Wheeling.

BRADLEY et al. v. EWART et al.

Decided November 19, 1881.

*(PATTON, JUDGE, ABSENT.)

1. Where the plaintiff in error himself has done some act, since the judg

ment complained of was rendered, that would in law prevent him from obtaining any fruits of a writ of error, and the matter is in such form, that the Appellate Court can act upon it, his writ of error will be dismissed.

2. But where the motion to dismiss is founded upon an alleged forfeiture of
defendant's title after judgment in an ejectment-case, the motion will
be overruled.

3. In an action of ejectment involving the title to the land in controversy,
if the plaintiff recovers, it must be upon the strength of his own title,
and he cannot be aided by the weakness of the title of his adversary.
4. If land is entered on the assessor's books in the name of the party, who
by the record of deeds appears to be the owner of the land, and by mis-
take or otherwise the land is placed on said books in the name of the for-
mer owner, and the taxes are in fact paid by the owner in his own name,
and the land is returned delinquent for the non-payment of the taxes
for the same years in the name of the former owner and sold in his
name for the non-payment of such taxes, and the purchaser at such
sale procures a deed from the clerk of the county court for such land,
the sale is illegal, and the deed null and void.

5. Section 27, chapter 31 of the Code of 1868, does not apply to such a case
but to cases, where the owner, who is charged with paying the taxes,
has neglected to look after the land and see, that it was on the books in
his own name, or where he has failed to have it put on the books in his
own name, and the land in the title, under which he claims, or by mis-
take in his own name has been returned delinquent for taxes, which he
has in fact paid. In such cases he must file his notice within five years
after the deed to the purchaser has been recorded, alleging the payment
of the taxes, for the non-payment of which the land was sold.

6. But if the land was improperly on the assessor's books and sold in such improper name, when the taxes had been paid by the rightful owner, the statute does not apply, and at any time in a proper case the said sale and deed may be declared illegal and void.

Writ of error and supersedeas to a judgment of the circuit

*Case submitted before the JUDGE took his seat.

court of the county of Raleigh, rendered at the November term thereof in the year 1876, in an action in said court then pending, wherein John D. Bradley and others were plaintiffs, and John S. Ewart and others were defendants, allowed upon the petition of said defendants.

Hon. Evermont Ward, judge of the ninth judicial circuit, rendered the judgment complained of.

JOHNSON, PRESIDENT, furnishes the following statement of the case:

In May, 1874, John D. Bradley filed his declaration in ejectment in the circuit court of Raleigh county, to recover of the defendants, John S. Ewart, Betsy Walker, Malinda Walker, Priscilla Walker, James H. McGinnis, Samuel Cantly and John A. Douglass, a tract of twelve thousand four hundred and fifty acres of land in said county. The declaration contained four counts: the first in the names of said Bradley and Henry Labaume, Thornton T. Labaume, William A. Labaume and Morales Labaume in their own right and as joint and several executors respectively of Peter A. Labaume, deceased; the second in the name of the said John D. Bradley alone; the third in the names of Thornton T. Labaume, Henry Labaume, William A. Labaunie and Morales V. Labaume; the fourth in the names of said Labaumes as joint and several executors of Peter A. Labaume, deceased. On the 6th day of October, 1874, "on motion of the plaintiff, John D. Bradley, the counts in the declaration in the names of W. A. Labaume, Henry A. Labaume, Thornton T. Labaume and Morales Labaume were discontinued at the said Bradley's costs." At the October term, 1875, the defendants pleaded "not guilty," and issue was thereon joined. At the same term this order ap pears:

"This day came the parties by their attorneys and by consent their counsel submitted the case to the court in lieu of a jury, to be heard and determined upon the pleadings and written statements and arguments of the parties signed by the counsel of the plaintiffs and defendants respectively, dated October 13, 1875, and agreed to be made part of the record; but the parties are to have the right to furnish any of the cer

tificates, copies or records provided for in said agreement at any time before or at the next spring-term of this court."

I will not set out in full the facts agreed, but only so much as will be necessary to the proper understanding of the opinion of the Court. It was agreed, "that on the 1st day of January, 1851, Benjamin H. Smith was seized in fee of the land in controversy"; that the land in controversy is the same land described in a deed of conveyance made by said Smith to Peter A. Labaume bearing date on the 19th day of September, 1851; that it is the same land described as a tract of twelve thousand one hundred and seventy-eight acres in a deed made by Daniel Shumate, clerk of the county court of Raleigh county, to the defendants, Ewart and others, dated September 30, 1858; that it is the same land described as a tract of twelve thousand one hundred and ninety-eight acres in a deed from Clarkson Prince, recorder of said county, to said John S. Ewart, dated October 16, 1869, certified copies of which deeds it was agreed should be filed as a part of the agreement, which was done; that it is the same land described as a tract of twelve thousand four hundred and fifty acres in a deed from said Clarkson Prince, recorder, to the plaintiff, John D. Bradley, dated March 1, 1870; that it is the same land described in a deed from John Rogers to said Ewart, dated 17th August, 1868, copies of which last mentioned deeds it was agreed should be made part of said agreement, which was done; that the land described in the deed from Clarkson Prince as recorder to John S. Ewart, dated 16th October, 1869, is the land in controversy; that said land was assessed for the year 1851 in the name of Benjamin H. Smith, and that on the 19th of September of that year said Smith, as already stated, conveyed said land to Peter A. Labaume; that said land was in the name of said B. H. Smith returned delinquent for the non-payment of the taxes due thereon for the year 1851, and that in 1855 the said land was sold by the sheriff of Raleigh county to pay said taxes, and said John S. Ewart for himself and Archibald B. Walker, as agent for Elizabeth Walker, Malinda Walker and Priscilla Walker, became the purchasers of said land, and on the 30th day September, 1858, Daniel Shumate made, as clerk of the county court of Raleigh county, a deed for said land to said purchasers, and that said deed was recorded

on the 1st day of October, 1858; that the then commissioner of revenue of said county of Raleigh did assess said purchasers with taxes upon said land for the years 1865 and 1866, and that the proper commissioner of the revenue did assess said lands for every year since the year 1858 to the present time.

They further agree, that said purchasers paid the taxes assessed against them upon the land aforesaid to the then sheriff of the county of Raleigh for said years of 1865 and 1866, when due, and that said purchasers paid all the taxes assessed against them upon said land, when due, for every year since 1858 to the proper sheriff. They also agree, that the taxtickets made and signed by Lewis Hall, who was sheriff of said county of Raleigh for the years 1865 and 1866, shall be considered part of the agreement aforesaid. They further agree, that the commissioner of the said county of Raleigh assessed Peter A. Labaume with the taxes upon seven thousand acres, part of said land in controversy, for the years 1854, 1855, 1857 and 1858, and said Smith with the residue of said tract during the years last aforesaid, and that the taxes so assessed were not paid by either Labaume or Smith; that said lands were returned delinquent in the names of said Labaume and Smith for said years, and said lands were by the sheriff of said county on the 24th day of September, 1860, sold for the non-payment of said taxes, and the defendant John S. Ewart became the purchaser, and that on the 17th day of August, 1868, John Rogers, as deputy recorder of said Raleigh county, made said Ewart a deed for said lands, which deed was promptly recorded.

They further agree, that Clarkson Prince, who was then recorder of said county, on the 16th day of October, 1869, "did make, sign, seal, acknowledge and deliver to said John S. Ewart a deed for the land in controversy," a copy of which deed is made a part of the said agreement, which deed recites the same sale as is recited in the deed from John Rogers, deputy recorder, above referred to. This deed, as the agreement shows, was recorded on the 18th of October, 1869. They further agree, that said land was entered on the commissioner's land-books of Raleigh county for the years 1865 and 1866 in the name of Peter A. Labaume; and was assessed for taxes

in these two years in his name and was in said name returned, by the sheriff of said county delinquent for the non-payment of taxes thereon in said name for the years 1865 and 1866, and was sold by the sheriff of said county on the 25th day of October, 1867, for the non-payment of said taxes for said years 1865 and 1866 in said name of Peter A. Labaume, and the plaintiff, John D. Bradley, became the purchaser thereof, and on the 1st day of March, 1870, Clarkson Prince, recorder of said county, as such made a deed for said land to the plaintiff, John D. Bradley, which deed was recorded on the 2d day of March, 1870.

There is in the agreed facts a claim of adversary possession by the defendants with the facts tending to show, that the possession was not sufficient to give title to defendants. There is this further clause in the said agreement: "But whereas it is possible errors and omissions may have been committed in the foregoing statement, it is distinctly understood and agreed between the parties, that each party shall be entitled upon the trial of the above case to correct any such admissions or recital made against him, or supply any such omission, as he may desire; but it is further agreed, that such correction or supplement shall be made by record-evidence only, certified by the proper officer, and when such certified copy of such record be produced, it shall be part of such agreement. By record-evidence is meant the entries relative to the land. in controversy or any part thereof made by the proper officers between the 1st day of January, 1850, and the 1st day of January, 1871, in books of the commissioners of the revenue of Raleigh county, the sheriff's lists of delinquent lands, the sheriff's lists of delinquent sales, and the auditor's list of land certified to the sheriff for sale, and the orders of the court relative thereto, and also sheriffs' or other officers' receipts for taxes on the land in controversy or any part of it. It is further understood, that the above admissions are made subject to all legal exceptions by either party for irrelevancy or insufficiency to sustain the issue. By further agreement of the parties this case is submitted to the court instead of a jury for decision upon the evidence and facts herein before stated and provided for in this agreement and none other."

Several orders of the court entered in the case show the