Fountain v. Joullian

Holden, J., delivered the opinion of the court. .The appellants filed their bill in the chancery court of Hancock county, seeking to confirm their tax title to an undivided one-half interest in certain real estate .sold to them by the tax collector of Hancock county in March, 1896, for taxes of 1895. A demurrer, filed by the defendant below, appellee here, was sustained to the bill. It appears from the record that blocks sixty-one, sixty-two, sixty-three, sixty-four, sixty-five, sixty-six, sixty-seven, sixty-eight, and sixty-nine, Gulf View, section nineteen, township nine, range fifteen west, thirty-six acres, were assessed to “Waits and Burns’’ .at a value of three hundred and sixty dollars, and that Waits and Burns owned this 'property jointly, each owning an undivided one-half interest therein. Burns went to the tax collector and paid the taxes on his undivided one-half interest in the land and received a receipt from the tax collector. No taxes being paid on the other undivided one-half interest of Waits, the tax collector advertised and sold Waits’ undivided half interest in the property, when it was bought by Fountain and Farve, and upon this tax title the appellant relied in the court below. The appellee contended before the chancellor, with which contention the chancellor agreed, and urges here that the tax sale of Waits’ undivided half interest in this property was void, and the appellee here being the owner of Waits’ undivided half interest in the land has a good title to it. It appears from this record that the tax collector attempted to change the original assessment of this land and to apportion an undivided one-half interest in Wait and the other interest in Burns, and that upon the failure of the payment of the taxes due on Waits’ undivided half interest he proceeded to sell this portion of the .land “as an undivided one-half interest.” The tax [820] collector did not endeavor to separate or apportion the land so that a distinct portion of it could be sold for the taxes, but be undertook to apportion an undivided one-half interest in the whole land not as originally assessed, and , sell the undivided interest. An assessment of taxes against land is a proceeding primarily against the land and the sale is of the fee in the real estate. It is immaterial as to whom it is assessed. We have no statute authorizing a tax collector to change-an assessment and apportion the different undivided interests to any number of parties who may claim such interests therein and sell such undivided interests, and' we think to do this would be bad policy and illegal, and in all instances he should collect the tax on the-land,'and not on any individual, undivided, inseparable, interest therein. If it were permissible for the 'collector to change the assessment and collect separately the-taxes upon as many different interests as he might apportion out, this would lead to confusion and complications not authorized by law, and against public policy. Toothman v. Courtney, 62 W. Va. 167, 58 S. E. 915; 37 Cyc. 1340, 1341; Corbin v. Inslee, 24 Kan. 154; Sargent v. Sturm, 23 Cal. 359, 83 Am. Dec. 118; Macdonough v. Elam, 1 La. 489, 20 Am. Dec. 284; Savings Bank et al. v. Todd, 47 Conn. 190. In view of these conclusions we hold that the tax sale in this case was void, and the decree of the lower-court is affirmed. Affirmed..