Willis's Ex'or v. Commonwealth

Riely, J., delivered the opinion of the court. 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 light of distress and re-entry 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 his 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 for the 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. [670] 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 deyisee, and is subject to curtesy and ■dower. Oadwalader’s Law of Ground Kents, sec. 190; Coke on Littleton, 29a, 32a; and 1 Lomax Digest, 561-62. See, also, Code of Virginia, secs. 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. Art. 10, sec. 1, of the Constitution, provides that “ all property, both real and personal, shall be taxed in prpportion to its value, to be ascertained as prescribed by law”; and sec. 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 sec. 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, qr,'after being entered, has from any cause been omitted for one or more years, to make •an entry thereof, and of the name of the owner; and if there be no reassessment of the value thereof, to make such assess [671] ment by reference to the assessed value of contiguous lands similarly situated. By sections 481 and 484, he is required to raise or reduce the value of the land as before charged, as it may have been increased or diminished in value by new buildings and enclosures, or by the destruction of former ones. By section 439 the Register of the Land Office is required, when an assessment is to be made, to furnish a list of all grants of land within each county and corporation issued during the year next preceding the assessment, which, together with a copy of the land book for the county or corporation and a list of the conveyances recorded since it was made out, the clerk of the court of the county or corporation shall deliver to the assessor or assessors of lands; and by section 441, it is made the duty of the ás-‘ sessors to examine all the lands and lots, with the improvements thereon, within their respective counties, districts, and corporations, and, upon such examination, ascertain and assess the cash value thereof, upon forms furnished by the Auditor of Public Accounts so arranged as to show the lands and lots in the district of each Commissioner of the Revenue separately. By section 464 each Commissioner of the Revenue is required to make out his land book in such form as the Auditor of Public Accounts may prescribe; and the Auditor is required to arrange the book so that it shall shew in one table the tracts of land, and in a separate table the town lots. Sections 465 and 466 prescribe minutely how the Commissioner shall enter and describe in the land book each tract of land and town lot. He shall, in entering tracts of land, set forth, among other things, the number of acres in the tract, the value of the land per acre, including the buildings, a description thereof with reference to its location, and its distance from the court-house; and, in.entering town lots, he shall set forth, among other things, the number of the lot, a description, where the person does not own the whole lot, of the part which he owns, the value of the buildings on the lot, and the value of the lot including the buildings. [672] By the rules prescribed for the construction of statutes, it is provided that the word “ land ” or “ lands ” and the words “ real estate ” shall- be construed “ to include lands, tenements, and hereditaments, and all rights thereto and interests therein, other than a chattel interest,” (Code, Ch. 2, Sec. 4, tenth sub-division), and, therefore, the word “ land ” or “ lands,” as thus defined, is sufficient to include ground rents; but it is plainly apparent from a comparison of the various statutes providing for the assessment of the value of lands and lots for the purposes of taxation, of which the principal ones have been referred to, and an examination of their language, that the Legislature-, in enacting, these statutes, ]iad in view only lands and lots as- popularly understood, and not in mind such real estate as a rent charge, or ground rent. They contain no provision for the assessment of the value of an estate of this character in real property, nor any language that can be so construed. This kind of estate in land is separate and distinct from the land itself, and is clearly not embraced within the provisions of the said statutes. There are no others providing for the assessment of lands and lots, and consequently, the Legislature has made no provision for ascertaining and assessing for taxation the value of ground rents. Whether the omission was intentional or unintentional, the result is the- same. It is not the province or within the power of-the court to make the assessment; Ho property can bq assessed with taxes until the Legislature has made proper provision for this purpose. Va. & Tenn. R. Co. v. Washington County, 30 Gratt. 471; and New York, &c. R. Co. v. Supervisors, 92 Va. 661. The value of the lots, together with the improvements thereon, in the case at bar, is assessed under the statutes referred to, and the taxes, according to such valuation, paid by the respective grantees; and taxes on the ground rent, in the form of income, are paid as it'is received, and thereafter upon the property in which it may be invested. The value of the estate in the ground rent is not the amount of the annual rent, but the value of that— [673] the corpus or principal—which produces the rent, of which it is the fruit or product. But until the Legislature has seen fit to provide for its taxation, and prescribed how its value shall be ascertained, it cannot be assessed with taxes. In the State of Pennsylvania, and, perhaps, in some of the other States, where ground rents prevail, special provision has been made by legislative enactment for their assessment as separate, distinct, and independent estates from the land upon which they are reserved. It follows that the Hustings Court erred in refusing to exonerate tho plaintiffs in error from the payment of the taxes described in their notice and motion, and this court will enter such judgment as it ought to have entered. Reversed.