Gordon v. Joyner

Buchanan, J., delivered the opinion of the court. The only question to be determined on this writ of error is whether a deed made to a purchaser at a delinquent land [348] tax sale before he has given the notice required by section 655 of Va. Code, 1904, is void, or whether the failure to give such notice is an irregularity which is cured by section 661 of the same Code. Section 655 provides, that after two years have expired from the date of a tax sale such purchaser may obtain a 'deed from the proper clerk, but declares that “in no case shall a deed be made to any such purchaser of any such real estate until after such purchaser has given” to the person or persons therein mentioned who are supposed to be interested in the land as owner or lienors and entitled to redeem the same, “four months’ notice of his said purchase . . . and the person entitled to redeem said real estate shall have the right to redeem the same at any time before the expiration of the said four months, although such time extend beyond the two years first mentioned herein.” Section 661 provides that where the purchaser of any real estate so sold, or sold in pursuance of section 666, has obtained a deed therefor, and the same has been duly admitted to record in the proper clerk’s office, the right or tifie to such estate shall stand vested in the grantee in such deed as was vested in the party assessed with the taxes or levies on account of which the sale was made, etc., etc., subject to be defeated only by proof (1) that the taxes, etc., for which it was sold were not properly chargeable thereon; (2) that the taxes, etc., properly chargeable on such real estate had been paid; (3) that the notice of the tax sale, where made to a person other than the Commonwealth, or notice of the application to purchase, in case the sale was made under sec. 666, had not been duly given; or (4) that the payment or redemption of. said real estate was prevented by fraud or concealment on the part of the purchaser. That section further provides that no suit shall be brought to set aside, cancel or annul such deed except for fraud, as therein provided, unless within two years after the same is properly admitted to record. [349] In order for a purchaser at a tax sale to be entitled to the benefit of the provisions of section 661, he must have obtained his deed in accordance with the provisions of section 655 — that is, his deed must be executed by the proper clerk (unless the clerk himself be the purchaser) after the expiration of two years from the date of the tax sale, and after the purchaser has given the notice required by that section. The authority conferred upon the clerk to execute the deed is a mere naked power not coupled with an interest and must be strictly complied with. No rule of law is more firmly settled than that in the case of a naked power, every prerequisite to its exercise must precede it. Sulphur Mines Co. v. Thompson, 93 Va. 293, 316, 25 S. E. 232, and authorities cited; Reusens v. Lawson, 91 Va. 226, 236, 21 S. E. 347; Flanagan v. Grimmet, 10 Gratt. 421, 435, and cases cited. In the absence of a curative statute, if the deed be executed by a person other than the official designated by law to make the deed, it is, of course, a nullity. If authorities be needed for so plain a proposition, they can be found in Judge Allen’s opinion in Flanagan v. Grimmet, supra. If the official be authorized to make the deed after a time named, and he execute it before that time elapses, the deed is also a nullity. Bowe v. City of Richmond, 109 Va. 254, 260, 64 S. E. 51; Bradley, Tr., v. Patterson, ante, p. 33, 70 S. E. 540, decided at the March term, 1911, of court; Minor on Tax Titles, p. Ill, and cases cited. And, a fortiori, the deed must be a nullity when the purchaser not only obtains it without complying with the conditions which entitle him to a deed — i. e., giving the notice required, and when executed by an official in plain violation of the statute which prohibits him from making the deed until four months after the required notice has been given. It may be true, as argued, that the legislature has the power to authorize a conveyance to be made to a purchaser [350] at a tax sale without requiring some such notice as that provided for by section 655; but it has not done so. On the contrary, the legislature has declared that the purchaser shall give notice of his purchase, and that he is not entitled to a deed until he has done so. There is nothing, as it seems to us, in section 661 which validates a deed executed to a purchaser at a tax sale in' violation of section 655. The deed must be made by the clerk. It cannot be made until after two years expires from day of sale nor until four months after the notice required by that section has been given. The purchaser at a tax sale must comply with the provisions of section 655 before he is entitled to a deed which will give him the benefit of the curative provisions of section 661. See Va. Coal Co. v. Thomas, 97 Va. at p. 537, 34 S. E. 486; Va. Building, &c., Co. v. Glenn, 99 Va. 460, 39 S. E. 136; Bowe v. City of Richmond, supra; Bradley, Tr., v. Patterson, supra. The provision in section 655 requiring the purchaser to give notice of his purchase as therein provided, was not in that section when section 661 was enacted as it now stands (March 7, 1900, Acts 1889-1900, pp. 1234-5), but was afterwards enacted by amending section 655 of the Code of 1887 by an act approved April 2, 1902 (Acts 1901-2, p. 779). Section 661, as found in Va. Code, 1904 (not as it was when the deed under consideration in the case of Va. Building, &c., Co. v. Glenn, supra, 99 Va. 460, 462, 39 S. E. 136, was executed) does provide that the deed of a purchaser at a tax sale, or under the provisions of section 666 of the Code may be set aside, annulled or cancelled by a suit brought for that purpose within two years from the recordation of the deed, upon the ground among others that “the notice of the tax sale where made to a person other than the Commonwealth, or notice of the application to purchase in case the sale was made under section 666, has not been duly given.” [351] Whatever may be the effect of that provision in section 661, as amended, upon the rights of a purchaser under section 666 where the notice required by that section has not been given (Va. Building, &c., Co. v. Glenn, supra), it has no reference to the failure to give the notice required by section 655, because at the time that provision was inserted in section 661 the purchaser at a tax sale was 'not required to give notice of •his purchase before obtaining his deed as he now is under section 655 (Code, 1887, and Acts 1901-2, p. 779), and because the language of the provision in section 661 shows that it refers to the “notice of the tax sale” when bid off by such purchaser, and not to the “notice of his said purchase,” as provided for in section 655, as amended. There are several reasons of public policy why a tax deed obtained by a purchaser who has complied with all the requirements of section 655 should cure irregularities in the proceedings which led up to the sale, and for which such purchaser is in no wise responsible, but there is no reason in a sound public policy or in good morals, why a purchaser at a tax sale who has failed in or refused to comply with the conditions upon which he is entitled to a deed and has obtained it in express violation of law, should be permitted to take advantage of his own negligence or wrong and have the same curative effect given the deed as if it had been obtained in accordance with law. The court is of opinion that, the deed in question having been executed not only without authority, but in plain violation of the positive prohibition of section 655 of the Code, under which it -was obtained, is a nullity, and that the trial court erred in not so holding. Since the plaintiff’s right to recover depended upon the validity of that deed, it follows that the judgment of the trial court, to whom all matters of law and fact were submitted, must be reversed; and this court will enter such judgment as that court ought to have entered. Reversed.