Bond v. Pettit

Richardson, J., (after stating the case,) delivered the opinion of the court. We are clearly of opinion that the decree is without error, and should be affirmed. It is insisted on behalf of the appellant, Bond, that this case is, in every material particular, ruled by the case of Flanagan v. Grimmet et als., 10 Gratt. 421; and, to sustain this contention, it is claimed that the act of February 9th, 1814, (2 Rev. Code, 512,) under which that decision was made, is substantially the same as the law, found in the 38th chapter of the Code of 1873, and subsequent acts changing’and altering the same, and under which the present case must be decided. It would be a useless expenditure of time and labor to compare the several provisions of the act of February 9th, 1814, with those of said chapter 38, Code 1873, as a mere casual glance will show that the changes are numerous and most material. The decision in Flanagan v. Grimmet reversed the rule so long established and enforced by repeated decisions of this court; and, instead of making it incumbent upon the claimant under a sale of delinquent land to show that every prerequisite to the sale had been complied with, it made the deed itself prima facie evidence of such compliance, and sufficient to pass the title of the former owner, until it was successfully impeached by proof of irregularity coming from the contesting party. What was the rule, and the reason thereof, prior to Flanagan v. Grimmet, is aptly illustrated by Judge Allen, who delivered the opinion in that case. He said: " When the act of February 9th, 1811, was enacted, the legislature was fully aware of the construction which had uni-formly been put on laws of this description. New principles of law were more firmly settled, and, from'their influence on — 483 — the transactions of others, more widely known, than that, where the validity of a deed depends upon an act in¶ais, the party claiming under it is hound to prove the performance of the act; that in the case of a naked power, not coupled with an interest, the law requires that every pre-requisite to the exercise of such power should precede it; that the claimant, under a sale made to enforce a forfeiture, must show that the law has been strictly complied with; that the recitals in a deed of an officer selling for taxes were not even prima facie evidence of the regularity of his proceedings, and that these facts must be proved by evidence aUunde.’’’’ Citing numerous decisions of this court and of the Supreme Court of the United States. The decision, which reversed this rule, as already suggested, turned on the construction given to certain provisions contained in said act of February 9th, 1814, and especially on the 38th section thereof. Sections 24 and 25 directed the sheriff to advertise a sale of delinquent lands at the May, June, and July terms of the court of his county, and to publish the advertisement at least once every week for two months preceding the time of sale, in some newspaper published in the city of Richmond. Section 28 directed the sheriff to execute a deed to the purchaser at such sale, reciting the circumstances thereof, and setting forth particularly and truly the amount of the purchase-money. Section 38 provided that, after the time of redemption allowed had elapsed, the regularity of the proceedings under which the purchaser at the sale claims title shall not be questioned, unless such irregularity appear on the face of the proceedings. It was held : 1st. That by the circumstances of the sale which were to be recited in the deed, was not meant all the steps to be taken by the various officers, which preceded the sale, but the circumstances attending the sale itself—viz., that the sale was made at the time and place prescribed for the sale of lands returned delinquent; if less — 484 — than the whole lot or tract was sold, how much was sold; who was the purchaser, and the amount of the purchase-money. 2d. That it was not necessary that the deed should recite that the land had been advertised. 3d. That if the deed recites that the land was advertised at the court-house door of the county for tw'O months, but does not state that it was at the May, June, and July term of the court for the county, or in a Richmond paper, yet, as it was not necessary to recite in the deed that the land had been advertised, the recital in the deed of an insufficient advertisement is not an irregularity on the face of the proceedings which will avoid the deed. 4th. That the deed could not be questioned by parol proof of a failure to advertise the sale as the law prescribes. 5th. That if the deed is defective, it is competent evidence to show, with other evidence, an actual entry under a claim of title, and continued holding thereunder, so as to make out a title or right of entry by actual possession ; and that possession so taken and continued for the time prescribed might ripen into a right of possession, and so bar the right of entry of the opposing party. In that case the sale was made on the 15th day of August, 1815, and the deed from the sheriff to the purchaser was duly acknowledged and recorded on the 30th day of the same month. The deed recited an insufficient advertisement, and the trial court rejected it as a void deed under the statute; but this court reversed the court below, and held the deed admissible in evidence, upon the grounds above suggested; the real enquiry being as to the sufficiency of the advertisement recited in the deed. As there was in that case a deed duly executed and recorded, and as the case turned upon the effect of that deed, it is important to bear in mind that the rulings in that case must be referred to the existence and legal effect of that deed, interpreted in the light of said act of February 9th, 1814, under which said decision was made. — 485 — In the present case the appellant, Bond, who claims to have become the purchaser of the land in question at a sale of delinquent lands regularly made by the treasurer of Orange county, on the 23d day of August, 1886, and to he entitled to a conveyance of same from said treasurer, has received no deed; and the question is whether, under the circumstances, he is entitled to demand and receive from said treasurer a deed to said land. It sufficiently appears by the record that the 448J-acre tract of land involved in this controversy was returned delinquent for the non-payment of taxes for the years 1879, 1880, and 1881, and that the same was duly advertised for sale on the 23d day of August, 1886; but there is no sufficient evidence that the same was regularly sold on that day for the taxes due and unpaid for said years, or that there was ever any legal and proper report of any such sale. ■ By section 2, ch. 548, Acts 1883-’4, it is .provided that, “ On or before the first day of July, eighteen hundred and eighty-five, the auditor of public accounts shall cause to be delivered to the treasurer of each county or municipal corporation in the commonwealth a list of the real estate therein which, since the 1st day of April, eighteen hundred and sixty-five, shall have been returned delinquent for the non-payment of state taxes and county levies for all purposes thereon, and on which state and county taxes remain unpaid, with a statement showing, in different columns, in such form as may be prescribed by the said auditor, the amount due for such taxes on each tract or lot so returned delinquent for each year, and for interest on such taxes,” «fee. The 6th section of the same act provides the mode of making sale of delinquent lands by the treasurer. The 9th section provides that “ the treasurer, on receiving from any purchaser the amount of purchase-money, shall grant to him a receipt for the same, in such form as may he pre — 486 — scribed by the auditor, showing date of sale, name of person charged with taxes for which the land was returned delinquent, quantity of land charged with taxes, local description of land, amount of state taxes due, with interest and commissions, quantity of land sold, and description of same, name of purchaser, and amount of purchase-money; and the auditor shall furnish the several treasurers blank forms of such receipts.” This provision was obviously intended for the protection of the purchaser. Section 10 prescribes the fee to be paid by the purchaser to the treasurer for a receipt made out according to said prescribed form. Sections 11 and 12 prescribe with minute particularity a form for the treasurer’s report of sales, and the oath to be subjoined thereto; by which he is required to make a statement showing, in different columns, the amount due for such taxes on each tract or lot returned delinquent for each year. These specific provisions were manifestly intended as a convenient form of notification to the land-owner as to the year or years for which his land was returned delinquent and sold for taxes ; so that he might, within the time allowed for redemption, examine his tax-bills and receipts, and ascertain whether or not such taxes were properly chargeable upon his land, whether his land had been properly or improperly returned delinquent, and that he might have an opportunity of defending himself against any unjust or erroneous assessment or return, or to pay the taxes, if justly due, and redeem his land. Without such notice and opportunity of protecting his rights any land-owner would be liable to become the victim of injustice and oppression, and to forfeit his estate for a mere song. Hence, section 15, ch. 38, Code 1873, as amended by the act approved April 4th, 1877, Acts 1876—’7, p. 352, provides that the list of sales or report required by the statute, with the certificate of the required oath attached thereto, shall — 487 — be returned to the court of such county (whose officer may have made the sale), at the first or second term next after the completion of said sales, &c. By this provision the purchaser is protected as to any rightful claim acquired by him at the sale, and the owner, in whose name the land was returned delinquent and sold, is afforded an opportunity of gaming correct information, and of taking the steps necessary to the protection of his rights.. There was, in contemplation of law, no report of the sale— if any there was—in the present case. It is true there appears in the record what purports to be a report of the list of sales of delinquent lands made on said 23d day of August, 1886 ; but, so far from having been made, as expressly required by the statute, at the first or second term next after the completion of the alleged sale, it was, as appears on its face, not sworn to until the 22d day of August, 1887, just one year after the alleged day of sale. The pretended report is fatally defective in other respects. It shows, it is true, that the appellees, Bettit and Dripps, were charged with the delinquent taxes ; that the quantity of land was 448£ acres; that the amount of taxes and penalty was $33.93, the amount of levies and penalty $20.38, making amount of purchase-money $54.31; at which sum the appellant, Bond, became the purchaser at a sale made on the 23d of August, 1886. But it entirely omits the residence of the owners, the estate held, the local description of the land, the distance and bearing from the court-house, and the amount of county levy; and, so far from showing that the land was sold as delinquent for the nonpayment of taxes for the years 1879, 1880, and 1881, the report shows on its face that it was “ sold for non-payment of taxes and levies for the years 1876 to 1883, inclusive.” There is also a singular discrepancy between the amount of purchase-money set forth in said pretended report and that specified in the treasurer’s receipt to the appellant, Bond. In — 488 — the former it is stated at $54.31, while in the latter it is stated at $64.32. A suspicious circumstance connected with this receipt is that it shows a redemption by Bond, rather than a purchase of the land. It is as follows: “ $64.32-100.—Received of R. II. Bond (land bought at auction) sixty-four dollars thirty-four cents on account of the redemption of 448-2- acres of land returned delinquent for the non-payment of taxes and county levies, by the treasurer of Orange county for the years from 1876 to 1883, inclusive, (land in name of Smith Pettit and Jas. Dripps,) 4481 acres, as follows: • State tax, $51 73 County levies for all purposes, Commissions, Expenses of sale, 12 59 $64 32” There is another circumstance strongly tending to induce the conclusion that Bond’s original purpose was to redeem the land for the owners. It is a fact agreed that Bond occupied the land in question, as the tenant of the appellees, for the year 1879, the first of the three years for which it was returned delinquent, and had in his possession rent corn more than sufiicient to pay the taxes for that year; but, instead of doing so, turned it over to a Mr. Nason, as agent for Pettit and Dripps, the owners of the land. In fact, it is alleged by the appellees in their bill, and not denied in the answer, that, for the entire time since the purchase by them of the land in question, in the year 1877, their tenants were authorized and directed to pay all taxes and levies upon said land. And it is also a fact agreed that for the whole time since their pur — 489 — díase, except for the years 1879,1880, and 1881, the appellees have regularly paid the taxes on this land. Having thus paid the taxes for all the years prior and subsequent to the three years for which the land was returned delinquent, the appellees, who directed their tenants (who seemed to have had ample means for the purpose) to pay the taxes, may well say, as they do in their bill, that, “ without their knowledge, and by reason of some oversight which they cannot explain, said tract of land was returned delinquent for- non-payment of taxes for the years 1879, 1880, and 1881.” How, can it be said that the pretended report of sale, above considered, which is in neither form nor substance a report such as is required by the statute, which was made, not at the first or second term next after the alleged day of sale, and which was unauthorized by law, can be considered valid, or as constituting any just ground upon which to base a reasonable claim to the land in controversy ? We think not. Can it be said that, under and by virtue of proceedings so vague, indefinite, and self-contradictory, and so palpably opposed to both the letter and spirit of the law in respect to the sale of delinquent lands, the forfeiture of the land of the appellees should be enforced for the paltry consideration of $64.32 ? Surely not. For the pitiful sum named the appellant is here claiming 448J acres of land. To enforce such a claim, under the circumstances which characterize this case, would be to go counter to every known principle of equity and right. In Wilson v. Bell, 7 Leigh 22, which grew out of a sale of delinquent land, Judge Carr observed that sales and purchases founded on forfeitures deserve no indulgence from the court; and in the same case Judge Tucker said : “ These laws of forfeiture should be strictly construed, and there should be no leaning in favor of a transaction by which a tract of thirty acres of land is sacrificed to a purchaser for forty-eight cents.” The report of sale exhibited by the defendant, Bond, the — 490 — appellant here, with his answer, is fatally defective on its face, and must he treated as unauthorized and invalid for any purpose. This could well have been held under the ruling in Flanagan v. Grimmet, supra, decided under the act of February 9th, 1814, for, in discussing the effect of that act, Judge Allen said : “ I think the deed was improperly excluded from the jury upon the ground of any objection appearing on the face thereof. The deed, if proved to have been executed by a duly-qualified sheriff, should have been permitted to go to the jury as prima faeie evidence of such title as, according to the 37th section of the act of February 9th, 1814, it purported to vest in the purchaser at such sale, liable to be questioned, according to the 38th section of said act, for any irregularity appearing on the face of the proceedings.” For these reasons we are of opinion that the decree appealed from is clearly right, and the same must be affirmed. Decree affirmed.