The Clarksburg telegram. [volume] (Clarksburg, W. Va.) 1874-1926, 1912-03-07
SHERIFF CAN SELL
ONL Y ON LA w DAYS
An Important Decision as to
Sale of Delinquent
Tax Lands.

Tor delinquent taxes at time not
fixed by the statute, Is the opinion OF
the supreme court of appeals of this
state in an opinion written by Judge
Williams and handed down this week
In which the circuit court Of Gilmer
county was reversed and the case
OF Hardman, ct ais, VS.. Brannon was
remanded for new trial.
The case is one of considerable in
'terest as the validity of many pieces
Of property on which taxes are de-
llnquent, is involved, and therefore
brief history of the early stages OF
the case may be Of interest.
Marcellus Hardman and Marcellus
Stump, In his own right and as ex-
ecutor of Susan NJ. Stump, deceased,
appealed from a decree Of the cir
cult court of Gllmer county, made on
the 18th day of March, 1907, dis
missing their suit which had been
brought for the purpose OF avoiding
u tax deed made to Edwin L. Brannon
on the 18th Of June, 1904, for tract of
ninety-five and three-fourths acres OF
land. Hardman acquired the land BY
deed from ]. NJ. Hamilton, special
commissioner, April 90, 1889, in d.
suit in the circuit court of Gilmer.
county, styled Spencer Collins. trus-
tee, vs.. Marcellus Stump and others,
but did not have his deed recorded
until February 10, 1902. Hartman
then sold it to Susan NJ. Stump, but
retained title to secure $500 OF the
purchase price. Mrs. Stump died,
testate, in May 1904, leaving Marcellus
Stump her sole devisee and executor
Hartman not having recorded h's
deed from the commissioner, the land
remained on the land books assessed
with taxes in the name of Marcellus
Stump, the former owner, and pres,
ent owner OF the equitable title. 1t
was sold in March 1903 in the nam6
of Marcellus Stump, for the delin>
quent taxes of 1900, as a tract OF
fifty-nine acres, and was purchased
by the defendant, Edwin l.. Brannon,
for 1880. tsat }uR
The tax deed recites that the sale
was commenced and completed in the
month of March, 1903, and the plain
TIL alleged that the inyalidity Of the
deed was thereby shown, because the
sheriff could not then lawfullylsell.
The court says: The. time when
he SHERIFF shall, sell, depends upon
statute and adds further: THE
statutetsays hesmpst sell on the first
day of a circuit court, Whichever is
first held, after the completion Of
publication. No other time is given.
Does. it affirmatively appear that the
sale was no commenced on the first
day of the first term OF court, cir
cult or county, whichever was first
held in 1903? We think it does, and
in the following manner. Under the
law then d9O3) in force, Code 1893,
for Gilmer county was appointed for
page l14S) term of the circuit court
the first day of February. This tact
we take judicial knowledge of be-
cause tits fixed by public statute.
The sheriff's return of sales, and the
deed, both show that the sale was
begun on the second, and completed
on the third day of March, 1903, a
time beyond the February term OF
circuit court" And again the court
holds: Seeing that there was 4
term of the circuit court for Gilmer
county which the statute says shall
be held on the first day Of February,
we are Of the opinion that the sherifr
could not lawfully sell in the month
OF March. Whether the February term
of the circuit court was actually held,
or not, is not material, because the
time fixed by the statute for the hola.
ing Of the court is more material, in
determining the time when the sher-
III should publish notice that his sale
will be made, than the actual holding
of the court on the day fixed"
The tax deed was held to be void.
Among other points held in this
case are: III a sheriff should
not receive the list of delinquent
lands from the auditor in time to com
plete the publication of notice of sale.
and thereafter sell in November OF
December, as provided in Sec. 6, Chap.
81, Code 1906, he must, after first
publishing the notice required, com
mence his sale on the first day of a
circuit or county court, whichever is
first fixed by law to be held in the
next succeeding year. Error In the
time OF making sale, appearing on the
face of the proceedings, is fatal. II
is not cured by Sec. rs, Chap. 81,
Code 1905"