Kelly v. Gwatkin , 108 Va. 6 ( 1908 )

Whittle, J.,

delivered the opinion of the court.

The lot in controversy was returned delinquent by the treasurer of the city of Richmond, in the name of the Finance Trading Company, trustee, and sold March 25, 1901, to the appellant, Michael Kelly, for the amount of State taxes due thereon. As devisees of Philomena M. Smith, and by virtue of legal proceedings against the Finance Trading Company, trustee, the appellees, on February 18, 1904, acquired the clear legal and equitable title to, and possession of, the lot in question, affected only by the tax deed of appellant, which was procured under the circumstances to he mentioned presently.

The state of the law at the time of the tax sale was that after the expiration of two years from that date, the purchaser of any real estate not redeemed should he entitled to receive from the clerk of the county or corporation, whose officer made the sale, a deed to such real estate. Va. Code, 1904, sec. 655.

Under that provision the appellant’s deed would have become due on March 25, 1908. But by an Act approved April 2, 1902, eleven months and twenty-two days before the period of redemption had expired, section 655 was so amended as to provide, that “in no ease shall any such deed be made to any such purchaser until after such purchaser has given to the person in whose name the real estate so sold stood at the time of said sale * * * four months’ notice of his said purchase. * * * This section shall apply as well to real estate heretofore sold as to such as may be hereafter sold for taxes and levies * * ”

On June 22, 1903, without having given the four months’ notice required by the amendment, the appellant applied for and received his deed, which was put to record the following day. The recordation of the deed first apprised the appellees of the tax sale; and they immediately endeavored to relieve their title of the cloud cast upon it by the tax deed, hy the offer of $250 to the purchaser, a sum largely in excess of the amount required by law to redeem the lot. This offer was rejected, and the right of the appellees to redeem denied, on grounds other than non-tender of the money. Nevertheless, the appellant invited the continuation of negotiations looking to the offer of a larger sum.

Under these circumstances, the appellees filed their bill to have the tax deed declared void, and to remove the same as a cloud upon their title. There was a demurrer to the original bill, the ground relied on being the omission to allege a tender or offer to redeem prior to the institution of the suit. The averment in that regard in the original bill was: “Your orators here offer to redeem said land from said defendant upon the terms required by law, as they have heretofore offered the said defendant without avail, and upon such additional terms as to the court may seem just and equitable.”

Upon the motion of the plaintiffs, the court, over the objection of the defendant, without formally passing upon the demurrer, permitted an amended bill to be filed, which alleged, among other matters, with greater particularity the unsuccessful efforts of the plaintiffs, before suit brought, to redeem the land, and the denial of their right to redeem, both by the defendant and clerk, on the hypothesis that the statutory period for payment had expired.

There was also a demurrer to the amended bill, and the chancery court, upon the pleadings and evidence, entered the decree appealed from, sustaining the appellees’ right to redeem, and at the same time refunding to the appellant the amount to which he was entitled out of the fund deposited to the credit of the suit for that purpose.

The first assignment of error involves the action of the court in permitting the plaintiffs to file the amended bill.

Under the liberal practice which obtains in equity courts in this jurisdiction in allowing amendments, there can be no doubt of the propriety of the ruling of the court in that particular. The purpose of the amendment was not to introduce a substantive cause of action different from that asserted in the original bill, but merely to set forth with greater particularity of averment matters arising out of the same transaction and germane to the objects for which the original bill was filed.

In Parsons v. Newman, 99 Va. 298, 38 S. E. 186, cited to sustain the assignment, an amended bill was allowed, which came within the foregoing rule. See Glenn v. Brown, 99 Va. 322, 38 S. E. 189; Tidball v. Shenandoah National Bank, 100 Va. 741, 42 S. E. 867.

The assignment touching the overruling of the demurrer proceeds upon the assumption that a redemptioner can not invoke the jurisdiction of a court of equity until he has first exhausted his statutory remedy by tendering the amount of taxes, costs and interest to which the purchaser is entitled under section 650.

Conceding the correctness of the general statement of the rule, the doctrine is, nevertheless, well settled otherwise where, as in this instance, the redemptioner* has, in proper time, made a sufficient offer to redeem, which the purchaser has rejected on grounds distinct from non-production of the money. In such case, a court of equity will entertain a bill to cancel a tax deed, without formal tender of dues; enforcing the right of redemption, however, only upon terms of payment of the requisite amount. Blackwell on Tax Titles (5th ed.), sec. 727; Desty on Taxation, 888; Koon v. Snodgrass, 18 W. Va. 320, 333; Townshend v. Shaffer, 30 W. Va. 176, 180, 3 S. E. 586.

That principle was maintained by the West Virginia court, in the cases cited above, though the statute of that State makes a tender of redemption money a condition precedent to the maintenance of a suit to cancel an invalid tax deed.

We shall next consider the rights of the parties under the amended act of April 2, 1902.

It is insisted that the act is unconstitutional because its title does not express the object of the amendment, as required by article V, section 15 of the Virginia Constitution, 1869. The section provides, in that connection, that, “No act shall embrace more than one object, which shall be expressed in its title; * * ”

The title to this act is as follows: “An act to amend and reenact section 655 of the Code of Virginia, in regard to when deed made to purchasers; clerk to make it; what to contain; fee for clerk.”

We are of opinion that the objection is not well taken. The act as amended does not embrace more than one object; the matter of the amendment is in no sense the object of the act, but a mere incident of procedure. Besides, this is an amendment of a section of the Code, with respect to which Judge Riely, in Iverson Brown's Case, 91 Va. 762, 775; 21 S. E. 357, 28 L. R. A. 110, remarked: “It was not to amendments to general statutes thus consolidated into a Code that section 15 of article V of the Constitution was intended to apply, but it was aimed at the separate acts in their original enactment, when the opportunity existed for the evils and mischief to be done, which the constitutional provision was designed to prevent or defeat.”

As we have seen, at the date of the amendment, the purchaser’s deed was not due for eleven months and twenty-two days, which afforded him ample time within which to comply with its terms, by giving to the person in whose name the real estate stood at the time of the sale four months’ notice of his purchase. That the requirement of the act as to notice applies to sales theretofore made as well as to those thereafter made, is placed beyond the pale of interpretation or debate by the unmistakable language employed. Kor is there merit in the objections, that the provision as to notice is too vague and indefinite for enforcement, and that the corporation entitled to notice (the Finance Trading Company, trustee) was dissolved at the date of the amendment.

The enactment with respect to notice must be read in connection with Va. Code, 1904, section 3207, which makes ample provision for serving notice where no particular mode of service is prescribed. As to the other ground of objection, it affirmatively appears that, although the company had made a general assignment, it was still in existence; and it also appears, that the appellant made no effort to comply with the amendment, insisting then, as he now insists, that it did not apply to his purchase.

This brings us to the consideration of the last assignment, namely: that the amendment impairs the obligation of the statutory contract entered into by the State on the one hand and the purchaser on the other, and is, therefore, repugnant to article I, section 10 of the United States Constitution, which prohibits any State from passing an act impairing the obligation of a contract.

In the case of The State ex rel. Knox v. Hundhausen, Treas., etc., 24 Wis. 196, the constitutionality of an amendment to a cognate statute of the State of Wisconsin, identical in legal effect to the amendment in question, was maintained. The court there held, that the feature of the act “applicable to persons holding certificates of prior sales (which required such holder of a tax certificate to notify the person, if, any, in adverse possession of the land, of his intention to apply for a tax deed), is valid as to sales made before its passage, when a reasonable time was given the holders of certificates to comply with its provisions, so as to obtain their deeds when they would otherwise have been due.” In that case, the act requiring notice took effect in April, 1867, and the tax deed would not have become due until January 25, 1868. It was held that the act applied, if there was any person in adverse possession for thirty days or more, at any time within' six months immediately preceding the expiration of the time of redemption; that it was competent for the legislature to regulate and change the modes of conducting the official and public business of the State, although the changes imposed upon parties holding contracts the necessity of complying with such new formalities in order to enforce their rights under their contracts. The coxxrt adds: “Of coux-se, this doctrine is subject to the xmle that every provision of substantial benefit in the contract must be left unimpaired. * * *

“The legislature, upon grounds of public policy, and for the purpose of better protecting the rights of those having rights of redemption, required the holder of the certificate to notify the person in possession of the land, if any, of his intentioix to apply for a deed. This does not interfere at all with his rights under the contract.”

If this question were res integra, its importance would demand a review of some of the leading decisions in analogous cases, but fortunately we have an authoritative decision of the Supreme Court of the United States, the final arbiter in such mattei’s, likewise sustaining the constitutionality of the Wisconsin statute. Curtis v. Whitney, 13 Wall. 68, 20 L. Ed. 573.

In that case, Mr. Justice Miller, delivering the unanimous opinion of the court, observes: “Did the statutory requirement, that the holder of such certificate should give notice to whoever might be found in possession of the land before taking a deed, impair the obligation of the contract made at the tax sale ? It must be conceded by all who are familiar with the vast disproportion between the value of the land and the sum for which it is usually bid off at such sales, and the frequency with which the whole proceeding is conducted, to the making of the conveyance intended to pass the title, without any knowledge on the part of the real owner, that the requirement is an eminently, just and proper one. FTor is it difficult to comply with, as it is only made necessary when some one is found on the land, on whom the notice can be served, and the, cost of serving the notice must be paid by any party offering to redeem.

“That a statute is not void because it is retrospective, has been repeatedly held by this Court, and the feature of the Act of 1861, which makes it applicable to certificates already issued for tax sales, does not of itself conflict with the Constitution of the United States. Nor does every statute which affects the value of a contract impair its obligation. It is one of the contingencies to which parties look now in making a large class of contracts, that they may be affected in many ways by State and national legislation. For such legislation, demanded by the public good, however it may retroact on contracts previously made, and enhance the cost and difficulty of performance, or diminish the value of such performance to the other party, there is no restraint in the Federal Constitution, so long as the obligation of performance remains in full force.”

This decision, which was rendered thirty odd years ago, has been frequently cited with approval, and is conclusive of the constitutionality of the act under review.

It may be noted that the Virginia redemption statute, section 650, makes provision for repayment of “the whole amount paid by said purchaser, and any such additional taxes, levies, costs and charges as may have been paid by him since the sale, with interest * * * on the amount so paid.

We are of opinion that the decree of the chancery court is plainly right, and it is affirmed.

Affirmed.