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57 W. Va. 492

Cain v. Fisher

West Virginia Supreme Court

Decided March 28, 1905

West Virginia Supreme Court · decided 1905-03-28

<p>1. Tax Sam — Hale, by Sheriff — Incorrect Description of Property Sold.</p> <p>A purchaser at a tax-sale of iDroperty, charged on the laud book and sold by the sheriff for non-payment of taxes, as part of a certain town lot, in the name of a person who, in fact, owned the entire lot, acquires, by virtue of the provision of section 25 of chapter 31 of the Code, relating to mis-statement of the quantity of land so charged and sold, the right, title, interest and estate of the person so charged with the taxes thereon in and to the entire lot, by obtaining a deed therefor under such purchase, (p. 49G.)</p> <p>2. WARRANTY or Titm — Breach of Warranty by Tax. Sale.</p> <p>Where land has been conveyed by deed with a covenant of special warranty, a subsequent sale thereof for non-payment of taxes, charged thereon against the grantor prior to the conveyance, and while he owned the land, constitutes a breach of the covenant of warranty, (p. 495.)</p> <p>3. Warranty OB' Titm — Breach of Rights of Vendee..</p> <p>Failure of the grantee, in such case, to prevent the sale by payment of the taxes or redemption of the land from delinquency and sale, neither bars his action on the covenant nor mitigates the damages, (p. 498.)</p> <p>4. Warranty ob' TiThw — Incumbraires — When Covenants of Title Broken.</p> <p>Though a covenant of warranty is not a covenant against incum-brances, an incumbrance which eventuates in an eviction of the covenantee works a breach of such covenant, (p. 494.)</p>

Relies on Jones v. Dils · Mosser v. Moore

Good law ✅— No negative treatment on recordhow we know

Affirmed · Decided 1905-03-28

How this case has been cited

Cited by 7 later decisions — most recently December 1988

7 state decisions

30190519101920193019401950196019701980decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Beannon, PRESIDENT,

¶1{dissenting):

¶2I dissent because I regard the tax deed as void. A tax deed must rest on a valid assessment, delinquent and sale list. Mosser v. Moore, 49 S. E. 537, 56 W. Va. 478. All three in this instances were vague. ‘ ‘A description of property in an assessment roll which is so vague, indefinite and uncertain as to render it impossible to determine whether the whole or a part, or if a part, what part, of the'land ivas intended to be assessed to-the person named, is insufficient. And a description which states that the property is part of a larger tract, but does not clearly identify the specific and determinate part intended, is so inadequate as to fender the assessment a nullity. For not only would such a description be inadequate to inform the owner of the taxing of his land, but a deed convejdng a ‘part’ of a lot or tract would convey no legal title to any portion. The same objection applies to an assessment which merely describes the land as a certain number of acres in a specified tract, without locating or identifying the portion meant to be assessed. ” Black, Tax Titles, section 115. See 1 Blackwell, Tax Titles, sections 223, 229, 242. The statute referred to by Judge Poeeenbarger does not cure this fault, which bjr common law makes the deed void. The charge on the tax books, “Pt. Lot 138 B. 20,” is vague. It is not misstatement of quantity; it is no statement at all of quantity. What is the quantitv stated? None. It indicates perhaps part of the lot by the letters ‘ ‘Pt. ’ ’ What part ? Ten feet, or forty feet. One-fourth, or one half? The entry does not tell. It is faulty, vague, uncertain description. Can you sell part of a man’s tract or lot and make a deed for the whole? If mere misstatement of quantity, the statute would cure; but the entry does not purport to state quantity. Jones v. Dills, 18 W. Va. 759, is in point. It holds that if an entire tract is sold, there is no authority to make a deed for part. On like principle where a sale is of part a deed cannot be made for the whole.

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