Old v. City of Norfolk , 178 Va. 378 ( 1941 )

Holt, J.,

delivered the opinion of the court.

Petitioners are seeking relief from the payment of certain taxes assessed against real estate in the City of Norfolk.

John E. Eiddick was the owner of these properties, four in number. By deed of date April 1, 1921, in which his wife, Lizzie Y. Eiddick joined, they were conveyed to Eobert W. Tomlin, trustee, in trust for purposes there named. Tomlin was to collect rents, pay taxes and keep the property in repair, and turn over the net balance to the wife. She was further given the power of disposition by will, provided' certain things had not come to pass. This deed contained these somewhat unusual provisions :

“(5) The said Lizzie V. Eiddick hereby covenants to and with the said John E. Eiddick that at and after the date of this deed, and so long as she shall remain the wife of John E. Eiddick, she will at his request promptly unite with him in deeds of bargain and sale and deeds of trust or mortgage, the same to be done by signing, sealing and acknowledging such deeds for records, conveying real estate now owned and real estate hereafter to be acquired by said John E. Eiddick, for the purpose of releasing’ her inchoate right of dower or any other interest or claim she may have in and to such real estate; and she further covenants that failure or refusal on her part to keep this covenant shall ipso facto work a forfeiture of the trust estate hereby created; and upon such failure or refusal on her part, the said trustee and his successor, in title shall upon request of the said John B. Biddick immediately convey to the said John B. Bid-dick, or to such person or persons as he shall designate, the whole of the trust property existing at the time of such forfeiture by good and sufficient deed containing a special warranty of title on the part of the said trustee. But no such conveyance shall be made until the trustee shall have tendered to said Lizzie V. Biddick the deed or deeds which the said John B. Biddick shall have requested her to execute and acknowledge, and she shall upon such tender fail or refuse to execute the same as above provided. Should the said Lizzie V. Biddick remove from the City of Norfolk, she shall give the address of her new residence or place of sojourn to the said trustee and a tender, made to her at such address by such agent or representative as the trustee may select shall be a sufficient tender hereunder. And if the said Lizzie V. Biddick shall remove from the City of Norfolk and fail to inform the trustee of her new address and keep him informed of any change of address, and such failure on her part'shall also be treated as a forfeiture of the trust estate in all respects as if she had failed or refused to execute a deed as above set forth.

“(6) The said Lizzie V. Biddick further covenants, that notwithstanding she is the sole beneficiary mentioned herein, this settlement is intended and agreed by her and the said John B. Biddick, her husband, to supply for her an income sufficient for the support and maintenance of herself and the three children of the- said Lizzie V. Biddick and John B. Biddick; the said income herein provided being in addition to the conveyance, heretofore made by the said John B. Biddick to the said Lizzie V. Biddick, of certain real estate in the City of Norfolk, Virginia, the same being* the property at pres-' ent Numbered 768, Avenue ‘B ’, and being now occupied by the said Lizzie V. Riddick as her home, and the said Lizzie V. Riddick covenants and agrees that the three children aforesaid shall reside with her and that she hereby assumes their support and maintenance.”

It will be noted that John R. Riddick retained the power to revoke this trust at his election, and his wife was required to use the net proceeds, certainly so far as was necessary to discharge those obligations which primarily rested upon her husband. This situation continued until the 4th of June, 1930, when, by another deed, he released to his wife all that he had reserved to himself in the deed of April 1, 1921.

Lizzie V. Riddick died testate on September 15, 1935. During* all of this time these properties were carried on the land books in Norfolk in the name of John R. Rid-dick, and no' tax thereon has been paid.

Our Constitution, section 168, provides that all property, subject to exceptions irrelevant here, shall be taxed. The machinery for carrying into effect this Constitutional mandate is, of course, statutory. The commissioner of revenue for each year is required to make out a list of properties for taxation, together with' the names of the persons against whom taxes thereon are chargeable. Tax Code, sections 252 and 254, and School Board v. Patterson, 111 Va. 482, 69 S. E. 337.

If we are to concede that the wife’s name as owner should have appeared and not her husband’s, this error, in the light of the facts in this case, is not fatal.

It is true that the owner’s name should appear, but this is not always absolutely necessary.

“The authorities generally hold that if a mistake in name is not calculated to mislead it is immaterial, and will be disregarded. The underlying principle in such cases is that a person whose property is liable to assessment for taxes shall not be permitted to evade payment of his just proportion of the public burden by any errors, omissions, or irregularities that do not prejudice his rights. * * Stevenson v. Henkle, 100 Va. 591, 42 S. E. 672.

However, it is not necessary to invoke this rule in this case, for these lots were listed as they should have been. It was the husband who continued in control. He could sell at any time, at any price and to anybody. Not only did he retain the right to sell, but he also retained the right to mortgage. In either of these events, the wife would have been obliged to acquiesce in whatever he did and to unite with him in any deed or mortgage which he saw fit to make. She must “at his request promptly unite with him in deeds of bargain and sale and deeds of trust or mortgage,” * * * “at and after the date of this deed.” . Property owned, “at” the date of the deed is covered, and property acquired “after the date of this deed” is covered also. This last contingency does not appear to have happened, and so we are not called upon to consider the effect of the last named provision. At his will he could terminate his wife’s estate, and so she was a tenant at will. In all of this, in terms too plain to be misunderstood, we look to substance and not to shadows.

If the assessment in the name of the husband, which continued until 1930, was void, this result, unlooked for and curious, might have followed: Had he resumed control in that year, he would have taken back' thb property free of tax for the preceding nine years.

After the deed of 1930 had been put upon record, there was no possible way in which the situation could have been misunderstood. Complete title was in the wife, and it should have been taxed to her.

The decree appealed from should be affirmed, and it is so ordered.

Affirmed.