Barton's Heirs v. Gilchrist

Green, Judge, announced the opinion ot the Court: In an action of ejectment the plaintiff must show a right to the possession of the premises at the time of the commencement of the suit. Code of W. Va. ch. 90 § 14 p. 519. The right thus shown must generally be a right to the possession of the premises against all adverse claimants and not against the defendant only. The general rule is, that the plaintiff must establish a legal title to the possession of the premises, as by the strength of his own title and not by the weakness of his adversary he must prevail. There are exceptions to this general rule, as for instance, where a party in peaceable possession of land is entered upon and ousted by one not having title to or authority to enter upon the land, the party ousted may recover the premises in ejectment upon his possession merely; and in such case his right to recover cannot be resisted by showing, that there is or may be an outstanding title in another but only by showing, that the defendant himself either has title or authority to enter under the title. Tapscot v. Cobbs and others, 11 Gratt. 172. But the case before us does not come under this or any other exception to the general rule. We will therefore first enquire, whether the plaintiffs have established a title against all persons other than the defendant ; for this they are required to do in this case, before they are entitled to recover the land in the declaration men — 229 — tioned. This they have done in this ease, though it is strenuously maintained by the counsel of the defendant, that they have not. It is admitted, that Seth Barton had title to this land. It is admitted, that he died, leaving children and this admission, gave title to this land to the children of Seth Barton. It is said, that this does' not follow, because he might have made a conveyance of the land or devised it by will. Certainly this may be so, but that it is so, does not appear in the agreed facts in this case; and it is agreed, that all the facts, upon which the cause is to be decided, are therein admitted. Upon these facts thus admitted the land on the death- of Seth Barton descended to his children or his heirs. In the same manner and on a like admission of facts the land has descended to all the plaintiffs named in the declaration. It is true, that the one undivided fifth part of this land, which thus descended to Thomas B. Barton, it is stated by the witness W. S. Barton, was devised to his widow Susan C. S. Barton and by her was devised to the witness, W. S. Barton. If these wills had been produced, they would have proven that one of the plaintiffs, W. S. Barton, had title to one undivided fifth of the land claimed; but as these wills have not been produced, the title in W. S. Barton is not proven. He could not testify to the existence of these wills and their contents without producing them. We must consider the case, as though these wills had not been made; but in that case W. S. Barton would have title to one undivided fifth of this land as heir to his father, Thomas B. Barton. For though it is not stated, that he was a son of Thomas B. Barton, it is stated that he was a grandson of Seth Barton, and as we have the children and grand children of all the other children of Seth Barton given, and W. S. Barton is not one of them, it must follow as clearly, as if expressly stated, that he was a son of Thomas B. Barton. When this suit was brought, Thomas B. Barton and Susan C. S. Barton were both dead, and no judgment should have been rendered in their favor; but this in no manner prevented a judgment in favor of all the other plaintiffs, for the 23d section of chapter 90 of Code of West ,Va. p. 520 provides, that the verdict may be in favor of such of the plaintiff's, as appear to have rights to the possession of the premises or any part thereof. It is true the next section adds, that “ where — 230 — any plaintiff appears to have no such right, the verdict as to such plaintiff shall be for the defendant.” But as there can be no verdict for Thomas B. Barton or his wife, only because they were dead, so and for precisely the same reason there can be no verdict or judgment against them. If then the plaintiffs established their right to recover, the judgment in this ease should have been in favor of all the plaintiffs except Thomas B. Barton and his wife, who were dead, when the suit was brought. And if there be no other error in the judgment of the circuit court, it should in this respect be amended and affirmed. The next and important enquiry in this ease is : Has the defendant established title in this land in himself? He claims it only under the two tax-deeds mentioned in the statement; and they convey to him this land and establish his title against the plaintiffs, unless they are invalid and void. Are they then, or either of them, valid or are they both illegal, null and void ? The statute-law in force, when this tax-sale was made, and these deeds were executed, is that contained in the Code of West Virginia chapter 31, page 186. Before examining the deeds themselves we will examine the steps in the acquisition of the defendant’s title, which preceeded the making of either of these deeds and determine, whether any valid deed of this land could have been made by the recorder to the defendant. The 25th section of chapter 31 of the Code of W. Va. pp. 193, 194, provides, that the recorder’s deed shall be valid “ notwithstanding any irregularity in the proceedings, under which the said grantor claims title, unless such irregularity appear on the face of the proceedings of record in the office of the recorder and be such, as materially to prejudice the rights of the owner, whose real estate is sold.” Our enquiries will then be confined to those irregularities, if any exist, in the proceedings of record in the recorder’s office. By the 14th section of chapter 31 of Code of West Va. pp. 189, 190, the first thing which should appear of record is the sheriff’s “ list of sales with the certificate. of oath attached.” The twelfth section provides, what this list of sales must show. In it, as appears by the tenth section of this chapter, p. 189, there should be a column headed “ Estate — 231 — held in the land sold.” This column was not filled up; and if the estate held in the land sold did not elsewhere appear in the list, I am of opinion, that it would be a fatal irregularity for the reasons assigned by Johnson, Judge, in Jones v. Dils, 18 W. Va. 759. But the nature of the estate sold does appear in this list, for this land sold was charged to Seth Barton’s heirs, as appears by the list; and as none but a fee simple estate descends or can be held by heirs, this mode of charging the land implied necessarily, that the estate sold was a fee simple, and therefore this irregularity would not vitiate the deeds. The list is in all other respects such, as the law required. The 14th section of chapter 31 of the Code of West Virginia, pages 189 and 190 provides, that this list with the certificate of oath attached shall within ten days after the completion of the sale be returned to the recorder of the county, who shall within twenty days thereafter make an accurate copy thereof in a well bound book and transmit the original to the auditor. The affidavit to this list in this case was not made till more than four months after the sale; and it was not returned to the clerk’s office for four months and five days. It was then ordered to be recorded, but that it ever was actually copied on the record-book, does not appear, or that it ever was transmitted to the auditor, does not appear. This section 14, while it requires this list and certificate of oath to be returned within ten days after the completion of the sale, does not in words require any record or note of the time to be made by the recorder ; but this is necessarily to be implied; Thus chapter 73 of the Code, section 2, page 469, provides, that the recorder shall admit to record any deed, contract, power of attorney or other writing, when it shall have been acknowledged or proved by two witnesses before the recorder. It does not as in the case of the return of the list of sales of the sheriff say in express words, that he shall note or record the time, when such deed was so acknowledged or proved ; but it is necessarily implied, that he musr do so; for if he did not, the principal object of recording these writings would be defeated. So too the time, when the list of sales of a sheriff is returned to the recorder’s office, must be noted by him, otherwise the requirement of the law, that — 232 — they be returned in ten days would be entirely defeated, as it would not appear, when they were returned. This noting by the recorder when the list of the sheriff’s sale and certificate of the oath thereto is returned to the recorder’s office being required by law, when he does so note it, as he did in the case before us, this time of the return becomes in the words of the law, section 25, chapter 31 of Code pp. 193,194, one of the facts appearing on the face of the proceedings of record in the recorder’s office. Or if the recorder fails to perform his duty by noting, when this list and certifi-tificate were returned, such omission is one of the factsappear-ing on the face of the proceedings of record in the recorder’s office. It remains to enquire, when this omission of duty by the recorder appears, or when he has performed his duty by noting the time of such return, and it appears, that the sheriff has failed to return this list of sales and certificate of oath attached within ten days from the completion of the sale. Are these such irregularities, “as,” in the language of the 25th section of said chapter 31, page 194, “materially to prejudice the rights of the owner, whose real estate is sold ?” While this return of this list of sales by the sheriff may in part be directed with a view of furnishing the means to the purchaser of taking the further steps necessary to perfect his title to the land bought by enabling him perhaps more readily to obtain his deed, yet it hardly seems necessary for such purpose, and that cannot be regarded as the only or as the principal reason for requiring this return to be made so promptly to the recorder’s office. It would equally as well have answered any such purpose, if it had been returned to the recorder’s office any time within one year from the day of sale, as the purchaser could not get his deed till after that time by the 19th section of chapter 31 cf the Code, page 192. A much more important object of requiring this list of sales to be returned to the recorder’s office so promptly was to furnish the owner of lands sold the means of knowing certainly as soon after the sale as practicable the name of the purchaser of his lands and the amount paid by him for the land at the sale, in order that the owner of the land sold might redeem his land within one year from the day of sale, and at the earliest practicable time to furnish to him this knowledge or the means of obtaining — 233 — it in the recorder’s office, and thus to furnish to him the longest practicable time, afterlhe can acquire this knowledge, within which to redeem his land. The 19th section of chapter 31 of the Code, page 190, provides, that the owner of lands so sold may redeem the same within one year from the sale thereof by paying to the purchaser the amount paid by him for the purchase of the land and such additional taxes théreon, as he may have paid, with interest on this purchase-money and taxes at the rate of 12 per cent, per annum. It is obviously therefore of importance to the owner of the land sold, in order that he may exercise this right, that the recorder’s office should as promptly after the sale as practicable furnish him the means of learning, who is the purchaser of his lands, and how much he paid for the lands. The prompt return to the recorder’s office of his list of sales by the sheriff furnishes the owner of the land the ready means of obtaining this important information. This means of thus readily acquiring this necessary information the owner of the land sold is entitled to have as promptly, as the law requires it to be furnished, that is within ten days after the sheriff’s sales are completed. Hence he has a direct and most important interest in the prompt performance of this duty by the sheriff. The failure of the sheriff to make this return within ten days after the completion of the sale or of the recorder to note, when this duty was performed by the sheriff, is such an irregularity as materially to prejudice the rights of the owner of the land sold within the meaning of the 25th section of chapter 31 of the Code, p. 194; and therefore it renders invalid any deed for the land made by the recorder to the purchaser. In the case before us the list of sales with certificate of oath attached, was not returned to the recorder’s office for more than four months after the sheriff’s sales were completed instead of within ten days, as the law required ; and this fact appears on the face of the proceedings of record in the recorder’s office The deeds therefore for this land made by the recorder to the defendant, the purchaser of this land at the sheriff’s sale, are necessarily invalid. The next enquiry is, whether when it appears in the recorder’s office, either that the recorder did not within twenty days — 234 — after this return of this list of sales to his office make an accurate copy thereof in a well bound book and transmit the •original to the auditor, or when it does not appear how long after the return of the list of sales by the sheriff to the recorder’s office it was actually copied on the record-book and •transmitted to the auditor, the tax-deed is thereby vitiated. If the recorder had by the law been bound to note in his record-book the time, when these acts were done, it appears to me, that if this time exceeded the twenty days from the return of this list of sales to his office, or if the time, when these acts were done, was not noted on the record-book, it would be an error in the proceedings appearing of record in the recorder’s office, which would be fatal to the deed afterwards made by him to the purchaser. The extent, to which a court can go in holding that only directory, which such a statute requires to be done, is thus expressed by Judge Pope in Mayhew v. Davis, 4 McL. 213 : “ But it is said that some of the requirements of the Legislature are only directory and may be dispensed with. Upon this it may be remarked, that a judge should rarely, if ever, take upon himself to say> that what the Legislature has required is unnecessary. He may not see the necessity of it, stil! it is not safe to assume, that the Legislature did not have a reason for it; perhaps it only aimed at uniformity. In that case the judge cannot interfere to defeat that object, however puerile it may appear. It is admitted, that there are cases, where the requirements may be deemed directory. But it may be safely affirmed, that it can never be, where the act, or omission of it, can by any possibility work advantage or injury however slight to any one affected by it. In such case it can never be omitted.” See also Taylor v. French, 19 Vt. 49; Sumner v. Sherman, 13 Vt. 609; Pinkham v. Morang, 40 Me. 587; Hill v. Mason, 38 Me. 461; Huntington v. Brantley, 33 Miss. 451; Kellog v. McLaughlin, 8 Ohio 114. The general views here expressed seem to me sound, but when applied to our law with reference to tax-sales it must be borne in mind, that certain irregularities our statutes declare shall not be fatal to the validity of the tax-deed, which but for these provisions would have been fatal to such validity. Leaving them out of consideration for the present I should — 235 — say, that the omission of the recorder to actually copy on the record-book the list of sales returned by the sheriff and to transmit the list to the auditor in twenty days from the return of such list would be fatal to the tax-deed made by the recorder to the purchaser at such sale. Dor though the owner of the lands has much less interest in the prompt doing of, these required acts than in the return of the list to the.re-, corder’s office promptly, yet he has an interest in these, which I can not say, is' not substantial. The copying of this list of sales would furnish to the owner of the land sold a somewhat easier mode of ascertaining, who was the purchaser of his land, and what price he paid for it, which as we have shown, it is important to him, that he should have promptly. Still the fact, that the original list of sales by the sheriff is on file in the recorder’s office, furnishes him this means of information though not in so convenient a form. The transmitting of the list of sales to .the auditor as soon, as the law requires,, may also be of importance to the land-owner, as he would learn after its transmission, who was the purchaser of his lands, and what price he paid, not only at the recorder’s' office but also at the auditor’s office. But the Legislature has, as I understand, declared, that the omission of his duty in this respect by the recorder, shall not vitiate his deed to the purchaser of the land at the tax-sale. The 25th section of chapter 31 of the Code pages 193 and 194 declares, that this tax-deed shall be valid “ notwithstanding any irregularity in the proceedings, under which ' the grantee claims title, unless such irregularity appears on the face of the proceedings of record in the office of the recorder, cfcc.” Now this failure of the recorder to copy this sale-list of the sheriff on the record-book in twenty days after its return to the office and transmit the original to the auditor, as required by the 14th section, will not appear of record in the recorder’s office, as this 14th section page 189-190 does not require the recorder to note on the record-book the time, when these acts were done by him. But it may be said, that it is his duty to make such note on the record-book, though it is not expressly required so to do, just as it is his duty to note the time, when the sheriff returned his list of sales to the office, and it is ordered to be recorded. I do not think so. — 236 — There is a great difference between the two. The general-duty of the recorder from the very nature and purposes of his office requires him, when any deed or other writing is brought to his office to be recorded, to note the time, when such deed or other writing is so brought and left at his office to be recorded; and the statute-law never expressly requires him to do this duty, it being necessarily implied from the character of his office. But not so with reference to the time, when a deed or other writing is actually copied on the record-book, or when the original of such deed or writing is withdrawn from his office. The recorder in such case never makes a note of the time, when such deed or writing is actually copied on the record-book, and though he does sometimes make a note of the person, to whom he has delivered the deed, after it is recorded, and perhaps in some cases of the time of its delivery, yet this is clearly no part of his official duty but is done simply for convenience, that it may be proven, that the original has been withdrawn from the office, and to save himself the trouble afterwards of making a useless search for it, if the original should afterwards be called for by any one. Now in the absence of any requirement of the statute-law, that the recorder should note on the record-book the time, when he actually copied the sheriff’s sale-list on the record-book and transmitted the original to the auditor, it seems to me, it is not his official duty to do so, just as it is not his official duty to make a note of the time, when he actually copied a deed or any other writing on the record-book, and when he delivered the original to any person. I can see no reason in the absence of any statutory requirement, why it should be his official duty to make any different note on the record-book with reference to such sheriff’s sale-list, which he is required to record, and a deed or other writing, which he is required to record. In each case it is his duty to state on the record-book the time, when the sale-list, deed or other writing was left with him to be recorded, but not when he actually copied it on the record-book or delivered the original from the office, after it was so copied on the record-book. If he should happen to note on the record-book, that the original sale-list was transmitted to the auditor, such a note would no .more be an official act, than a like note of the delivery of the — 237 — original deed to the grantee would be official; and therefore if such note was made and showed, that the original sale-list of the sheriff was not transmitted to the auditor till after twenty days from the time, when the sale-list was returned by the sheriff to the office, it would not vitiate the tax-deed, because when the law speaks of proceedings appearing of record in the recorder’s office, it means of course such, as the law requires should appear there. In the present case therefore the tax-deeds to the defendant would not be vitiated by the failure of the books in the recorder’s office to show, when the list of sale of the sheriff was actually copied on the record-book, or when the original was transmitted to the auditor. The next thing, which the law requires to appear of record in the recorder’s office, is the report of the surveyor under the 18th section of chapter 31 of the Code of W. Va. p. 192. This section provides, that when an entire tract of land was sold and not redeemed within one year, the purchaser &c. shall have a report made by the surveyor of lands for the county specifying the metes and bounds of the land sold and giving such description thereof, as will identify the same; and the recorder, unless there be some valid objection to the report, shall order the same to be recorded, and a record thereof shall be made accordingly. It is obvious, that a compliance with these provisions of the law is essential to the validity of the deed made by the recorder to the purchaser of the land at the tax-sale. And it was so expressly decided by this Court in Orr v. Wiley et al., supra. As I understand this 18th section, what is required to appear on the face of their report, is only the metes and bounds of the land and such a description thereof, as will identify the same, that is, such a description, as would enable any one to locate and find this land, and not such a description, as would identify the land named in the report as the same land named in the sheriff’s list of the sales-of land. But if this identity of the land sold and the land named in the surveyor’s report does not appear; as it is not required to a,ppear, on the face of the report, it is obvious, that it must in some way appear in the recorder’s office; — 238 — for by the 19th section of chapter 31, page 192, when the deed is made' by the recorder to the purchaser the description of the land is taken from this report, and the obvious object.of requiring such report is to give an accurate description by metes and bounds of the land sold, as the sheriffs sale-list gives a very loose and general description, too loose to make a deed from with any certainty as to what land was thereby conveyed. If this necessary identity of the land sold and that named in the surveyor’s report does not, as it need not, appear on the face of the report, it can only appear in the recorder’s office by the entry he makes, when the surveyor returns such report to him for recordation. The proper entry to be made by him is, that on such a day a plat and report of the survey of a tract of land (describing it as in the sheriff’s list of sales giving.the name of the parties, in whose name it was sold, as well as that of the purchaser) was returned by the surveyor of the county, and the same being examined and found to be properly made is ordered to be recorded. Such an entry would supply the identity of the land sold and the land named in the report, which did not appear on the face of the report. It is such an entry, as the recorder ought officially to make ; for it amounts only to specifying the case, in which the report was returned by the surveyor, and when it was returned, and these it is obviously his official duty to note on the record. When he does so, it amounts to a declaration by the surveyor, that the land sold and that named in the sheriff’s list of sales are identical, and it serves the same purpose, as if this was expressly stated in the report of the surveyor. Of course it would be fatal to the validity of the deed made by the recorder to the purchaser, if the face of the surveyor’s report showed, thatthis identity could not exist, the descriptions of the land being inconsistent, but if they be consistent, their identity may be shown by this entry made by the recorder. In the case of Orr v. Wiley et al., supra, this identity was in no manner shown; and it was decided, that the tax-deed was therefore invalid. In this case the report of the surveyor does not on its face identify the land sold by the sheriff with ;:that named in the report of the surveyor ; but the entry made — 239 — on his book by the recorder, when this report was returned, is in the proper form and does identify the laud named in the report, as that sold by the sheriff-. And there being no inconsistency between the description of the land in the surveyor’s report and in the sheriff’s list of the sale of the land, the proceedings were, so far as they respect this survey, regular and furnish no ground for assailing the validity of the tax-deeds. There were some other irregularities in the proceedings of record in the recorder’s office claimed by the counsel of the defendant in error as fatal; but I do not so regard them. Among these irregularities it is claimed, that the certificate of the oath attached to the list of sales of the sheriff did not conform to the statute ; that it does not appear to have been sworn to before any proper officer ; and that the list proven is not sufficiently indentified as the list returned by the sheriff. I do not think, that any of these positions of the counsel for the defendant in error are valid. Many irregularities in the deeds are also relied on as rendering them null and void. In the first deed it is claimed, that the recitals are not such, as are required by the 19th section of chapter 31 of Code of W. Va. p. 192. One of these objections seems to be well founded, as the deed does not show for what year or years the land was returned delinquent, or for what year’s taxes it was sold. See Dequasie v. Harris, 16 W. Va. 345; Burlew v. Quarrier et al., 16 W. Va. 108. A rather hasty examination of the second deed discloses no defects except those, which necessarily arose from its reciting correctly the time, when the sheriff returned said list to the recorder’s office, which involved a fatal irregularity, of which I have already spoken. I think the attempt to prove a tender is a failure. It was made after the expiration of the year and long after the first deed for the land had been made by the recorder to the purchaser, and it was rather an offer to purchase the defendant’s claim to this land or to get a release of it from him by paying him $ 100.00. And the offer was made upon a condition, that he would release .his claim or title. It does not affirmatively appear, that the attorney for the defendants had the $100.00 with him, nor upon what grounds the defendants declined to accept the offer. This does not amount to a tender. See Koon v. Snodgrass, 18 W. Va. 320. — 240 — I am therefore of opinion, that the judgment of the circuit court should be amended to read : “ Doth find, that the plaintiffs other than Thomas B. Barton and Susan O. S. Barton, who were dead, when this suit commenced, have title in fee to said land” instead of the finding, which was made; and the judgment should be so modified, as to be for the plaintiffs other than Thomas B. Barton and Susan 0. S. Barton; and when so modified the judgment should be affirmed and the defendant in error should recover of the plaintiffs in error their costs in this court expended and $30.00 damages; and this judgment should be certified to the circuit court of Monroe. Judges Johnson and Haymond Concurred. Judgment Amended and Confirmed.