Wagner v. Beavers , 85 W. Va. 631 ( 1920 )

Poeeenbarger, Judge,

(dissenting):

I am Unable to concur in this decision. The turning point is conflict between the list of sales and the memorandum- of sale executed by the sheriff and delivered- to the purchaser, the former having been made by the sheriff, presumptively in the absence of the purchaser and after all the sales had been completed, and the latter, presumptively at the time of the particular sale in question and in the presence of the purchaser; the giving of the receipt being an inter partes act and the making of th e report, an ex parte act.

In the Iowa cases referred to' in the opinion prepared by Judge Ritz and adopted by my associates, the statute required the certificates given to the purchasers, to be made from the record of the sales filed, and not at the time of the sale. The report or list of sales was first made up and recorded or filed for record and then the receipt or certificate was made from and based upon that report or record. The receipt or certificate was required by express terms of the statute to conform to the record, whether the latter was right or wrong. Under our statute, the receipt is not based upon the list of sales nor made after the filing theredf. It is an original paper and antedates the preparation and filing of the list of sales. In Minnesota, the order of procedure and relation in point of time between the delivery of the certificate to the purchaser and the making of the record, are the same as they are under ours, and, there, the certificate is regarded as the better or superior- evidence and hence allowed to prevail over the record, in instances of conflict. McQuade v. Jeffray, 47 Minn. 326.

In my opinion, the difference between the legal status of the purchaser’s certificate, ■ under the Minnesota statute, and the receipt provided for by ours, does not afford any good ground of escape from the effect of the precedent found in the decision above cited. Oúr receipt is a formal, statutory one which the selling officer is bound to give and for which the purchaser pays a fee. It contains the same columns and provides for the same data that the list of sales is required to have, in so far as it pertains to the tract of land embraced in it. While it does not convey .title, it is evidence of the purchaser’s right. It constitutes in part the basis of right to obtain a deed for the land mentioned in it. From it is to be ascertained the date of the expiration of right in the former owner to redeem, by express provision of the statute. The form of -deed prescribed recites expiration of such right “as appears by the sheriff’s receipt for the purchase money.” Code, ch. 31, sec. 19. By virtue of sec. 15 of that chapter it is made determinative of the amount of the purchase money and the date from which to calculate interest thereon, in the event of a redemption. Though not rising to the dignity of a Minnesota certificate in all respects, it confers absolute and substantial right respecting both the land and the purchase money, and it is an inter partes paper embodying the evidence of a transaction between two persons, as does the Minnesota certificate. Nowhere in thé statute is the list of sales declared to be prima facie correct, nor does the prescribed form of deed refer to it any way. The higher character of the receipt is shown by the two instances in which it is expressly adopted as being true. Moreover, every receipt is by the common law deemed to be prima facie correct, and the burden rests upon him who denies its correctness to overthrow it by proof. This is more than a mere receipt for money. It is a statutory memorandum of a sale of land, amounting to a contract authorized by law. While it does not pass title, it is a contract having the same dignity and sanctity as other contracts. Regarded as a contract, it is just as sacred and entitled to just as much respect, as the Minnesota certificate. Again, there is no intimation of any imperfection or mistake iü any receipt. Nowhere is there a .provision curing defects in it. But the statute does assume probability of errors and omissions in the ex parte list of sales. Section 25 of the chapter says: “No irregularity, error or mistake in the delinquent list, or the return thereof, or in the affidavit thereto, or in the list of sales filed with the clerk of the county court * * * shall, after the deed is made, invalidate or effect the deed or sale.”

The statutory preference of the receipt over the list of sales, in tbe two instances noted, does not argue lack of intent to make it prevail in others, under the rule Expressio unius est exclusio alterius. In giving it such effect in these two instances, the list of sales is not mentioned.” The preference is effected only by necessary implication. Nothing is said of the relative rank and dignity of the two papers anywhere in the statute. It merely deals with and 'recognizes the receipt as the superior evidence in the. two subsequent transactions contemplated, redemption and the máking of a deed in default of redemption. Recognition of its superiority in these two instances argues legislative impression or assumption of general superiority, or intent to confer it. And that impression, assumption or intent agrees with the general principle of law that a contract between two men, solemnly made, stands upon higher ground, in any controversy between them, respecting its subject matter, than the subsequent conduct of one of them in the absence of the other, by which their relative rights in the subject matter may be affected. Acts of public officers are presumed to be right, but the presumption is rebuttable. An unimpeached contract between two men is right as matter of law, not as a matter of mere rebuttable presumption, even though one of them acts as a public .officer and the other in his private capacity.

That the receipt is evidence of a contract made by the sheriff acting for the state or some , other principal, there can be no doubt. The statute denominates the transaction a sale, and a sale always involves a contract. Money is paid by the purchaser in exchange for which he receives a paper signed by the sheriff and giving him conditional right to call for a deed which the statute makes prima facie evidence of good title against the former owner and persons claiming under him and conclusive evidence thereof against other persons. That paper, when produced, proves a conditional sale of certain land. That there is a point in the proceeding at which a sale is effected, the statute necessarily implies. At what point can that take place ? Obviously at the exchange of the money for the memorandum of sale. The purchaser’s bid initiates the transaction, and it is completed by delivery of the memorandum. All that precedes and follows is ex parte. Now, the statute says: “No sale or deed of any such real estate under the provisions of this chapter shall be set aside, or in any manner affected by reason of the failure of any officer mentioned in this chapter to do or perform any act or duty herein required to be done or performed by him after such sale is made, or by the illegal or defective performance, or attempt at the performance, of any such act or duty after such sale.” Code, ch. 31, sec. 25. This statute has been enforced agreeably to its letter. State v. McEldowney, 55 W. Va. 1; Starr v. Sampselle, 55 W. Va. 442, 450. The sale having been completed by delivery of the signed memorandum, the making out of the list of sales is an act or duty required by the sheriff, “After such sale is made,” and the statute says total failure to perform it shall not invalidate the deed still later made.

Reference to the history of tax-deed legislation proves legislative purpose neither to make the deed depend upon the list of sales nor to make it conform thereto. See. 19 of ch. 33, Code of 1868, did require such conformity, saying the deed should recite “All the material circumstances appearing in his (the recorder’s) office in relation to the sale.” In Jones v. Dils, 18 W. Va. 756, a deed conveying a less quantity of land than was shown by the list of sales to have been purchased, was set aside in 1881. At the next session of the Legislature, the requirement of that recital was struck out of the statute, by an amendment and has never appeared therein since. Acts 1882, ch. 130, sec. 19. At the same time, sec. 25 was so amended as to prevent the setting aside of deeds on the ground of the decision in Jones v. Dils. At the same time, sec. 19 was so amended as to require the deed to recite the receipt or memorandum of purchase, instead of the list of sales. And, again, sec. 25 was then amended by insertion of the broad curative provision above, quoted, inhibiting the setting aside of any sale or deed, for any omission or error on the part of any officer, after sale was made.

In view of the superiority thus given'to the receipt or memorandum of purchase, I do not see how it can be held that, in ease of a discrepancy, the list of sales can be permitted to prevail over it. The deed would be good, if there were no list of sales at all. How can a list shown by the contract to be erroneous be permitted to invalidate it?