US SUPREME COURT DECISIONS

C., in his lifetime, was in possession, claiming ownership under divers patents of the Commonwealth of Virginia, of several contiguous tracts of land in West Virginia described in the several surveys thereof. In September, 1875, they were sold for nonpayment of taxes assessed upon them for the year 1874, and, under the operation of the tax laws of that state, the title was suspended for one year, the state being the purchaser, in order to enable the owner to pay the taxes within that year, and thus free the land from the charge. C. died three months before the expiration of the year. After his death and after the expiration of the year, his heirs commenced proceedings under the state statutes, praying for leave to pay all back taxes and to acquire the title to the lands which bad then become vested in the state. Decrees were entered giving their permission to redeem, and releasing the lands from the forfeiture and from all former taxes and damages. Under these decrees, they made the payments. They then found that an adverse title to the lands was set up by purchasers at tax sales made in 1869 for the nonpayment of taxes assessed in 1868, to persons claiming under other alleged surveys, and under other grants from the Commonwealth, and under other tax sales made prior to the separation, which are set forth in detail in the opinion of the court. The heirs of C. thereupon filed their bill in equity against the persons setting up such adverse title, praying for a decree annulling the deeds under which the defendants claimed title, and the removal thereby of the cloud created by them on the plaintiff's title.

Held:

(1) That the claims of the heirs of C. were sustained, unless overthrown by the evidence adduced by the defendants.

(2) That the examination and review of that evidence by the court showed that the tax sale of 1869 had no validity, and that there was nothing in the case to affect the validity of the claim of the heirs of C.

By the law of Virginia in force prior to the creation of the State of West Virginia, it was the duty of the sheriff or collector, when lands were sold for taxes, to purchase them on behalf of the Commonwealth for the amount of the taxes, unless some person bid that amount, and any lands so purchased and certified to the first auditor vested in the commonwealth without any deed for that purpose, and could have been redeemed in the mode prescribed by the statute.

Whatever title Virginia had to lands so purchased and not redeemed and chanrobles.com-red

Page 158 U. S. 376

which were within the territory now constituting West Virginia passed to the latter state upon its admission to the Union.

The time given by the Constitution and laws of West Virginia to redeem lands that had become the property of Virginia by forfeiture or by purchase at sheriffs sale for delinquent taxes, and which had not been released or exonerated in conformity to law, expired June 20, 1868.

By section 3 of Article XIII of the Constitution of West Virginia, the title to lands of the character described which were not redeemed, released, or otherwise disposed of, and which was vested in and remained in the state, was transferred to and vested -- (1) in any person (other than those for whose default the same may have been forfeited or returned delinquent, their heirs or devisees) for so much thereof as such person shall have had actual continuous possession of under color or claim of title for ten years, and who, or those under whom he claims, shall have paid the state taxes thereon for any five years during such possession; or (2) if there were no such person, then to any person (other than those for whose default the same may have been forfeited or returned delinquent, their heirs or devisees) for so much of said land as such person shall have title to, regularly derived, mediately or immediately, from or under a grant from the Commonwealth of Virginia, which, but for the title forfeited, would be valid, and who, or those under whom he claims, has or shall have paid all state taxes charged or chargeable thereon for five successive years after the year 1860, or from the date of the grant, if it was issued after that year; or (3) if there were no such person as aforesaid, then to any person (other than those for whose default the same may have been forfeited or returned delinquent, their heirs or devisees) for so much of said land as such person shall have had claim to and actual continuous possession of, under color of title, for any five successive years after the year 1860, and have paid all state taxes charged or chargeable thereon for said period, and the defendants' case belongs to neither class.

The proceedings instituted by the Commissioner of the School Fund, under the Act of November 18, 1873, for the sale of escheated, forfeited, and unappropriated lands were, in a judicial sense, ex parte, neither in rem nor in personam.

The words in the 13th section of that act --

"at any time before the sale of any such land . . . such former owner or any creditor of such former owner of such land, having a lien thereon, may pay . . . all costs, taxes, and interest due . . . and have an order made in the order book . . . which order, so made, shall operate as a release on all former taxes on said land, and no sale thereof shall be made,"

embrace those (in this case the heirs of C.) who in law would have owned the lands if they had not been sold for taxes or, if sold, had been redeemed within the prescribed time after the sale at which the state purchased.

In West Virginia, it is the settled rule that a court of equity has jurisdiction to set aside an illegal or void tax deed.

According to settled rules, equity will not interfere to remove an alleged chanrobles.com-red

Page 158 U. S. 377

cloud upon title to land if the instrument or proceeding constituting such alleged cloud is absolutely void upon its face, so that no extrinsic evidence is necessary to show its invalidity; nor will it interfere if the instrument or proceeding is not thus void on its face, but the party claiming, in order to enforce it, must necessarily offer evidence which will inevitably show its invalidity and destroy its efficacy.

But equity will interfere where deeds, certificates, and other instruments, given on sales for taxes, are made by statute prima facie evidence of the regularity of proceedings connected with the assessments and sales.

The case is stated in the opinion.