Smith v. Lewis

.Brown, Tresident.

Edward W. Lewis, being the owner of two lots of land in the town of Parkersburg, gave a deed of trust upon them in 1856, to secure a debt of 1,500 dollars, which he owed to .the appellee, Mary Lewis; which trust deed was duly recorded. These two lots were charged with .taxes for the year 1859 in the name of said Edward W. Lewis and returned delinquent for the non-payment thereof, and certified by the auditor to the sheriff of Wood county for sale, in 1860, and by him sold in September of that year, as entire lots, to the appellant Robert S. Smith.

In March, 1863, the said Smith procured from the clerk of the county court of "Wood county a deed for each of the said lots so purchased by him, which were duly recorded within the time required by law.

Mary Lewis afterwards filed her bill in the circuit court of Wood, to subject the said lots to the payment of her trust debt, and made Edward W. Lewis, and the said Robert S. Smith, and Stephen C. Shaw, who was the trustee in the said trust deed, parties defendant. The circuit court decreed the land to be sold and the debt of Mary Lewis to bo first paid out of the proceeds, and the residue of about 100 dollars, after paying the costs, to be paid to the appellant, Robert S. Smith, the purchaser at the tax sale. The commissioner appointed by the court to make the sale in the place of the trustee, who declined to act, advertized and sold the lots, without first having the same appraised as provided by the act of December 9th, 1863; but soon after discovering his omission in that particular, had the same done, *51 and filed the report of the appraisers along with Ms report of sale, for the consideration of tlie court. The defendant, Smith, objected to the confirmation of the sale on account of the alleged irregularity in not having the appraisement before the sale, and claimed that its being subsequent vitiated the sale; but the objection was overruled.

The appellant assigned for error the following, viz: 1st, That the court erred in sustaining the incumbrance of Mary Lewis on the lands in the hands of the purchaser at the tax sale. 2nd, That there could be no sale till after the appraisement.

Mow, by; the 23rd sec., chap. 37, of the Code 1860, it is provided that when the purchaser of any real estate so sold, gets his deed, in conformity with the statute, “such estate shall stand vested in the grantee in .such deed, as was vested in the party assessed with taxes (on account whereof the sale was made) at the commencement of the year for which the taxes were assessed, and on account whereof the sale was made.” Edward W. Lewis in whose name the lands were charged, had only an equity of redemption therein after paying the trust debt secured on the lots to Mary Lewis. And as Smith, as purchaser at the tax sale can claim no more than the estate conferred by his tax deed, he is limited to the equity of redemption, that being all the estate vested in Lewis, in whose name it was charged with taxes and delin-quement.

There is no error in the decree, therefore, on the first ground, viz, for sustaining the incumbrance. The second error assigned is that there could be no sale till after the appraisement, and that the appraisement made after the sale, but before confirmation, could not eure the defect.

By the statute of December 9th, 1863, it is provided that before any sale, &<x, shall be made, fee., the property must be appraised. This act clearly contemplates a prior and not a subsequent appraisement, and as a preliminary step to the sale. That was not done, and the subsequent appraisement is not a compliance with the plain and positive requirements of the act

*52 And if the aet be valid the sale should have been set aside. But it is claimed that the act impairs the obligation of the contract of the appellee in obstructing the sale of the trust subject, and is therefore unconstitutional and void.

And such seems to bo the result of the principle decided 'by the supreme court of the U. S. in the cases of Bronson vs. Kinzic, 1 How., 311 , and McCracken vs. Hayward, 2 Howard, 608 , wherein that count held an appraisement law" of Illinois, similar to our own, void as to antecedent debts and contracts, and directed a sale of the mortgage subject in one case, and the land levied on, in the other, to he sold without appraisement in disregard of the provisions and requirements o-f the Illinois statute.

But the present case is different from that, in this: that* in that case, the Illinois statute prevented a sale, because the property did not bring two-tliirds of tlie appraisement value; but here the property sold for more than three-fourths of the appraisement value, and consequently the West Virginia statute did not prevent nor prohibit the sale in question* nor obstruct the complainant in the court below from collecting her debt. It can not, therefore, be said to impair the obligation of the particular contract in question, and can not, therefore, be said to be repugnant to the constitution so far fts this case is concerned, whatever may he its character and effect on other contracts and cases not before this court, oí which may arise.

Because the act requires an appraisement before the sale, it- is not necessarily void for that matter, because an appraisement is a regulation, not a defeasance of the sale — can work no injury to the creditor, or other party to the contract, whether they be parties in interest or privity, and because nn appraisement, however cumbersome it may prove in judicial proceedings generally, yet might be a useful means of providing the court with additional evidence of the propriety oí’ impropriety of confirming a sale made under its orders. Bor whether the property sold for an adequate or inadequate price is always a question for the consideration of the eotirt upon the question of confirming or setting aside *53 the sale made by its officers. I do not think, therefore, that the appraisement required by the act, if it liad been complied with, would or could have obstructed the complainant in the court below, in making the sale, or collecting her debt; and the act in question eanuot therefore, on that ground be held to impair the obligation of the contract in question, and is not, therefore, repugnant to the constitution or void, s© far, at least, as the ease at bar is concerned.

The only remaining question is that raised by the appel-lee’s counsel, assailing the validity of the tax deeds. One deed is for part of out lot Ho. 14, in the town of Parkers-burg, charged to Edward W. Lewis resident in Missouri, and is the same lot described in the deed from Tavenor to said Lewis, dated March 17th, 1853. It is the same lot certified by the auditor to the sheriff, for sale as delinquent, and the same lot sold by the sheriff, and is described in the deed of the clerk'to Smith substantially as described in the said deed from Tavenor to Edward W. Lewis. It is objected t© this, that while the deed is sufficiently certain, yet that the enlistment of the lot on the commissioner’s book for taxation, does net sufficiently describe the lot and that therefore the deed resting upon it must be bad for the same reason.

But if this fullness of desei’iption were requisite in the tax list, why should the statute in sections 15 and 16, chap. 37, Code 1860, provide for surveys and reports to describe and certify that which was already fully described and. certified ?

Again, it must be borne in mind that the land books of the counties, and throughout the State, are prepared in ruled forms, by the auditor as required by law and transmitted to the several commissioners; that they contemplate only very brief notes of description, and very small space in the land books is assigned for that object, to meet the requirements ©f the statute, the substance of which are brief statements in separate columns of the names of the owners, their residence and estate, quantity and description of the land, by contiguous tracts, water courses, mountains or other places - *54 on or near which it lies, distance and bearing from the court-house, and from whom and when the title derived, where known, and in ease of a town lot, the Ho. of each lot. How, the listing of the lots in question, when tested by the requirements of the statute, and the universal practice of the commissioners in making out the land books of the counties, will be seen to be a substantial compliance with the statute in all the essential points, and altogether unexceptionable on the ground objected.

It is next claimed by the appellee’s counsel that the second deed, viz, for lot Ho. 6, is bad for misdescription and uncertainty. This lot, Ho. 6, in that part of the town of Parkers-burg known as Harris’ Addition, is so described in the commissioner’s book, and auditor’s lists of lands and lots certified to the sheriff for sale; and was sold by him and described in the same manner, and the taxes and damages thereon delinquent correspond throughout, in the tax list, the auditor’s list, and the sheriff’s report of sale and the tax deed from the clerk to the purchaser, Robert S.- Smith. But in reciting the listing, delinquency and sale as aforesaid, and describing the lots as conveyed, it is called “part of out lot Ho. 6, Harris’ Addition to the town of Parkersburg,” instead of “ lot Ho. 6.” But the reference made in the deed to the commissioner’s book, the auditor’s list and the sale by the sheriff and his receipt to the purchaser and the amount of taxes and damages charged thereon, all show that the lot intended was not part of out lot Ho. 6, there being none such, but the whole of lot Ho. 6; and the mistake being patent on the face of the deed and the record therein recited and referred to, and the deed itself being headed as “deed from clerk to R. S. Smith, for lot Ho. 6, in Hands’ Addition.”

There can be no doubt of the true intent and meaning of the deed. The inspection shows, even, how the draftsman fell into the mistake, in using the words “part of out lot Ho. 6,” instead of the words “lot Ho. 6,” to describe the lot bought by Smith and thereby intended to be conveyed. And the reference to the tax list, the auditor’s list and sher *55 iff’s report and receipt for sale of lot No. 6, and the amount of taxes and damages due thereon and the price paid by R. S. Smith, all show beyond all doubt, that the lot so conveyed and intended to be conveyed was not a part, but the whole of lot No. 6; and the objection therefore to its validity for that cause is without foundation. The statute makes the deed prima facie valid to pass the title, notwithstanding any irregularity in the proceedings under which the grantee claims title, unless such irregularity appear on the face of the proceedings. The proceedings are all regular, viz, the whole of lot No. 6 and not a part was charged on the commissioner’s book. The whole was certified by the auditor as delinquent for sale. The whole was sold and reported by' the sheriff, and bought by Smith and receipt given him by the officer for the same, as required by the statute; and the recitals and contents of the deed show on the face thereof, that the whole and not a part was intended to be conveyed and'was actually conveyed, notwithstanding the mistake of the clerk in calling it “part of out lot No. 6,” instead of “lot No. 6,” and therefore no such irregularity appears on the face of the proceedings as would invalidate the deed.

It is said that the appellant, Smith, had not complied with the requirements of the 3rd section of the act of December 9th, 1863, providing for appraisement of property, and eonld not, therefore, require the appraisement of the lots in question before the sale.

But the record shows that the appellant, Smith, on the 12th day of February, 1864, before ,1. K. Leonard, recorder of Wood county, took the oath required by law, as a justice of the township of Parkersburg in said county, among whieh oaths so taken is included the oath required by sec. 3 of the said act of December 9th, 1863. By the act of January 26th, 1863, sec. 6, the oaths of a justice are required to he filed with the recorder of the county, and the record of the ease contains a certified copy of said oaths from the recorder’s office of Wood county, attested by the recorder. This, in my opinion, shows that the appellant, Smith, did take and file in the office of the recorder the oath required *56 by the said act. When he took ancT subscribed the oaths required, before the recorder in his office and left it there, he had done all he could and all the law contemplated to be done by him, in taking- and filing the same in the proper office. The duty of the officer was to file away and preserve it among the records and papers of his office and if any endorsement of filing was to be made thereon, that was for the officer and not for the affiant. It would not do for parties to make entries or endorsements on office papers after they were once left in the office where the law required them to be filed. But it is a mistake to suppose that to take and file an oath in writing in the recorders office, means any endorsement on the affidavit by the party or officer, but the leaving it with the officer, whom the law makes the custodian thereof, and the preserving it in order by the officer, to be ready for inspection by all having a right to see the same, is in law, what is meant by filing- the same in theproper office. I think, therefore, that the appellant, Smith, was in a condition to insist on the provisions of the appraisement law. I think the decree of the court below has done substantial justice between the parties, and regret that the conclusion to which I have come, upon the law of tho case makes it necessary to disturb it; hut since in the view I have thus taken of the statute in its application to this case, I can see no sufficient ground to warrant the court in declaring it void, as respects the case under consideration. And since the act requires an appraisement before tbe sale, which was not done, and cannot be satisfied by an appraisement after the sale, I should be constrained to conclude that the decree should he reversed, the sale set aside, and the cause remanded to the circuit court of Wood county to be there further proceeded with in conformity to the views here expressed, but for the following- considerations; a re-sale after appraisement might and probably would produce a less price than in the former sale; it would be attended with additional costs, which would also be a tax on the proceeds of the sale; unnecessary delay would be incurred, and the appellant the party really prejudiced by it: while the present proceedings *57 and decree have attained substantial justice and all that could be attained by a resale. It would be rather technical than material to reverse the ease under such circumstances. On the whole, therefore, I think the decree of the circuit court should be affirmed.

Maxwell, J.

Such title only is vested in the purchaser at a tax sale as “was vested in the party assessed with taxes at the commencement of the year for which the said taxes were assessed.” The legal title to the property conveyed in trust by E. ~W. Lewis, passed to Shaw, the trustee, by the deed of trust, the equity of redemption only remaining in the said grantor.

The purchaser for delinquent taxes in this case, if the sale were in all respects regular, would only acquire a mere equity of redemption, subject to the payment of the debt due the appellee.

The sale and conveyance of the lot described as part of “ out lot No. 14,” seem to be regular, and I think all the title of the said E. W. Lewis passed to the purchaser at the tax sale. But I am of opinion that the deed made by the clerk to the purchaser of the lot described in the deed as “ part of out lot No. 6,” is void for uncertainty and that nothing passed by it, not even the equity of redemption of the said grantor in the deed of trust. It is impossible, it seems to mo, to identify from any description contained in this deed, what is intended to bo conveyed by ik nor is reference made by it to any description of the property intended to be conveyed by which it can be identified. It is not, however, material to the ease whether the equity of redemption in this lot remains in Lewis, the grantor in the deed of trust, or passes to the purchaser at the tax sale, because in either case it is liable for the payment of the debt of the appellee. The only difference is that it should have been sold for the debt before lot No. 14 was sold, but as it did not sell for sufficient to pay the debt, and it would have been necessary at any rate to sell “part of out lot No. 14” to pay the residue of the debt, it can not be to the prejudice of the appellant *58 that both lots were sold at the same time, and the surplus-money arising from the sale thereof, after paying the debt, interest and costs, paid to the said appellant.

I do not think the question that the property was not appraised before it was sold, “fairly arises upon the record of the ease.”

The third section of the “act providing for the appraisement of certain property,” Acts 1863, p. 244, provides that “no defendant shall be entitled to the benefits of the provisions of this act, who shall not before the day of such sale take and file in the office of the recorder of his county the oath,” &c. It does not appear from the record in this ease, that the defendant below took and filed the required oath in the recorder’s office of his county before the sale was made. It does appear that he took the required oath before the sale but it does not appear that he filed it according to the act, before the sale. Until this section is strictly complied with, klo defendant has any right to demand the appraisement of his property before it is sold.

I am of opinion that the decree appealed from should be affirmed.

Decree affirmed.