment of the sum necessary to extinguish the rent All that he can require is the payment of the rent reserved, and, if it be not paid, he may resort to bis right of distress and re-entry. There is nothing on the face of the conveyances or in the record to warrant the conclusion that they are mortgages in disguise, or were resorted to forthe purpose of evading the payment of taxes. Ground rents, though not common in this state, are yet recognized as valid. Wartenby v. Moran, 3 Call, 491.

A rent charge or ground rent is held to be real estate, and subject to all its incidents. It descends, on the death of the owner, to his heir or his devisee, and is subject to curtesy and dower. Cadw. Gr. R. § 190; Co. Litt. 29a, 32a; and 1 Lomax, Dig. 561, 562. See, also, Code Va. §§ 2783, 2788.

Therefore, as such rents are in law realty, and not personalty, the entry of the ground rents in controversy upon the personal property book by the commissioner of the revenue, as a charge against the executors of the decedent, if liable to taxation, was improper, and should have been stricken therefrom, under the motion of the plaintiffs in error.

The question, then, arises whether the ground rents are, under the law, taxable as real estate; and this depends upon the further inquiry whether the legislature has made the necessary provision for their assessment for the purposes of taxation. It has not done so in terms.

Article 10, § 1, of the constitution provides that "all property, both real and personal, shall be taxed in proportion to its value, to be ascertained as prescribed by law"; and section 456 of the Code provides that "all real estate, " except certain specified real estate, which is expressly exempted from taxation, "shall be subject to such annual taxation as may be prescribed by law."

In pursuance of the constitutional provision, the legislature, in chapter 23 of the Code, has made numerous provisions for ascertaining and fixing every five years, by duly-appointed assessors, the value of all lands and lots, together with the improvements thereon, for the purposes of taxation; and, by section 479 of the Code, the commissioner of the revenue is required, when he ascertains that there is any patented land in his district which has not before been entered on his book, or, after being entered, has from any cause been...