Leach v. Weaver

Lively, Judge: Demurrer to the bill was overruled and the court has certified its decision in so ruling to this court for review. — 50 — The bill is to cancel a tax deed and remove it as a cloud on plaintiff’s title. Ora Leach, the plaintiff, has a deed to and possession of 23 acres and about 88% poles of land on Laurel Creek of Valley River in Philippi District of Barbour County, the title to which was deraigned from John W. Male, who, in 1903, owned a tract of 190 acres, out of which the land in controversy was carved. John W. Male conveyed 29 acres, 88% poles to Amanda Male on May 4, 1904, who, in the winter of 1909, conveyed six acres to three grantees (2 acres to each)' leaving remaining 23 acres and 88% poles. On June 16, 1909, she conveyed out of the remaining? acres a ten acre tract to John H. Male, which left her at that time 13 acres, 88% poles. On September 25, 1909, she conveyed all of this land back to John W. Male, describing it as the same land which was deeded to her on May. 4, 1904, by John- W. Male. On March 23, 1910, John W. Male conveyed this land to Aaron Male, describing it as the land deeded to him by Amanda Male. On April 13, 1910, Aaron Male deeded this same tract to Arch Male, describing it as the land deeded to him by John W. Male, March 23, 1910. By a joint deed, August 1, 1912, Arch Male, Sr., and John H. Male (their wives joining therein) conveyed two tracts of land to Arch Male, Jr., and Huida Male (his wife) ; the first tract described being that deeded by Arch Male, Sr.,- and wife, and designated as the same land conveyed by John W. Male to Aaron Male on March 23, 1910, containing about 14 acres; and the second tract, which is designated as being conveyed to the grantee by John H. Male and wife, is described as the same land conveyed by Amanda' to said John H. Male on June 16, 1909, and is described by metes and bounds and contains" 10 acres. The tax delinquency, which resulted in the tax deed in question, occurred in the year 1912, when Arch Male is shown on an excerpt of the delinquent list for that year as delinquent in the payment of taxes on a tract of 19 acres lying on Laurel Creek. Plaintiff derived title to his land through Arch Male, Jr., who on November 7, 1914, conveyed his two tracts containing 24 acres more or less to Elias Gall, who — 51 — afterwards, on November 13, 1916, conveyed the land designated as composed of two tracts, one containing 13 and 33-100 acres, and the other 10 acres, to the plaintiff. The tract of land returned delinquent for non-payment of the taxes of 1912 in the name of Arch Male and as containing 19 acres on Laurel Creek was sold by the sheriff in 1914 and purchased by T. H. Proudfoot for $4.45, who assigned the benefit of his purchase to Wm. T. George, to whom a tax deed was made by the County Clerk on December 22, 1915, and who afterwards conveyed the land to defendant A. D. Weaver on December 13, 1917. The tax deed made to Proudfoot contains the same description, metes and bounds, as the 29 acre and- 88% poles conveyed by John W. Male to Amanda Male, dated the 4th day of May, 1904, and therefore includes the three tracts of two acres each conveyed by Amanda Male in the winter of 1909 to three grantees, Stella Male, Amanda Norris and Lucinda Croston, and also includes the 10 acre tract conveyed by Amanda Male to John H. Male, and afterwards conveyed by him to the predecessor in title of the plaintiff on August 1, 1912. The tax deed evidently takes in too much territory as shown by the bill and exhibits. It will be seen from an inspection of the deed from Arch Male, Sr., to Arch Male, Jr., dated August 1, 1910, that the grantor only claimed to have about 14 acres by virtue of the deed to him from Aaron Male. Again it will be seen from an inspection of the- excerpt from the land book of 1912, Exhibit No. 1 with the bill, that John H. Male had his 10 acres on Laurel Creek, deeded to him by Amanda Male, assessed to. him, and on which the taxes for that year were evidently paid. The excerpt from the delinquent list, Exhibit No. 2, shows that he was not delinquent for that year. There is a presumption that a person has paid his taxes until it is otherwise shown. Cunningham v. Brown, 39 W. Va. 588. The same may be said of the owners of the three 2 acre tracts included in the boundaries of the tax deed. But these owners are not parties and are not complaining of the cloud, if any, upon their titles. Prom the allegations of the bill, and from the exhibits, it is shown that the tax deed, which in52 eludes in its metes and bounds tbe Jobn H. Male 10 acre tract now owned by tbe plaintiff, is a cloud upon tbat title. Is Ibis sufficient to sustain tbe bill? It does not appear on wbat grounds tbe circuit court overruled tbe demurrer. A proceeding of tbis bind is to test tbe sufficiency of a pleading. And where tbe appellate court finds one part of tbe bill sufficient where there has been a general demurrer which was overruled, it will affirm tbe decision without inquiry as to the sufficiency of tbe other parts. Wheeling v. Telephone Co., 82 W. Va. 208. But tbe specific questions certified by tbe court for answer are: (1) “Does tbe fact tbat the delinquent, Arch Male, bad but 13y2 acres of land, whereas be was returned delinquent for 19 acres of land in the year 1912, invalidate tbe deed to W. T. George, executed by tbe clerk of tbe county court of Barbour County? (2) Does section 25, chap. 31, Code, cure such defect in tbe assessment as propounded in question No. 1?” The other points raised by counsel for defendant on tbe demurrer seem not to have been of sufficient importance or difficulty to influence tbe discretion of the trial judge and to cause him to certify them for review. The certification is on tbe court’s own motion, and not on tbe joint application of the parties. We are cited to Cunningham v. Brown, 39 W. Va. 589, to sustain tbe proposition tbat tbe misdescription of tbe quantity of land owned by Arch Male (19 acres instead of 13 acres 88y2 poles) is fatally defective and avoids tbe tax deed. That case was where the 34 acres owned by Elizabeth Cunningham were omitted from the assessment for the year 1883, in her name, but, without her knowledge or notice, included as an undistinguished part of a larger tract of 65 acres and assessed in tbe name of John Cunningham, a former owner, returned delinquent in bis name as a 65 acre tract and sold as bis. Tbe following year her 34 acre tract was placed on thej land book in her.name and was back taxed for tbe year 1883. The land having been assessed and returned delinquent in the name of another with an acreage nearly twice as — 53 — large as that owned by her, she conld have had no notice, and the tax; deed was not made valid by the curative section (now sec. 25, chap. 31, Code). Moreover, the court held that her 34 acre tract not having been returned delinquent in her name for; the year 1883, there was nothing to rebut the presumption that she had paid her taxes for that year. We are also cited to Metz v. Starcher, 60 W. Va. 657, which holds that there must be a delinquent list returned in order that irregularities, errors and mistakes therein can be cured by the curative section. The heading of the paper purporting to be a delinquent list was obscured by a paste board securely fastened to the paper by metallic rivets concealing the entire heading; required by the statute, except a few words, and it was decided that such paper in such condition was not a delinquent list. That case has no application here. In the case at bar there is an assessment in the proper name of the owner, Arch Male, and a delinquent list showing delinquency in Arch Male for the year 1912. It is true that the bill alleges that the delinquent list is defective because “no certificate such as is required by law is made by the sheriff of said county to said delinquent list,” as appeared from an excerpt from the delinquent list filed as an exhibit. Just what is meant by “no certificate” we are unable to say. Possibly it means the oath required to be appended under sec. 21, chap. 30, Code. But it will be observed that the excerpt only is before us, and not the complete delinquent list. It is not averred that no such affidavit appears on the delinquent list as returned. The only question here is, whether the fact that Arch Male was returned delinquent for 19 acres instead of for 13% acres would invalidate the tax deed. It refers solely to the discrepancy in' the amount of acreage charged from what should have been charged, (his true acreage), as shown by the delinquent list. Section 25, chap. 31, Code, provides: “And no irregularity, error or mistake in the delinquent list, or the return thereof; or in the affidavit thereto *** shall, after the deed is made, invalidate or affect the sale or deed.” It also provides: “If more than one tract of land be charged as one, or the — 54 — quantity thereof *** he misstated, all such right title, interest •and estate as is hereinbefore mentioned, shall nevertheless pass to and be vested in the grantee in such deed.” But if there was no such statute curing misstatement of the quantity, could Arch Male have been misled by the fact that his land was described as containing 19 acres? The assessment and delinquent lists, respectively, show that he was assessed and returned delinquent in his own proper name for a tract of land on Laurel Creek where he owned his 13% acres, and we think the discrepancy in the acreage charged is not such an irregularity as to materially prejudice or mislead even if the curative statute did not so state. He had notice of the assessment of his- land, and the excess acreage charged to him on the assessment, and its appearing on the delinquent list was sufficient to arrest his attention and impel an investigation. ¥e have held in numerous eases that a departure from or inaccuracy in the name of the person assessed and delinquent is not sufficient to render void the tax deed. See Jarrett v. Kimbrough, 105 S. E. 918, where the name on the delinquent list and proceedings was “Norena Lambert” instead of Norma E. Lambert; Friedman v. Craig, 77 W. Va. 223, where the owner's name on the delinquent list appeared as “Joseph Fredman” instead of Joseph Friedman. However there are other cases involving assessments where there have been such glaring errors in the names of the persons assessed, that they have been held to be fatal. Male v. Moore, 70 W. Va. 448, where the assessment was made to “Hoon-brook” when the owner’s name was Hornbrook; Collins v. Reger, 62 W. Va. 195, where the assessment was in the name of “Martha Hedrick” instead of Martha Helmiek. These cases serve to illustrate that if the departure or inaccuracy is only such as would put the owner on inquiry, or that a reasonable person would not be misled or deceived, then there is no fatality to the tax deed. These holdings are illuminating on the question here involved, inaccuracy in the acreage charged and returned delinquent, even if the curative statute did not expressly cure inaccuracies in the quantity of a tract. But the curative section expressly says that if the quantity — 55 — of land charged be misstated, nevertheless the title of the owner shall pass by the tax deed. That clause controls this case. The acreage need not be truly stated. It would be impossible and impracticable to do so in all cases. See Coal Co. v. Burgess, 86 W. Va. 16. In Cain v. Fisher, 57 W. Va. 492, we held that where the record of the sale and recital in the deed were not in accord, the purchaser at the tax sale took the entire interest of the delinquent in the lot of land, all of the lot, although it was charged on the land book and sold by the sheriff as a part of the lot, section 25, chap. 31, Code, operating to cure inaccuracy in the description. And where the assessment and sale of a town lot, designated by number, was made, and the tax deed included a part of the lot designated and part of an adjoining lot owned by the delinquent, the deed was upheld under the curative section. Roby v. Wilson, 84 W. Va. 738. We are of the opinion that the incorrect acreage set out in the delinquent list of 1912, being 19 acres instead of 131^ acres (the true amount), in the name of Arch Male and alleged to have been owned by him at that time, does not, alone, invalidate the tax deed executed by the county clerk to defendant George; and so answer the specific question certified. Affirmed.