Wagner v. Beavers

102 S.E. 668, 85 W. Va. 631, 1920 W. Va. LEXIS 47

• Court: West Virginia Supreme Court
• Decided: March 2, 1920
• Status: Published

Opinions

Ritz, Judge:

Plaintiffs became the owners of lot ISTo. 3 in the town of Bramblett in Wyoming County, in the year 1915. Prior to the conveyance to them the lot was entered upon the land books for the year 1915 in the name of their vendor, and the taxes thereon charged against the same in his name. These taxes were not paid and the sheriff returned the lot delinquent for the non-payment thereof, and the lot was subsequently offered for sale in satisfaction of the taxes charged against it, at which sale the defendant, according to the sheriff’s return of sales, purchased one-fourth of the lot for the taxes and charges and, according to the receipt given him by the sheriff, purchased the whole thereof for such taxes and charges. The lot was not redeemed within the time required by law, and upon application of the defendant the clerk of the county court made a deed to him conveying the whole lot. Alleging many irregularities in the tax sale, and also alleging that only one-fourth of the lot was purchased by the defendant for the taxes, and exhibiting a certified copy of the sheriff’s return of sale as evidence of this fact, the plaintiffs brought this suit to cancel said tax deed. The defendant by his answer denied all of the allegations of the bill except the allegation that the sheriff’s return of sales showed that he only purchased one-fourth of the lot, but as to this allegation he alleged that he had in fact purchased the whole lot, and exhibited the receipt issued to him by the sheriff as evidence of this fact. The case was submitted upon this state of the record, and the circuit court dismissed the plaintiff’s bill. It will be noticed that the only question involved is whether the receipt issued by the sheriff to the purchaser or the return of sales made by the sheriff to the county clerk will control in making the deed. If the return made by the sheriff to the county clerk’s office controls, then the county clerk improperly made a deed for more than one-fourth of the lot. If, on the other hand, the receipt issued by the sheriff to the purchaser is the paper which controls, the deed made by the clerk is proper. Under our statute the sheriff making a tax sale gives to the purchaser a receipt showing the land sold, in whose name it is sold, the amount paid therefor, and the interest purchased therein, together with certain other information. This receipt is not recorded, and is not in any sense, under the statute, a muniment of title, but is simply a memorandum in the possession of the purchaser showing the transaction had by him with the sheriff. The law does, however, require the sheriff to make a report of the sales so made by him to the clerk of the county court. This report he must make under oath, and it must contain among other information the description of the land sold, the party- in whose name sold, the name of the purchaser, and the interest purchased. This report is required to be recorded, and is a muniment of title of the tax purchaser. The object of this report is to perpetuate the facts showing the transaction, to enable the owner of the land to learn from the record the fact that his land has been sold, and to whom, and to guide the officer entrusted with the power in the execution and delivery of a conveyance to the purchaser. From this return the owner or any other person interested ia always enabled, by going to the office of the county clerk, to ascertain with certainty the evidence of the sale, and to protect his interest in the premises by redemption; and the officer entrusted with the power of making conveyances is enabled to ascertain the description of the land, the name of the purchaser, the quantity sold, and every other thing which the law requires to be stated in the deed. It is argued that the receipt given to the purchaser is a paper of superior dignity, for the reason that both parties are represented in its execution, while the sheriff’s return of sales is an ex parte document. We do not think the faith and credit to be given to these papers is to be thus determined, but rather is their status to he fixed by the purpose which they are intended to accomplish. As before seen, the purpose of this report of the sheriff is to give notice to the owner and any other person interested of just what has been done. The owner, upon going to the record and finding that only a part of his land has been sold for taxes, may prefer to let the purchase stand rather than redeem, or it may be that one having a lien on the land, upon going to the record and seeing that only one-fourth of it has been sold, and knowing that three-fourths of it is ample security for his debt, would fail to redeem, and then if the receipt issued by the sheriff to the purchaser, of which no one else has knowledge, is to control over this report the creditor, thus misled, would be deprived entirely of his security, as well as the right to redeem by the lapse of time. In the State of Iowa it seems that there is a statute somewhat similar to ours in regard to issuing a receipt to the purchaser at a tax sale, as well as a requirement of a report being made and recorded. Under this statute it is held that such report will control when it is in conflict with the receipt given by the selling officer. McCready v. Sexton and Son, 29 Iowa 356; Henderson v. Oliver, 32 Iowa 512; Clark v. Thompson, 37 Iowa 536. There are some holdings in Minnesota to the 'effect that the certificate issued by the selling officer to the purchaser will control over a report made by the selling officer, but th&t is for the reason that under the statute in that state this certificate is the purchaser’s muniment of title. It becomes his deed if the land is not redeemed within the time given the owner to do so, and it is recorded and treated in all respects as a deed conveying the title without the execution of any other paper, and the statute in express terms makes it prima facie evidence of what it contains, so that it cannot he said that these cases are pertinent authority upon the question involved here.

We are of opinion in this case that the report of sale made by tbe sheriff must control as to the interest sold by him, and that the purchaser was not entitled to a deed for any larger interest than that shown to have been purchased by the report of sales. Section 25 of chapter 31 of the Code provides that a deed conveying a less amount than that shown to have been purchased will not be void, but does not provide that a deed may convey a larger interest than is so shown to have been purchased.

But can it be said that the deed is absolutely void as contended for by the plaintiffs? It is insisted that under the decision in the case of Shrewsbury v. Horse Creek Coal Land Company, 78 W. Va. 182, this deed is absolutely void, and of no effect to pass any title whatsoever to the purchaser. We do not think that case is authority for the proposition contended for. In that case the sheriff undertook to sell an undivided interest in land which it has been repeatedly held was a void sale, and then after the sheriff had sold this undivided interest the purchaser undertook to divide the land between himself and the other joint owner and take a deed for the part laid off to himself. It was held in that case that the sale and the deed made under it were void. In this case the sale is not questioned. The only defect is the imperfect execution by the clerk of the power conferred on him to make a deed. Instead of making a deed for a one-fourth undivided interest in this town lot as he was authorized by law to make, his deed attempted to convey the whole thereof. This act was unauthorized so far as it went beyond the conveyance of the interest purported to have been sold, but can it be said that it is any more than an illegal and defective performance by the clerk of the duty imposed upon him which is cured by the provision of § 25 of ch. 31 of the Code? We are of opinion that this imperfect execution by the clerk of the county court of the power conferred upon him, so far as it affects the interest purported to have been sold, is cured, and that the deed is good- to pass the one-fourth undivided interest.

Our conclusion, therefore, is to reverse the decree of the circuit court of Wyoming County and enter a decree here can-celling the tax deed to the extent that it attempts to convey a larger interest than a one-fourth undivided of the lot referred to, as a cloud upon the title of the plaintiffs thereto.

Reversed and rendered.