Robey v. Wilson

Williams, Judge: Plaintiff, Alva J. Robey, has appealed from a decree of the "circuit court of Harrison county made on the 24th day of • May, 1918, denying relief and dismissing his bill, in a suit 'brought to annul a tax deed as being a cloud upon his title to •'a lot situated in the Williams Addition to the City of Clarks- ■ iburg. He acquired title by.deed from Minnie W. Fenton and J. T. iFenton her husband, dated February 6th and recorded February 14th, 1911: As the law then was property was assessed as of the 1st of January instead of the 1st of April. ’’The lot was assessed for that year in the name of Minnie W. Fenton as Lot “No. 19 Williams Addition,” and the "taxes not being paid the lot was returned delinquent and sold ■by the sheriff in the month of December, 1913, in the name cof- Minnie W. Fenton and purchased by F. S. Wilson, the [739] -defendant, and not being redeemed within one year thereafter, the purchaser procured a deed from the clerk of the County Court of Harrison County, dated the 22nd of Jan-•ary, 1916. The cause was heard upon bill and exhibits, answer and general replication thereto and an agreed statement of facts. 'The record presents but one question, that is, whether or not there is a fatal error in the description of the lot in the assessment and the sheriff’s delinquent list. A plat of the survey of the lots and streets of the Williams Addition was made in October, 1900, and admitted to record in the clerk’s office of the county court of Harrison county on November •8th, following. Two contiguous lots on said plat, Nos. 18 and 19, front on Waldeck Street and extend back a distance of 135 feet, parallel with Lang Avenue to an alley. Lot No. -19 is bounded on one side by the line of Lang Avenue and fronts 53.5 feet 'on Waldeck Street. Lot No. 18 has a frontage of 40 feet on Waldeck Street and is bound on the west by Lot No. 19 and on the east by Lot No. 17. Both No. 18 and No. 19 extend back to an alley. J. B. Burch became the owner of both lots, Nos. 18 and 19, -and about the year 1900 divided the two into three lots, by lines extending across the lots from Lang Avenue, parallel to Waldeck Street, to the dividing line between lots No. 17 and -No. IS, thus making three lots fronting on Lang Avenue instead of two fronting on Waldeck Street as before. Said "Burch conveyed one of the newly formed lots, the one bordering on Waldeck Street to Minnie W. Fenton, November 17, 1900, and thereafter, in February 1911, she and her husband conveyed it to plaintiff. No plat of the new lots appears to "have been filed nor were they designated by new numbers; Mrs. Fenton’s lot was assessed on the land book as No. 19, and both the other new lots as No. 18. The conveyance of the lot in question from Mrs. Fenton and her husband to plaintiff describes it by metes and bounds, as being parts of No. 18 and No. 19, and as being situate “in what is known as James-E. Williams Addition” to the City of Clarksburg, and refers to the plat of said addition on record, mentioning the -deed book and page where found. [740] Before 'the clerk made his deed defendant had the survey- or to make a survey and report, giving a description of the lot by metes and bounds, and his description corresponds to that in the deed from Minnie W. Fenton and husband to plaintiff, and the clerk followed it in his deed to defendant. While the designation of the lot as No. 19 on the assessor’s books is not strictly accurate, such an error is not fatal to the validity of the tax sale. It amounts to a misstatement of the quantity of land sold, and such errors are cured by section 25, chapter 31, Code. The question presented is analogous to the one before this court in Cain v. Fisher, 57 W. Va. 492, where the sheriff’s ; report of sale showed a part of lot No. 138 was sold, whereas, the clerk’s deed conveyed the entire lot, referring to the surveyor’s report for a description of the lot sold. The difference between the two cases is, that there the lot sold was described in the sheriff’s return as only a part of the lot and here it is described as lot No. 19, meaning all of it, whereas the delinquent tax-payer’s lot was a part of No. 19 and a part of No. 18. The question is practically the same in the two cases, and falls under the head of misdescription of quantity, which is cured by the statute. Our conclusion is to affirm the decree. Affirmed.