Mosser v. Moore

49 S.E. 537, 56 W. Va. 478, 1904 W. Va. LEXIS 149

• Court: West Virginia Supreme Court
• Decided: December 13, 1904
• Status: Published

Opinions

BeaNNON, Judge:

Eliza E. McMillen owned three town lots, numbered 189, 190 and 191, in the town of Parsons, Tucker county.' The clerk of the county court of that county, O. S. Billings, made a deed, 10th January, 1903, conveying said lots to> J. Ii. Moore and A .A. Dorsoy, which deed recites that the sheriff of Tucker county, in January, 1903, sold to Moore and Dorsey the said lots for delinquency for taxes charged against them by the town of Parsons in the name of Eliza E. McMillen for the year 1899. These lots were once owned by Kutb N. Ryder, and she gave a deed of trust on them for debt, and afterward, while said deed of trust still rested on the. lots, Ruth N. Ryder conveyed them to said Eliza E. McMillen. Afterwards the lots were sold under said deed of trust and purchased by Thomas Keck for himself and as trustee for the benefit of J. K. Mosser and others. Then Mosser, Keck and others, the owners of said lots, filed a bill in Tucker county against Moore and Dorsey to set aside the said tax deed, claiming that it was wholly void. They also say in their bill, that after said tax deed had been made they tendered the tax purchasers-the sum which was properly payable to them, and thus offered to make a redemption, but that said Moore and Dorsey refused to allow the redemption, and then said Mosser and others paid to- the clerk of the coimtj'- court $27.25 as the amount paid by the tax purchasers with twelve per cent, interest. The answer' of the defendants admits.this offer to redeem, but says that the sum offered was too little, as it did not include the cost of the surveyor’s report and the clerk’s fee for making the. tax deed, which seems to be the fact. The cause -was heard upon the bill and answer and exhibits, and a decree was entered holding the tax deed valid and that whatever defect or irregularities existed in the tax sale were cured by the tax deed. From this decree J. K. Mosser and his associates have appealed.

The plaintiffs contend that the lots were never returned delinquent for the taxes of 1899; that the lots were never advertised' for sale as delinquent for said taxes as required by law and the ordinance of said town of Parsons; that-such lots were never sold for said taxes, as recited in the tax deed; and that no proceedings were had or notice given that would have given notice to any owner of said lots or airy one claiming interests therein-of any purpose on the part of the town or any public officer to-sell the same for taxes for 1899 or any other year. I suppose that no one will deny that there must be a delinquent list including the particular land sold for taxes. There can no more-bo a sale without delinquency, and a delinquent list, than there can he a sale without an assessment, because the statute requires such 'delinquency and delinquent list. I repeat that there can he-no salo without delinquency, and delinquency to sustain a tax sale must be proven by that delinquent list. There can be no one thing pointed out as necessary to sustain a tax sale that is more essential than a delinquent list, because it is the only evidence of that without which no sale can be made, that is, non-payment of the taxes assessed. If land is not on that list the Code, chapter 31, section 51, says that it shall be presumed' the taxes were paid. Tn this case there appears a copy of a list of real estate delinquent for taxes in Parsons for 1899 certified by A. C. Scherr, state 'auditor, having a first column headed “Names,” and a second column headed “Real Estate,” and a third column headed “Amt.” In the first column are the names of. twenty-nine persons, including Eliza E. MuMillen, and in the second column, intended for the specification of the real estate delinquent, there is not a mark, but it is entirely blank — in other words, not a tract or lot of real estate is mentioned. In the third column an amount of money stands annexed to each name,, that annexed to the name of Eliza E. McMillen being $18.14. We suppose that the taxes chargeable to her amounted to that sum; but whether for Teal estate or personalty we could not say, except that the caption says that the list is for real estate; but for wlmt real estate those taxes are charged and delinquent we are loft utterly in the dark. It is just as though there were-no delinquent list at all. That list is a nullity, vacancy. It leaves out that most essential element, specification and description of the land delinquent. In reference to the assessment list Blackwell on Tax Titles, section 223 says: “An assessment that does not identify the land is void. A description sufficient to give notice to the tax payer that his land is assessed which the legislature cannot dispense with, nor work a cure upon any proceedings defective in that regard. * * * * The test is. this: Is the description sufficient to identfy the land and give notice to the owner of the assessment, or is it so defective that it might probably mislead the owner? Notice, or at least the means of knowledge, is an essential element of every just proceeding which affects rights of person or property. But how can the duty of payment of taxes be performed without the identity of the subject matter of the duty be made known to him who is to perform it, by name or description?” 27 Am. & Eng. Ency. L. <183, says: “It is essential to the validity pf ,an assessment of real estate that it contain a description of the property sufficiently, accurate and certain to enable the owner readily to identify it as his, and to furnish a basis for the tax lien, and for proceedings in rem against the tract, should such become necessary to the collection of the taxes.” See Black on Tax Titles, section 112. Of course, this law would apply to the delinquent list. This delinquent list did not suggest to the owner of these lots any delinquency, and therefore it would mislead; it would give no notice to them that the lots were delinquent. By law this list must be returned to the town councils office, and a copy thereof to the state auditor. Persons hare right, upon exam-, ination in those offices, to be informed distinctly by that list that .their land is delinquent. This list, merely from the name of Eliza E. McMillen being found on it, suggests some delinquency; but that is not enough; it must tell what delinquency. We have the authority of section 25, chapter 31, Code, for saying that if an irregularity appear on the face of the proceedings in said offices, and be sueh as materially to prejudice and mislead the owner of the real estate sold as to what real estate was sold, and when and for what year, it will vitiatate the sale, unless it appear clearly that but for the irregularity it would have been redeemed. A delinquent list is an essential document in the “proceedings” in those'offices under that section.

Furthermore as to the sale. No sale list appears to prove the sale. If there had been such list, we presume it would have been furnished by the defendants. The hill says there was none, but the answer denies that allegation. Likely, as the deed recites that the lots were delinquent and sold, we have to say that some delinquent list and sale list were made and filed, as the ‘Code, section 29, chapter 31, makes it prima, facie evidence of its recitals.

Then, what is its character? Not only must there be such a list, because required by law, but it must have requisites of legal cartaintv like assessment and delinquent lists. We can only surmise the character of that sale list, if it ever existed, from the advertisement in a newspaper by the sheriff of Tucker •county of the sale for taxes under which the tax deed was made. In that section of it relating to the town of Parsons the name of Eliza E. McMillen is given in the column containing the names of persons charged with taxes, but in the column headed “Quantity of Land” there is nothing in connection with her name, nor is there in the column headed “Local Description”; but they are both blank as to property and description, and only in the column showing amounts of taxes do we find anything connected with the name of Eliza E. McMillen, the sums $23.83 for ■¿mount necessary to redeem, and $24.30 for amount of taxes, costs and fee for receipt. We are justified from this publication in saying that the sale list was totally defective in not specifying the property sold. We are further justified in this position by the sheriff’s receipt given to the tax purchaser for $24.30, which gives the name of Eliza E. McMillen us a person charged with taxes, and leaves blank the quantity of land. The receipt contains no further description or specifica-tion of the property sold than that it was in “Parsons Corpr.” which we take to mean in the town of Parsons. But what property in no way appears. So, we sa.y that those two essential things are entirely wanting, a delinquent list and a sale, list; they are so utterly defective as to be no lists. There is vacancy where there must be colorable substance; there is utter voidness -and emptiness where there should be body. Substantially there .are no lists at all. Surely we are bound to say that this want of record would mislead the owners, because it would give them no notice of delinquency and sale, and this being so the sale is not good, by the Code and by cases cited below. Where an essential part of the proceeding is totally wanting there is vacancy and the proceeding is void. Forqueran v. Donnally, 7 W. Va. 114. We cannot say that the recital of the deed from the clerk will prove delinquency and sale, since while these deeds may be prima facie evidence, the prima facie case is repelled by evidence showing those lists to be void, not voidable or merely defective. Total failure to file delinquent and sale lists does mislead. There is no warning in the place where warning ought to be found. We go to those lists in those, offices to see whether our land has been returned delinquent and sold. Barton v. Gilchrist, 19 W. Va. 223; Simpson v. Edmiston, 23 Id. 675; Gerke Brewing Co. v. St. Clair, 46 Id. 93; McCallister v. Cottrill, 24 Id. 173. These lists gave no notice to the owners of the lots. The form of delinquent list given in section 18, chapter 30, and of the sale list, in section 12, chapter 31, Code, show that the lists in this ■case do not conform to law.

' It appears from the Code that irregularity in the proceedings fixed by law leading to a sale for taxes will overthrow a sale, if it be of a kind to mislead those interested in the land, except as to defects cured by the Code. This follows from the language of the Code, chapter 31,- section 25, that the purchaser shall get good title, “notwithstanding any irregularity in the proceeding-under which the same was sold not herein provided for, unless such irregularity appear on the face of such proceeding of record in the office of the clerk of the county court,.and be such as materially to prejudice and mislead the owner.” From this two things appear, namely: that such defects as mislead are fatal, and seco3id that some defects are cured by the statute. Having. above seen that the defects in this casé are such as to mislead we must see whether they are cured by the statute. It is insisted that they are so cured by the clause of section 25 reading,. "And no irregularity, error or mistake in the delinquent list or in the return thereof, or in the affidavit thereto, or, in the list of sales filed with the. clerk of the county court, or in the affidavit thereto, or in the recordation of such list or affidavit, or as to the matter of laying off any real estate as sold, or in the plat, description or report thereof, made by the surveyor or other person, shall, after the deed is made, invalidate or effect the sale or deed.” We hold that this does not cure the defect in the delinquent and sale lists above specified. Those defects are not merely irregularities within the meaning of that curative provision. That provision supposes lists not utterly void, mere nonentities, vanities, but lists which have substance, which contain enough to make-them colorable lists under the law, but which have some defect in them. Surely the Code never meant to dispense wholly with a delinquent list or a sale list, and there are none in this case. We must not think that the word "description” in the statute above-quoted dispenses with a description of the land in an assessment list, or a delinquent or sale list. That refers to the description made by .the surveyor in his plat or report, not the description of the land in those lists, since description in those lists is necessary as notice to the land owners. Therefor we hold that this deed is void.

The next question is whether the land owner must pay the taxes and costs proscribed by that clause of section 25, which says that no tax deed shall be set aside.for any mistake or irregularity in the proceedings until the land owner shall pay purchase money paid for the real estate at the sale and subsequent taxes and costs of survey and report. We hold that such payment must be made as a precedent condition to the vacation of the deed. That clause of the statute is important. It is argued that as the defects pointed out above make the proceeding null, not simply voidable, it logically follows that there is no duty to> pay such taxes on the owners. This is a distinct clause in the statute. As the tax purchaser has paid taxes chargeable to the owner, equity calls upon the owner to repay the tax- purchaser money which the owner should have paid, and which the tax purchaser had paid for him. I think the statute means just that. 'This follows from another consideration. We have seen that there be some defects cured by the statute where the sale stands good, and clearly this refunding provision does not apply to those cases; therefore, it must apply to cases not cured by the statute, where the defect causes the failure of the purchaser’s title. In addition the bill offers to pay the purchasers the proper amount. It may be thought that this position is inconsistent with our holding on this point in State v. McEldowney, 54 W. Va. 695: but 1 distinguish that case from this, because in it the land was assessed contrary to the prohibition of law, and sold contrary to another prohibition, whereas in this ease it is not so. In this case the owners were chargeable with taxes; in that case ■ Cassey L. Newsom -was not chargeable with taxes by assessment, ■ as the state had other means of getting, omitted taxes from her. Cunningham v. Brown, 39 W. Va. 588.

Defendants resist the vacation of the deed because not enough monev was tendered. But a tender was made. There was lacking only a small sum, which should not defeat relief. Wyatt v. Simpson, 8 W. Va. 394. Redemption statutes are to be liberally construed. Danser v. Johnson, 25 W. Va. 381. Besides, the defendants lydused redemption because too late, and this dispenses with the question of the amount. Koon v. Snodgrass, 18 W. Va. 320; Thompson v. Lyon, 40 Id. 87.

Therefore, we bold that the, tax deed is utterly void, and we reverse the decree of: the circuit court of Tucker county and send the case back to that court- with direction to ascertain the proper sum to be paid to Moore and Dorsey by the owners of the three lots, and then to enter a decree vacating the said tax deed on payment to Moore and Dorsey of the proper sum.

Reversed.

Note by

BraNNON, Judge :

I add this note, though likely not material. What property was sold by the sheriff belonging to Eliza McMillen? Judging by the record of the sale he could not have cried iihe salé of any particular piece of her property. It has been suggested' that the sale 'would apply to any piece of her property in Parsons. This cannot possibly be sound law. Assessment list, delinquent list and sale list must describe it. In addition to-authorities above cited I add Cooley on Taxation, 3d ed., 740. “In listing the land it must be described with particularity sufficient to afford the owner means of identification and not to mislead him.* * * The result of the whole is, that where-the assessment wholly fails to lead to identification, so that neither the owner nor the officer can tell that his land is taxed, the duty of payment cannot be performed, and the assessment is void/’ The suggestion that the sale might apply to any piece of property of Eliza McMillen is accompanied by the admission that this defect is such as would vitiate the deec^ and ¡is not cured by statute, and yet it is said that the sale is not void, but only voidable. Iiow it can be that this defect is such as to mislead, and such as is not cured by section 25, chapter 31, Code, and yet -be only voidable, not void, I do not see. I repeat that it is void because of those lists, as to Eliza McMillen, being no lists at all, not colorable lists even, but so radically defective as to be void as to her. It cannot be thought that those delinquent and sale lists can' be aided by oral evidence to prove what property was meant to be returned delinquent and sold, or what property the sheriff actually cried out. The record is the sole test as to this. McLain v. Batton, 50 W. Va. 121.