CHARLESTON.

#### Thompson *v.*Cox *et al.*

Submitted June 23, 1896

Decided Dec. 2, 1896.

1. Tax Sales — Surplus prom Tax Sales — Statutory LimitaTION.

The words “within two years thereafter,” in section 6, art. XIII of the Constitution, and section 16, chapter 105, of the Code, are construed to mean two years after the sale, and not the decree directing the sale.

2. Judicial Sales — Decree op Confirmations — Inchoate Sale.

A judicial sale is not consummated and conclusive until a decree of confirmation transferring or directing the transfer of the legal title by proper conveyance, until which time it is a mere inchoate sale, liable to be defeated, and the title remains in the former owner.

3. Tax Sales — Statutory Limitation.

“Two years thereafter” means two years from the time the sale is fully consummated.

A. BüRlew for appellant,

cited 6 Wend. 486; 2 Denio, 160; 1 Hun, 51; 24 W. Ya. 581.

Dent, Jud&e:

Amanda Cox, widow and devisee of C. C. Cox, deceased, on the 20th day of April, 1893, filed her petition in the chancery cause instituted by William Thompson, commissioner of school lands of Boone county, for the purpose of subjecting certain forfeited lands to sale for the benefit of the school fund, asking to have decreed to her as such dev-isee the surplus of purchase money in excess of the taxes, interest, and charge due thereon from the sale of a two thousand acre-tract of land, sold as the property of C. C. Cox, deceased. On the 18th day of October, 1895, the Circuit Court of Boone county entered a decree refusing the *567prayer of petitioner, and dismissing ber petition. From this decree she now appeals.

The proceedings in the cause instituted by the commissioner of school lands, in so far as it is necessary to refer to them, were as follows: On the 18th day of April, 1885, a decree was entered directiug sale of the land in controversy. On the 17th day of July, 1885, the commissioner made his report that he had sold the land to M. P. Hern at the price of one thousand seven hundred and twenty dollars. On the 18th day of April, 1889, the court entered a decree merely confirming the commissioner’s report. On the 22d day of October, 1891, a decree was entered directing a resale of said land on account of the failure of the purchaser to comply with the terms of his purchase. On the 14th day of April, 1892, a decree was entered showing a virtual compliance of the purchaser with the terms of purchase, and directing a deed to be made to the purchaser by said- commissioner of school lands, conveying to him the legal title, and also providing for the payment of the taxes, interest, charges, and costs; and that, if any surplus should remain after the payment of same, the commissioner should deposit this surplus in the Charleston National Bank, at Charleston, W. Ya.; and that the cause be retained for the purpose of giving the heirs of 0. 0. Cox, or his or their assignees, an opportunity to appear, and assert their rights to such surplus.

The petition of appellant was filed in much less than two years from the entry of this last decree. The question here presented is as to whether such petition was in time to entitle the petitioner to have such surplus, and involves the construction of section 5, art. XIII, of the Constitution, as carried into effect by section 16, chapter 105, of the Code. The constitutional provision is in these words, to wit: “The former owner of any such land shall be entitled to receive the excess of the sum for which the land may be sold over the taxes charged and chargeable thereon, or which, if the land had not been forfeited, would have been charged or chargeable thereon since the formation of this state, with interest at the rate of twelve *per centum*per annum, and the costs of the proceedings, if his claim be filed in the cir*568cuit court that decrees the sale within two years thereafter.” The statute broadens the language of this section by extending it so as to include the former owner, his heirs, personal representatives, or assigns, or any creditor having a lien on the land sold at the time of the forfeiture, and still existing.

The first question that presents itself is as to whether the words “within two years thereafter” refer to the decree of sale or the sale. The provision, being remedial in its nature, should be construed liberally to effect the purpose of its adoption. It is true, as was held in the case *of McClure*v. *Maitland,*24 W. Va. 581, that this disposition of the fund was a mere gift or gratuity on the part of the state to the owner, provided application therefor was made in a certain limited time. Yet it is a gift founded on a moral or equitable consideration, and this is that the people of this state do not, simply because of forfeiture, desire to deprive a person of that which is rightfully his property. The laws of man can make or destroy rights, but cannot change the laws of morality, for they have been placed beyond their reach or control by a Supreme Legislator. The language used refers entirely to the disposition of the excess, which could not arise until after sale made; and thereby we are led to the conclusion that the words “within two years thereafter” refer to the sale, and not to the decree of sale. This construction is sustained by the opinion of Judge Snyder in the case of *McClure*v. *Maitland, supra,*where he says, on page 580: “This she (referring to the state) has done in explicit terms by fixing the surplus as the *quantum,*the proceeds as the form, and the filing of his claim therefor within two years after the sale of the land as the manner.” And he further intimates that the owner is not interested or entitled to be a party to the cause “until a surplus should be ascertained by the proceedings conducted alone by the state through her officers, * * * his right to the surplus proceeds not arising until after the sale.” The circuit court was probably misled by the last clause of section 16, above referred to, providing that “every such suit shall remain upon the docket of the court for two years after the date of the decree of sale in order that opportuni*569ty be given for the filing of such petition.” This provision was merely directory, and could not deprive a person, of his constitutional rights; and it was probably intended by the legislature not to mean the decree directing the sale of the land, but the decree of confirmation, for, until it is entered, there is no sale. *Hartley*v. *Roffe,*12 W. Va. 401.

The next question that presents itself is, when is there a “sale,” within the meaning of the Constitution? Repeated decisions of this Court have settled the law to be that a judicial sale is not complete or conclusive until a decree of confirmation transferring or authorizing the transfer of, the legal title. *Childs*v. *Hurd,*25 *W.*Va. 530, and cases cited therein. In the case under consideration there was no decree entered confirming the sale, passing the legal title, or directing a deed to the purchaser, until the 14th day of April, 1892, and until that date the sale was inchoate and incomplete, and there could not possibly be any excess shown to exist to which petitioner’s right could attach. Until that time the legal title remained in the state, and was withheld from the inchoate purchaser by the court, and might, on a reoffering of the same — usually called a “resale” — have been purchased by and passed to another person at a much less price, and therefore produce no excess except an uncertain remedy against the first for the difference between his bid and that of the second purchaser. 12 Am. & Eng. Enc. Law, 219; Ror. Jud. Sales, § 128, p. 62. The sale not being complete until the decree of the 14th of April, 1892, the period of two years thereafter did not begin to run until that date, so that appellant filed her petition in time to entitle her to the excess, and the circuit court erred in not granting her prayer.

The decree complained of is therefore reversed, and this cause is remanded to the circuit court with direction to ascertain the excess of purchase money of the land in controversy after payment of the taxes, interest, and costs, and decree the payment thereof to the appellant, Amanda Cox.

*579(Dec. 16, 1896.)