CHARLESTON.

#### Frank Roe *v.*K. D. Geiger *et al.*

Submitted April 25, 1922.

Decided May 16, 1922.

1. *Taxation*— Purchaser *Has a Right to One Tax Deed or to Separate Deeds for Tracts Separately Sold.*

Where two tracts of land are separately assessed with taxes, are returned delinquent and for non-payment of taxes are separately sold to the same person, the purchaser has the right to a separate deed for each tract or at his election, to one deed for both tracts. (p. 206).

2. *Same*— Tax *Deed for Two Separately Assessed Tracts Must Describe Each Tract Separately.*

If such deed be made for both tracts, it must, under section 24, chapter 31 of the Code, contain a description of each tract; and a deed describing by metes and bounds a single tract, purporting to be the aggregate of the two tracts and not describing the two tracts separately is not in conformity to the statute and is void on its face. (p. 209).

Error to Circuit Court, Lincoln County.

Action by ejectment by Prank Roe against K. D. Geiger and others. Verdict for plaintiff was set aside, and new trial awarded, and plaintiff brings arror.

*Affirmed.*

*Pendleton L. Williams,*and *Jacob D. Smith,*for plaintiff in error.

*A. F. Morris,*and *Marcum & Shepherd,*for defendants in error.

MeRBDith, Judge:

Plaintiff brought this action of ejectment in the circuit court of Lincoln County to recover two tracts of land containing 17% acres and 14% acres, respectively, but described in his declaration as one tract of 32 acres. The action was originally brought against D. K. Geiger, but on motion, Kenova Coal Mining Company was admitted as defendant and thereafter it appears as the real claimant and defendant *204in the ease, Geiger being merely its agent. The trial resulted in a verdict for the plaintiff; on motion of the Company the court set aside the verdict and awarded it a,new trial. Plaintiff prosecutes this writ of error and asks that the action of the circuit court be reversed and that judgment be entered here on the verdict.

In 1910, J. X. Hill was assessed with the fee in two tracts in Sheridan District, containing 17% acres and 14% acres respectively. These tracts had been assessed in his name for the years 1903 to 1910 inclusive-. They were both returned delinquent for the non-payment of the taxes assessed for the year 1910, and on December 9, 1912, were sold by the sheriff to the plaintiff. They were not redeemed, and plaintiff endeavored to have the county surveyor make a survey thereof, but he being absent, L. D. Clifford, a civil engineer, was employed for that purpose. Clifford did not survey each tract separately, but as the tracts adjoined each other, he surveyed them together as one tract. His survey was later presented to M. D. Hilbert, the county surveyor, who made a report, adopting therein Clifford’s survey, and filed his report with the county clerk, December 5, 1914. The clerk executed a deed to the plaintiff, dated December 5th and acknowledged December 7th, 1914, for the 32 acres, describing it by metes and bounds as one tract, the same as in the surveyor’s report, and as “being all of the 17% and 14% acre tracts owned by J. X. Hill.” The deed was recorded December 7, 1914..

Plaintiff claims title under this tax deed. Defendant Kenova Coal Mining Company claims that J. X. Hill in 1910 did not own these lands and that they were improperly assessed in his mame; that these same lands were properly assessed for that year in its name as part of a 92% acre tract and that it paid the taxes thereon, so that at that tax sale plaintiff acquired no title by his purchase.

On the trial plaintiff showed that the two tracts of 17% and 14% acres were assessed for the year 1910 in the name of J. X. Hill; that they were for that year returned delinquent and sold; introduced his tax deed and we think sufficiently identified the land conveyed by the deed and as lo*205cated upon the ground, by tbe testimony of M. D. Hilbert, county surveyor, that is, he identified the metes and bounds of the 32 aere tract; but the lines of the two tracts, 17% acres and 14% acres, were not run out separately, nor were the two tracts nor their locations identified. Hill’s title to the lands, if he had any, was not shown. No attempt was made by plaintiff to deraign the title of Hill in order to identify the two tracts sold as being the .32 acres run out by metes and bounds. Plaintiff’s offer in evidence of the surveyor’s report was rejected, but it was later put in evidence by the defendant. We see no reason why plaintiff should not have been permitted to introduce it as part of his evidence. At the conclusion of plaintiff’s evidence, defendant moved the court to exclude it and direct a verdict for defendant, which motion the court overruled; if this motion should have prevailed, that would have ended the ease. If that question should be determined in favor of the defendant, a consideration of the errors assigned by plaintiff will be unnecessary.

Defendant contends that plaintiff’s deed is void on its face; if so, plaintiff has shown no title of any kind or character to the lands in controversy. The deed by way of recital shows that it was made in pursuance of the statute; that the sheriff commenced the sale of real estate charged with taxes in his county and returned delinquent therein for the nonpayment of the taxes thereon; that at the sale completed according to law, Frank Roe “became the purchaser of two tracts of land charged on the land book as 17% and 14% acre .tracts, charged with taxes in the said county of Lincoln in Sheridan District, as a 17% and 14% acre tracts, in the name of J. X. Hill, for the year 1910, for the sum of $5.62,” that being the aggregate of the taxes, interest and costs; that the lands were not redeemed as provided for by law, and after the expiration of one year from the date of the sale, *'said*Frank Roe caused a report by the county surveyor to be made to the clerk of the county court, specifying by metes and bounds the real estate so purchased, and giving a description of the same sufficient to identify it as required by law.

*206• Then follows a grant of the real estate by metes and bounds, closing with the words: "containing 32 acres by survey, being all of the I714 and the 14% acre tracts owned by J. X. Hill.” The deed is properly signed, sealed, acknowledged and stamped. It substantially follows the surveyor’s report to which the sheriff’s receipt for the taxes and the surveyor’s report were attached. The receipt or memorandum attached shows that the two tracts were separately assessed, the total amount paid for the 17% acres being $2.94, and for the 14% acres $2.68. The two tracts were assessed separately and were separately sold. Section 24, chapter 31, Code, provides:

> "Where two or more tracts or parts of tracts, or city, town or village lots, charged to the same person, or persons, with taxes, for the same year, or years, shall have been sold for taxes and purchased by the same person at such sale, the purchaser thereof, or his heirs, devisees or assigns may obtain from the clerk of the county court several deeds for each tract or part of a tract, and city, town or village lot, or undivided interest therein, or for any number of them less than the whole, or he may obtain one deed for the whole ■of them as he may prefer; *but every such deed shall describe each tract and part of a tract, and each lot and ion-divided interest in a lot separately;*and such deed when so made for several tracts and parts of tracts, and several lots and undivided interests in several lots, shall be as valid and effectual to pass to the grantee therein the title, legal and equitable to every such tract, and part of a tract, and to every such lot and undivided interest in a lot, as a separate deed to each would have been if such separate deed had been made to such grantee. ’ ’

That statute means just what it says, and it says: ‘ ‘ Every such deed shall describe each tract and part of tract, and each lot and undivided interest in a lot separately.” The plaintiff in this ease was entitled to two deeds, one conveying one tract, and the other the other tract; or, at his election, he was entitled to a deed conveying both tracts, but in the deed conveying both tracts each tract should have *207been described separately. Tbe statute does not permit a ■description of two or more tracts as one tract in sueb a deed, where the tracts are separately assessed and separately sold.

It is said in Minor’s Law of Tax Titles in Virginia, page 120,‘in speaking of tax deeds;

> “The deed must describe the land with sufficient certainty "to establish its identity. In general the description must ■conform in all essential particulars to that employed in the .assessment list, the notice of sale, and the officer’s report ■thereof. Otherwise the deed is invalid. Thus, if the officer’s report shows that an entire tract was sold, this is no authority for executing a deed for *part*of a tract, and if such deed is executed, it is void. The only authority for making a tax-deed at all is the fact that the land has been sold for taxes, and nothing can be conveyed therefore except that which is sold.”

In the case of *Boon*v. *Simmons,*88 Va. 259, 13 S. E. 439, a tax deed was set aside, in which the treasurer’s report designated the land as “Two acres forty poles near Salem, ” assessed in the name óf J. W., T. D., and E. A. Shell. This was included in the list of sales returned to the county court. At a subsequent term of the county court a deed was ordered to be made to the purchaser. “In pursuance of the foregoing order, the clerk of the said county court, by a deed dated September 13, 1890, conveyed to the said Walter *Z.*Boon, not the land designated on the list returned by the treasurer aforesaid to the county court at the January term, 1888, as ‘Two acres forty pole's near Salem,’ but ‘the following described real estate situated in the town of Salem, Roanoke County, Va., near the depot of the Norfolk and Western Railroad,’ within certain metes and bounds, and ‘consisting of lots 119, 120, 121, 122, 123, -54, 55, 56, 57 and 58 on the survey of John Snyder of lots of the Dupmore estate’.” One of the reasons for holding the deed void was that it did not properly and sufficiently describe and identify the land. See *Brickey*v. *English,*129 Ill. 646; *Lowe*v. *Ekey,*82 Mo. 286; *Keane*v. *Cannovan,*(Cal.) 82 A. D. 738; *Libby*v. *Mayberry,*80 Me. 137; *Alex*
      *208
      *ander*v. *Hickox,*34 Mo. 496, 86 A. D. 118; Black, Tax Titles (2d. Bd.) Secs. 405 *et seq.*

Cooley on Taxation, Vol. II, page 1000, in speaking of the description of the land as contained in tax deeds, says: “Here again description becomes important; the description-should, in substance at least, follow that in the assessment when the whole parcel assessed was sold, and if less than the whole, then the connection between what was assessed, and what was sold should appear. In either case the description should be one that with reasonable certainty identifies the land.”

There is no word in plaintiff’s testimony showing where the 17% acre tract lies. Its boundaries were in no way identified; we could not tell from the evidence in what part of the -32 acre boundary it lies, nor could we tell, in fact, whether it is within the 32 acre boundary. The same is true as to the 14% acre tract. The description in the deed and in the surveyor’s report is not a description of either of the tracts as required by the statute.

Is this defect a fatal one, or is it cured by section 25 or section 29, chapter 31, Code? Section 25 says:

> “When the. purchaser of any real estate so sold and not redeemed * * * * shall have obtained a deed therefor according to the provisions of this chapter and caused the same to be admitted to record, such right, title and interest in and to said real estate shall be transferred to and vested in; the grantee in such deed.”

The deed must on its face, in order to transfer and vest title be one obtained according to the provisions of that, chapter, that is, in the present instance, one according to-section 24, part of which has been quoted above. This court held in the case of *Caretta Railroad Co.*v. *Fisher,*74 W. Va. 115, 81 S. E. 710, that a tax deed “purporting on its face-to convey an undivided interest in land other than a town lot is unauthorized by law, . inoperative and not conclusive as to any one.” Such a deed bein'g void on its face is not cured by section 25 or section 29 of the statute. Judge-Robinson, in his opinion in that case, pertinently calls at*209tention to tbe fact that the words “such deed” in'section 29 refer only to such deeds as are authorized by the provisions of that chapter. See also *Wagner*v. *Beavers,*85 W. Va. 631, 102 S. E. 668; and *Shrewsbury*v. *Horse Creek Coal Land Company,*78 W. Va. 182, 88 S. E. 1052.

We hold that the provision in section 24, chapter 31, Code, which provides that “Every such deed shall describe each tract and part of a tract and each lot and undivided interest in a lot separately, ’ ’ when such tracts are separately assessed ■ and separately sold, must be substantially complied with, and that unless a tax deed conveying two tracts separately assessed and separately sold describes them separately, such deed is void on its face, and is not a deed obtained according to the provisions of chapter- 31 of the Code.. Having come to this conclusion, it is unnecessary to consider plaintiff’s assignments of error. It therefore follows that defendant’s motion to exclude the plaintiff’s evidence and to direct a verdict for defendant should have been sustained. The order of the circuit court setting aside the verdict and awarding defendant a new trial is affirmed.

*Affirmed.*