Kelley v. Dearman

BRAiiisroisr, Judge : Mary T. Kelley, 27th, January, 1896, conveyed to D. L. Kelley, her husband, a tract of forty acres of land in Roane county. D. L. Kelley conveyed the land to Oscar Kelley, and he conveyed the land to Dearman. Mary T. Kelley brought an action of ejectment against Dearman to recover the land, and on trial of [50] the ease by the court in place of a jury judgment of recovery of the land was rendered in favor of Mrs. Kelley, and Deannan has appealed to this Court. • The deed from Mrs. Kelley to her husband is void, because a deed from wife to husband is void and passes no title. Smith v. Vineyard, 58 W. Va. 98; Mullins v. Shrewsbury, 60 Id 694. The defendant seeks to defend the action on the ground that after the conveyance by Mrs. Kelley to her husband the land was not charged with taxes in Mrs. Kelley’s name for five years at least, and was therefore forfeited for omission, under principles stated in Simpson v. Edmiston, 23 W. Va. 675, holding that where land is sold for taxes and omitted from the tax books for five years in the name of the former owner it is forfeited, though the land be charged and taxes paid in the name of the tax-purchaser, as in this case. The claim is made that Mrs. Kelley has no title to support ejectment, and Davis v. Living, 50 W. Va. 431, is cited, to show that one who has lost .title by forfeiture can not support ejectment. A question is made whether the evidence in this case shows the omission of taxes in Mrs. Kelley’s name; but that seems immaterial. If there was not such omission, there was no forfeiture, and Mrs. Kelley is entitled to recover, as her deed to her husband passed no title. On the other hand, if we say that there was such omission from the tax books, still there is no forfeiture, because the joajunent of taxes by Oscar Kelley would prevent a forfeiture for omission in the name of Mrs. Kelley, under principles several times stated in this Court. Sturm v. Fleming, 20 W. Va. 54, and discussed at large in a recent opinion by Judge Poeeeít-baegee in State v. West Branchv decided in December last; Bradley v. Stewart, 18 W. Va. 598; Hall v. Hall, 27 Id. 468; Lohr v. Miller, 12 Grat. 452. The defence insists that there is no privity between Mrs. Kelley and Dearman; that they claim in hostility to each other. It is true they do claim, so far as claim is concerned, oppositely; but they claim the very same land under the very same title. It is not a new and different title like that in Simpson v. Edmiston, a former owner and a tax-purchaser; but Dearman claims derivatively from Mrs. Kelley, the Yery same land for which she sued and under the same title, not a different, hostile title. It is a conflicting claim between them to the same thing under the same title. It is a [51] plain case of privity-in estate as to the same land, as the cases cited will show. It is a privity between grantor and grantee. No matter that the deed of Mrs. Kelley is void. It is one of successive ownership of the same land and title. That does not’ alter the fact that Dearman claims under and through Mrs. Kelley. Dearman claims that having paid taxes he gets Mrs. Kelley’s right by transfer of her forfeited title to him under the Constitution; but that proposition requires us to say that her title was forfeited, whereas we say it was not, and he cannot so get title. We therefore affirm the judgment. Affirmed.