Buchanan v. Reynolds

It appears that Andrew Donuálly, in his lifetime, and at his death, was possessed, among other real estate, of two undivided thirds of a large tract of land in Kanawha county, containing five or six thousand acres, which formerly belonged to William Steele & Co., and was known as the “ steam mill property.”

One undivided third of said tract was conveyed to said Donnally by William Steele on the 14th of December, 1822, and the other by Adam and Richard Steele on the 12th of January, 1824. The remaining third of said tract had also been conveyed to said Donnally by Robert Steele and wife, but he subsequently conveyed it to John Lewis, who conveyed it to Jacob English and George H. Warth. And the tract was afterwards partitioned, at their instance, and their third, amounting to 1,783J acres, assigned to them.

Andrew Donnally died, perhaps, in 1850, having made and acknowledged his last will and testament, which was admitted to probate at the March term, 1850, of the county *690court of Kanawha county; and the executors named in the will declining to qualify as such, administration with the will annexed was, at the same time, granted to Dryden Donnally and Andrew F. Donnally, who gave the required security and qualified accordingly.

By the 10th clause of the will the executors are authorized and required to sell certain real estate thereafter described, and including, among other tracts, the two-thirds of the steam mill property derived from the Steeles.

In 1857 the administrators, Dryden and Andrew F. Don-nally, as such, and in exact conformity with the power vested in them by the will, conveyed the undivided two-thirds of said steam mill property, to James Hunter, John P. Hale and Jacob Humbird; and in 1865 they in like manner conveyed the same property to Alfred Buchanan and Charles W. West. In 1859 Dryden Donnally, Andrew F. Donnally, William Donnally, and Van Burén Donnally, all sons of the testator, Andrew Donnally, conveyed to the defendant, Ellicott Reynolds, in trust for his wife, Elizabeth Reynolds, twenty-five acres, (being the land now in controversy) of said steam mill property, who afterwards took possession of the same, and continued to hold the same, at the commencement of this suit. This suit, therefore, was instituted for the recovery of said tw’entv-five acres, so claimed by Reynolds and wife.

The original count was filed at February rules, 1865, and is in the name of said Buchanan and West. At the June term, 1866, the plaintiffs, upon leave, and without objection, filed an additional count in the name of John P. Hale, James Hunter and Jacob Humbird; and at the same term the case was tried and resulted in a verdict and judgment for the defendants.

The only question that it will be necessary to consider is that arising on the plaintiffs’ motion for a new trial. All the facts proved in the case are certified and set out in the plaintiffs’ bill of exceptions.

The legal title to the two-thirds of the steam mill prop*691erty, including the twenty-five acres in dispute, having been vested in the said Hunter, Hale and Humbird, by the deed of the administrators of Andrew Honnally, made in strict conformity to the provisions of bis will, it follows that the defendants derived no title to the twenty-five acres by the deed from four of said Honnalley’s heirs; and it is, therefore, clear that .the plaintiffs’ were entitled to recovery of the land, unless they were rightly defeated by the outstanding title in Morrison, which the defendants sought to ■set up against them, and for which purpose they introduced the deed from the said administrators to the said Hale, Hunter and Humbird, together with the deed of John ¡Slack, as recorder of the county, to said Morrison for the same land, which it was claimed had been regularly returned delinquent and sold for the non-payment of the taxes charged against it for the years 1858 and 1859. The ■question, therefore, arises, is this deed sufficient, on its face, to vest any title to the laud in Morrison the purchaser? Hr, in other words, is it made 1o appear that the sale was made in conformity to the provisions of the law, authorizing sales to be made of laud for the non-payment of taxes? In Flanagan v. Grimmet and others, 10 Grat., 421, it was held that, under the act of 1814, which required only the “ circumstances of the sale,” to be recited iu the deed from the sheriff to the purchaser of lands sold for the non-payment of taxes, it must appear on the face of the deed that the sale was made at the time and place prescribed for the sale of lands returned as delinquent, though it was not necessary to recite therein all the'steps (such as the advertisement of the officer of the time and place of sale, &c.,) which preceded such sate. That case, however, arose under the act of 1814. The sale in this ease was made under the provisions of the thirty-seventh chapter of the Code of Virginia, 1860, page 217- The fourth section provides that the sales of delinquent lands shall be made at public auction, in front of ¡the court-house of the county in which they lie, on the first day of the September or October *692terms, of the county court of such county, “between the hours of ten in the morning and four in the evening” of such day. And by the 5th section such sales may be adjourned from day to day, to be proceeded in between the hours aforesaid,. until completed. The 17th section provides for the deed to be made by the clerk or deputy clerk to the' purchaser,, in which shall be “set forth all the circumstances'appearing in the clerk’s office in relation to the sale.” And it is provided by the 23d section that the grantee in such deed shall stand vested with all the estate that was vested in the party assessed with the taxes, (on account whereof the sale was made) &c., “notwithstanding the irregularity of the proceedings under which the grantee claims title, unless such irregularity appears on the face of the proceedings.”

Bringing the deed in question to these tests, it appears to me to be.incurably defective, and was not, therefore, sufficient to show an outstanding title in Morrison.

It does not appear with sufficient certainty, I think, by whom the sale was made, nor that the land had, in fact, been assessed with taxes, nor for what year or years, nor the amount of taxes with which it was charged, and for which it was sold.

I think, therefore, the court erred in overruling the plaintiffs’ motion for a new trial, upon the ground that the verdict of the jury was not sustained by the evidence; and also in giving the second instruction at the instance of the defendants. But, in my opinion, no error was committed iu refusing.a new trial upon the grounds alleged in the affidavits of the jurors.

I think the judgment should be reversed, with costs to the appellants, the verdict set aside "and a new trial awarded on the usual conditions.

Judgment reversed.