CHARLESTON.

#### J. O. McQueen *et al*v. Edith S. Ahbe *et al.*

(No. 5329)

Submitted September 15, 1925.

Decided September 22, 1925.

Adverse *Possession*— Extent *of Claim Defined by Void Tax Deed as Color of Title Cannot’be Enlarged by Intention of Clerk Executing Deed.*

The extent of the claim defined by a void tax deed as color of title cannot be enlarged by the *intention*of the clerk who executed the deed.

Error to Circuit Court, Nicholas County.

Ejectment by J. 0. McQueen and others against Edith S. Ahbe and others. Judgment for plaintiffs, and defendants bring error.

*Judgment reversed; 'verdict set aside; new trial awarded.*

*W. 8. Wysong*and *A. N.*Breckinridge,. for plaintiffs in error.

*G. G. Duff*and. *lloran & Horan,_*for defendants in error.

Hatcher, Judge:

This is am action in ejectment brought here on error from a judgment in favor of the plaintiffs, rendered by the Circuit Court of Nicholas County.

A tract of 378 acres owned by Levi J. Hooker was sold by the sheriff of .Nicholas County in 1875 for delinquent taxes, and purchased by J. M. Hutchinson. Hutchinson assigned the benefit of his purchase to Henry McQueen, to whom a deed was made in 1878, by the clerk of the County Court of said county. The deed describes this tract as situate on Brushy Fork and Powell’s Mountain and bounded as follows:

> “Beginning at a red oak on the top of the divide between the lower and upper Spruce and *runs*corner to a tract of land of 157 acres deeded by said Levi J. Hooker to L. M. Atwood and on a line of ai survey deeded by J. B. Burroughs to H. McQueen and with the same 8 80 W 90 poles to a stake corner to H. C. Erich and leaving McQueen *651and -with Erich’s line reversed N 27 E 410 poles to a beech and chestnut near the road that leads from McQueens store to L. Y. Ashlej^’s on the east side of the same and near the top of the ridge on a line of a survey of 500 acres deeded by S. J. Hooker to Burdette and Dorsey and leaving Erich and with the latter S 80 E 200 poles'to a birch and spruce pine near a branch and leaving Burdette and Dorsey S 50 W 127 poles to a chestnut oak on a south hill side S 65 W 150 poles to a small double dogwood on the side of the turnpike road and with the same S 30 W 10 poles N 80 Y 14 poles S 25 W 20 poles S 43 "W 24 poles to a forked locust S 23 E 6 poles *B'80*E 10 poles S 52 E 4 poles to some sourwood sprouts by some rocks that is in the road at the first bend that overlooks Mumblethepeg Creek N 72 E 32'poles to a small fed oak' on the east side of the road and leaving' it a south east course to a stake, corner to a survey of 100 acres formerly owned by H. *W.*Powell and with S 10 *W*74 poles to a chestnut oak called for corner to the same thence leaving a north west course to a small chestnut on the west side of the turnpike road near the coal bank corner to the first named survey and with the same reversed N 60 *W*228 poles crossing the upper spruce *run*to a large chestnut on the side of the divide S 13 E 32 poles to a small chestnut oak on the divide S 16 W 100 poles to the beginning containing 400 acres be the same more or less.”

It will be noted that the beech and chestnut corner near the road that leads from McQueen's store to L. Y. Ahley’s etc. is described as being on a line of the survey of the 500 acre Burdette' and Dorsey tract, and that the nest call in the deed, S 80 E 200 poles to a birch and spruce pine, runs with the Burdette and Dorsey line.

The evidence shows that the beech and chestnut, and the birch and spruce pine corners respectively, were marked prior to the deed to McQueen, and that a marked line extended between these corners; that this marked line was thought at the time of the deed to McQueen, as well as for many years afterwards, to be the line of the Burdette and Dorsey survey, and that McQueen on several occasions pointed out these trees as corners of his land. McQueen died in *6521899, and the plaintiffs in this action are his heirs. They now allege a latent ambiguity in the deed to' their father, in that, as they claim, the beech and chestnut corner, and the birch and spruce pine corner are not on the Burdette and Dorsey line, but that this line is located about 1,600 feet east of the beech and chestnut, and about 800 feet east of the other corner. The land in controversy embraces approximately 200 acres and is situate between the marked line extending from the beech and chestnut corner to the birch and spruce pine corner on the one side, and the Burdett and Dorsey line as located by the plaintiffs on the other. The plaintiffs admit that the general rule applicable to boundaries, as announced in *Matheny*v. *Allen,*63 W. Va. 443, *Curtis*v. *Meadows,*84 W. Va. 94, and other decisions would limit their claim to the line between the natural monuments. But they seek to establish title to the land in controversy under the exception to the general rule as stated in *State*v. *Herold,*76 W. Va. 537, *and Colliery Co.*v. *Campbell,*72 W. Va. 449, in the following manner:

> They offered in evidence three certain conveyances to Hooker, aggregating 4000 acres; they showed sales of 3628 acres of Hooker lands; they say that the 3628 acres came out of the 4000 acres, and that the residue of the 4000 acres was the tract conveyed to McQueen. The list of delinquent lands sold by the sheriff in 1875 was not recorded in manner prescribed by the statute, and for that reason it is admitted by the plaintiffs that the tax deed to their ancestor is void. Nevertheless, they contend that the tax deed was color of title to the residue of the Hooker lands, whether that residue consisted of 378 acres, or of a larger acreage, because (as they say) *the clerk intended to convey to McQueen such residue.*True the deed does not specifically call for the residue of the Hooker lands, and there is no direct proof of the intention of the clerk to convey such residue, but we are expected to infer or assume that such was the clerk’s intention. We quote from the plaintiff’s brief:

> “It will be observed by the court that this is the residue of a tract of Levi J. Hooker for the reason *653that same is bounded by tbe Burdett and Dorsey 500 acres, tbe Brieb tract of 722 acres, tbe Burroughs tract and tbe L. M. Atwood tract.-

> It is apparent from tbe deed to Burdett and Dorsey for tbe 500 acres, tbe deed to Brieb Of 722 acres, tbe J. B. Burroughs 549 acres, and the L. M. Atwood tract, that tbe McQueen ^as deed was surrounded by these tracts.”

> They further contend that Henry McQueen had possession for more than tbe statutory period of certain parts of tbe 378 acre tract and of tbe litigated tract; that tbe color of title given by the tax deed extended to all tbe land in controversy as part of tbe Hooker residue, and that by reason of McQueen’s possession of part, be acquired title not only to the land within tbe marked lines, but also to the land in controversy.

Copies of tbe land-book charges against Hooker are in evidence from which it appears that during the period in which be made the several conveyances to Burdett and Dorsey, Brich, Burroughs and Atwood, be was charged with several other tracts besides tbe three referred to by plaintiffs; that in tbe year 1869, when the tract of 378 acres first appeared on the land books, he was charged with six other tracts, each of which was described as situate on Brushy Fork, or Powell’s Mountain, or on both. It does not appear from the land book or elsewhere in the record that the residue of the said three Hooker tracts was in one tract, or that the 378 acres represented that residue. The 378 acres could just as well have been tbe residue of one or two of the tracts as to have been the residue of the three tracts. The description in the tax deed does not warrant the assumption that the 378 acres is surrounded by prior Hooker conveyances, as it contains at least twelve calls, totalling a distance of more than a mile, which do not run with either tbe Atwood, tbe Burroughs, the Brieb, or tbe Burdett and Dorsey tracts. Tbe record therefore affords no base from which plaintiffs can sustain their elaborate offensive.

The title to a tract of land sold for delinquent taxes and bought in by an individual remains in the owner of the land *654until all the essential requirements of the statute are complied -with. If the proceeding lacks any prerequisite to the validity of the deed, the deed is void and the owner’s title remains undisturbed. The construction placed on a like proceeding' to the one in question by this court in *Lumber Co.*v. *Nutter,*66 W. Va. 444, is that failure to record the delinquent list is more than “an irregularity, error or mistake in the performance of a duty. It is an utter failure to perform; it amounts to a vacuity and is not cured by the statute. ’ ’ The law therefore denies to a void tax deed statutory lineage, or legal potentiality. There remains of the tax proceeding only the paper writing, which, though barren in itself, may be used by the grantee for the sole purpose of defining the extent of a boundary to which he thenceforth lays claim. “Mere color of title is valuable only so far as it indicates the extent of the claim under it.” *Robinson*v. *Lowe,*50 *W.*Va. 75. “All the' decisions hold that it is necessary that the extent of the claim should be defined by the deed.” 2 C. J. par. 339, p. 177.

We are cited to no decision or authority advocating the enlargement of a *mere claim*beyond the boundary defined in the color. In *State*v. *Herold, supra,*and *Colliery Co.*v. *Campbell, supra,*the conveyances were, valid, and the intention which prevailed over the general law was the intention of the respective owners of the land to be affected thereby. In this case, the intention relied upon by the plaintiffs is the intention of the clerk, who acted ministerially and who had no interest in the land. The grantor in a mere colorable instrument usually has little, if any interest in the land he purports to convey. He ordinarily acts in hostility to the real owner. It would be farcical to permit the extent of the claim in a mere color to be enlarged, upon the intention of a grantor who as an individual or representative of the law, is hostile to the owner and has no personal interest in the land to be affected. The word “vacuity”, which this court has applied to a void tax proceeding, is defined as “emptiness, vacancy, want of reality, nihility.” Reason suggests no method of impressing a legal intendment on *vacmcy.*Imagination falters at affixing a ministerial intention to *nihility.*

*655Unless authorized by statute, the weight of authority supports the doctrine that even if a tax deed be otherwise valid, evidence necessary to identify the land will not be supplied by intendment. *A fortiori-,*the intention of a ministerial officer will not be permitted to extend the description in a void tax deed.

> “In a contract between individuals, if a latent ambiguity exist in the description of the land, parol evidence may be resorted to, to explain it, and give effect to the intention of the parties.**** But these principles are not applicable to conveyances by.the assessor, and parol evidence is not admissible to explain a latent ambiguity in such conveyance, or to locate the land.”

> *Wofford*v. *McKinna,*23 Texas 36.

> “There has, undoubtedly, been a difference between tax deeds and others in respect to sufficiency in description. As a part of the general strictness with which courts have uniformly regarded them, it has been held that no ’ intendments were to be made in their favor; and that, as the officers executing them acted under statutory powers, they must be sufficiently certain on their face, and would not be helped out by any inquiry into the probable intentions of the parties.”

> *Delorme*v. *Ferk,*24 Wis. 201.

> “In the case of private transactions, the courts, in construing the document, endeavor to collect the intention of the parties, and give that intention effect. If a latent ambiguity exists in the description, parol evidence is resorted to for the purpose of explaining it, and giving to the intention of the parties complete operation; and where the estate intended to be conveyed is sufficiently described in the deed or other writing, the addition of a circumstance, false or mistaken, will be rejected as surplusage, in order to carry that intention into effect. But in a tax deed words necessary to identify the land will not be supplied by intendment”.

> Blackwell on Tax Titles, par. 226.

*656Color of title bas been declared by this court in *State*v. *King,*77 W. Va. 37, to be merely a judicial fiction used in tbe administration of tbe Statute of Limitations for benefieient purposes, and that tbe doctrine “imposes no duty upon tbe courts to permit it to be used for tbe achievement of unjust or fraudulent results.” Tbe tract sold by tbe sheriff as comprising- 378 acres and conveyed to Henry McQueen as 400 acres, is shown by tbe evidence to really contain 496.52 acres. Tbe colorable tax deed bas already confirmed in plaintiffs tbe title not only to tbe 378 acres originally bargained for by their ancestor, but to 118.52 acres in excess thereof. What equity or benefieient purpose supports tbeir claim for an additional 200 acres? None is advanced and none appears in tbe record.

What tbe boundaries are, of a tract of land, is a question of law for tbe court. *Bradley*v. *Swope,*77 W. Va. 113. Tbe trial court should therefore “have construed tbe tax deed and instructed tbe jury, as requested by def endants, that tbe color of title under tbe tax deed to Henry McQueen extended no farther east than tbe line between tbe beech and chestnut, and tbe birch and spruce pine corners, respectively. Failure to do so, as well as tbe giving of instructions opposed to this bold-ing, was error. Tbe judgment will therefore be reversed, tbe verdict set aside, and a new trial awarded, if tbe plaintiffs are so advised, to be bad in accordance with tbe views herein expressed.

*Judgment reversed; verdict set aside; new trial awarded.*