Rich v. Braxton

delivered the opinion of the court.

' The appellees, who were the plaintiffs below, are the children and heirs at law of Allen T. Caperton, who, the bill alleged, was seized and possessed at the time of his death of an estate in fee in various tracts of land in West Yirginia which are fully described in the pleadings.

The■ appellants, who were defendants below, assert owner-' ship of the same lands.

The object of the present suit — which was removed from one of the courts of West Yirginia — was to obtain a decree annulling the deeds under which the defendants claim title, and thereby remove the cloud created by them on the title of the plaintiffs. By the final decree those deeds were set aside as inoperative, fraudulent, and void, and as clouds upon the plaintiffs’ title, “so far as they and each of them overlap and include any of the lands of the said plaintiffs as laid down and shown upon the map filed with the papers of this cause, marked ‘ Map of the lands in the suit of Caperton’s Heirs v. Rich and others, Decree Map.’ ”

1. A patent from the Commonwealth of Virginia, dated March 25th, 1795, to Robert Morris for 153,900 acres of land in the county of Greenbrier; a deed from Robert Morris and wife, dated March 13th, 1797, conveying to William Crammond several tracts, including the above tract of 153,900 acres; a deed from William Crammond and wife, dated October 28th, 1814, to Thomas Astley, covering all the above lands conveyed by Morris and wife to William Crammond; a deed dated December 10th, 1840, to Henry Crammond from Littleton Kirkpatrick and wife, (the latter being the only heir at law of Thomas’ Astley,) and .Sarah Astley, the widow of Thomas Astley, embracing the lands covered by the deeds from Morris and wife and William Crammond; a deed by Henry Crammond to John Williams, dated December 21st, 1842, .conveying to the latter the tract of 153,900 acres.

2. A deed to Oapierton by John Williams and wife, dated February 21st, 1850, conveying to the grantee 77,104 acres of the tract of 153,900 acres named in the Morris patent. Caper-ton sold and conveyed a part of the latíd embraced by this deed, so that, at his death, he claimed to own only 41,171£ acres of the above 77,104 acres.

3. A patent from the Commonwealth of Virginia to Abner Cloud, assignee of Lewis Franklin, dated March 10th, 1790, for 5000 acres in Harrison County, on the waters of Gauley River. By a change in the lines of counties this tract was included in the county of Nicholas. It appears from the official records, that these 5000 acres were forfeited to that Commonwealth in' 1842 for the failure of the owner to enter them upon the books of the commissioner, and for non-paymfent of taxes. That fact being regularly reported by the commissioners of delinquent and forfeited lands to the Nicholas County circuit superior court, they were ordered by that court to be sold in the manner and upon the terms prescribed by law; and they were sold, John Williams becoming the purchaser. The sale having been confirmed, a deed was made to Williams June 20th, 1843, by the

4. A patent from the Commonwealth of Virginia to A. C. and D. B. Layne, dated September 1st, 1851, for' 2738 acres in what is now Webster County, West Virginia. A. C. Layne and wife, by deed of March 18th, 1856, conveyed their interest to Douglas B. Layne, who, with his w'ife, by deed of April 12th, 1859, conveyed to Caperton.

5. Patents from the Commonwealth of Virginia to Austin Hollister, one dated November 1st, 1855, for 9330 acres, and the other dated February 1st, 1858, for 5938 acres, both tracts being in Randolph County. By deed of February 12th, 1859, Hollister and wife conveyed both of these tracts to Caperton.

It appears that in 1881 the children and heirs at law of Caperton— he having died in July, 1876 — presented to the circuit court of Webster County, West Virginia, a petition asking that they be allowed to redeem from forfeiture and sale the aboye tracts of 9330, 5938, 5000, and 2738 acres, as well as a tract of 500 acres, all assessed in the name of Caperton. The petition stated that there were no persons in condition to take the benefit of the forfeiture of those lands or any part of them under the provisions of section three of article thirteen of the constitutionof the State, and that they were entitled to redeem the- same, in the manner provided by the thirteenth section of the act of the legislature of West Virginia, (Acts W. Va. 1872-3, p. 455, c. 134,) providing for the sale of escheated, forfeited, and unappropriated lands for the benefit of the school fund.

The section of Article XIII of the constitution of West Virginia to which reference was made in that petition is in these words:

“ 3. All title to lands in this State heretofore forfeited, or treated as forfeited, waste, and unappropriated, or' escheated to the State of Virginia, or this State, or purchased by either of said States at sales made for the non-payment of taxes and become irredeemable, or hereafter forfeited, or treated as for

The statute referred to was that of November ‘18, 1873, entitled “An act to provide for the sale of escheated, forfeited, and unappropriated lands for the benefit of the school fund.”

By that statute the former owner of lands, the title to which was in the State by forfeiture or purchase, and which were ordered to be sold by the proper circuit court for the benefit of the school fund, was allowed, upon proof of title superior to that asserted by any other claimant, to receive the excess over the taxes charged and chargeable thereon,

The commissioner of school lands, whose duty it was to ascertain the quantity of land in his county subject to sale under the above statute, (§§ 1, 2,) reported to the proper circuit court that the taxes and interest charged and chargeable against the tracts of. 9330, 5938, 5000, and 2738 acres claimed by the heirs at law of Caperton, amounted to $1785.82; and against the tract of 500 acres, the sum of $18.69. The prayer of the petition was granted. The final order of the court contained these provisions: “ The petitioners having exhibited to the court their title papers, showing that' they have title to each of the five several tracts of land mentioned in their-petition and amended petition aforesaid, regularly derived from the Commonwealth of Yirginia, and the court, being of opinion that the petitioners have a good and valid title to said lands, and it not appearing that there is any person in condition to take the benefit of the forfeiture thereof, doth consent and order that petitioners may redeem said lands from forfeiture. And thereupon petitioners, with the consent of the court, paid into court, to the hands of the said Duffy, commissioner of school lands, $1804.51, being the amount of taxes and interest due on said lands at this date, and $4.50 costs of this proceeding. It is therefore adjudged, ordered, and decreed that said several tracts of 2738, 5000, 9330, 5938, and 500 acres of land have been redeemed, and that they be and stand released from said forfeiture cmd exonerated and released from all other former taxes and damages, if any such there be,

In the circuit court of Nicholas County there were similar proceedings in 1881 for the redemption from forfeiture and sale for non-payment of taxes of the tract of 41,171^ acres and other tracts standing in the name of Caperton. The back taxes, with interest, charged and chargeable upon those lands, wbre adjudged to be $3100.87. That amount was paid by the heirs of Caperton, and it was adjudged that these tracts “ be arid are released from such forfeiture and exonerated and released from all other former taxes and damages, if any such there be, and no. sale thereof shall be made on account thereof, and the said several tracts of land are each hereby reinstated in all respects as if no such forfeiture had occurred, and the assessor of Nicholas County is ordered and directed to enter said lands in separate tracts on the land books for said county. for the year 1881 in.the name of Allen T. Caperton!s estate and charge the same with taxes commencing with, the year 1881, all prior tames, including the yearn 1880, homing been paid as aforesaid.”

The court below, in the present case, after observing that Capérton’s title was regularly deducible from the Commonwealth of Yirginia, and that all the lands in controversy were duly entered in his name on the land books of the proper counties, and that the taxes charged thereon were all paid by him up to and including the year 1873, thus correctly summarized the plaintiffs’ proofs as to possession: “ As to the possession of these lands by said Caperton, the evidence shows that as early as the month of April, 1865, one Solomon Taylor was in the actual possession and occupation of a part of the lands then owned by Caperton, as his tenant, and claiming his possession and occupation thereof as the tenant of Caper-ton. The lands so possessed and occupied by him were a part if the said Bobert Morris tract purchased by Caperton, as ibove referred to. His improvements thereon consisted of a

In considering the question of the possession of the various tracts of land claimed by the plaintiffs, as heirs at law. of Caperton, the court below proceeded upon the ground that the surveys being coterminous all the tracts should be regarded as one tract. “. Upon the question of adversary possession,” the Supreme Court of Appeals, of Virginia said in Overton's Heirs v. Davisson, 1 Gratt. 211 , 224, “ it is immaterial whether the land in controversy.be embraced by one, or'several coterminous grants of the older patentee; or one or several coterminous grants of the younger patentee: in either case, the lands granted to the same person by several patents, must be regarded as forming one entire tract.” The same principle was announced in Ewing v. Burnet, 11 Pet. 41 , 53, and in Simmons Creek Coal Co. v. Doran, 142 U. S. 417 , 443.

This is substantially the case made by the plaintiffs. It would seem to be sufficient to sustain their claim to ownership of these lands, unless it has been overthrown by the evidence adduced by the defendants.

We proceed to examiné the case made by the defendants, and the grounds- upon which they assail the title of the plaintiffs.' Certain tax deeds, under which -the defendants claim, embrace the lands in dispute; The circumstances under which-they were executed will now be stated.

John B. Shreve, a surveyor by occupation, had in his possession what he claimed was the original record of numerous. surveys of lands in Eandolph County, Virginia, made prior to the beginning of the present century. These lands were afterwards embraced in the present counties of Nicholas and Webster, West Virginia. He was well ¿cquainted with the lines and corners of these old, and-, as the evidence clearly

In execution of this plan, but without any authority whatever in the premises from any one interested in the lands, Shreve, in 1868, addressed to the assessor of Webster County, West Virginia, a- communication describing various tracts of land, aggregating nearly 700,000 acres, and directing him to put them all on the commissioner’s books for purposes of taxation. Among those tracts he named the following :

1. “ One tract in the name of William McClary, containing 100,000 acres,” lying “ on Gauley and Williams Eivers at the lower end of the county,” Hally township. It does' not appear that any one by the name of McClary ever had title to a tract of 100,000 acres by patent or otherwise, or that any such tract was ever surveyed by or for any person of that name. It does appear that a patent, dated January 21st, 1796, which was subsequent to the date of the Morris patent, was issued to Williaip' McCreery.

2. “ One tract in the name of George Messingburg, containing 12,500 acres ... on Gauley, at the upper end of the county, Fort Lick township.” The survey for this land was made in 1795, but no patent ever issued to Messingburg or to any assignee.- In other documents the name of this person is given as Messingbird.

3.. “ Fifty-three tracts in the name of Henry Banks, containing 58,500 acres . . ., laid off in 53 lots, the most lies east ,of Addison, Elk and Gauley, Fort Lick township.” In 1787 Banks made fifty-three surveys, aggregating 58,500 acres of land, of which only forty-three were filed for patents. Of the surveys so filed, patents were issued for only nine, each covering one, thousand acres. But those patents do not embrace any of the- lands here in dispute;

To the paper sent by Shreve to the assessor was appended this memorandum: “ Please place the following tracts on the books and them men will call on you and settle your fees liberally as my son told you. These lands in Webster County is covered sometimes three-deep. If the owners choose to put them on the books at five cents per acre it will amount to thousands of dollars to the county as well as the State. As my son told you, you will be attended to. J. B. Shreve. P. S. — Leave with Mr. Sawyer what you have put them down at, so that I can write to those men what it is, etc. The rest lives in Pennsylvania.”

“ Those men,” referred to in this postscript, were doubtless the persons residing Out of the State, with whom Shreve made the first arrangement for putting on the assessor’s books lands to be sold and which would be purchased by them at tax sales. But the arrangement with those persons seems to have been abandoned by them for some reason, and a different one was made with others. The latter arrangement is fully disclosed in the testimony, particularly in the depositions of Albert Owen and Benjamin Kich.

• Albert Owen describes himself as a resident of Pennsylvania and a gentleman of leisure, who sometimes bought and sold real estate. It appears from his deposition that he had heard, in casual conversations, of a sale to be made in West Virginia in the autumn of 1869 of large bodies of land for delinquent taxes. And in May of that year he went to West Virginia and met John B. Shreve at the latter’s residence in ■Upshur County. Shreve exhibited to him a.large folio book of land surveys made between the years 1780 and 1795, and purporting to have been the work of Edward Jackson, a county surveyor, a,nd his assistants or deputies. From their antiquated appearance they seemed to be the original book of surveys. Shreve claimed to have been shown by Jackson and !his successors the original corners and landmarks of most of the surveys. The result of the meeting between Owen and Shreve was a written agreement by which the latter' under

The circumstances under which the appellant Rich became connected with these transactions were thus detailed by himself in a suit brought against him by Shreve: “I am the defendant in the above stated suit and reside at Unionville,. Center County and State of Pennsylvania. I first met John' B. Shreve, the plaintiff in the above stated cause, on September — , 1869, at Buckhannon, W. Ya. Albert Owen, of Phillips-burg, Perina., introduced me to him. Owen had met Shreve some months before, and, as they both said, had been examining and surveying lands to be sold that fall for taxes. Shreve represented to me that he knew the beginning .corners and lines of several large tracts of land that were to be sold in Webster County, West Yirginia, that month; that he had the original plats and field-notes of Edward Jackson, the surveyor who made these survéys; that these corners and lines had been shown to him by Henry Jackson, he said, second surveyor of Randolph County, who was along with Edward Jackson when they were made. • Shreve .said, that Henry Jackson was the second surveyor of Randolph County, and that he, Shreve, was deputy surveyor under him, and that he had nearly all of Henry Jackson’s field-notes, and that he was. the only man living that could show these corners and lines to identify these surveys. He also said that he had had the titles to these several tracts examined by one of the best land lawyers in the State (did not give his name); that he would show these corners and lines of these lands to the county sur

On the 24th of September, 1869, there was a sale at the epurt-' house in Webster County of the lands that Shreve had, for his individual purposes, caused to be put - on the assessor’s books for taxes for the year 1868. The tract of 58,500 acres, in the name of Henry Banks, was purchased by Owen, Rich, and G. P.'Shreve (the latter a son of J.

Were the tax sales of September 24th, 1869, of any validity whatever ? The claims of the several defendants in this suit depend principally on the answer to that question.

The Code of Virginia in force prior to the creation of the State of West Virginia provided:

“ § 24. When any real estate is' offered for sale [for taxes] as aforesaid, by the sheriff or collector, and no person present bids the amount to be satisfied from the sale thereof, the sheriff or collector shall purchase the same on behalf of the Commonwealth for the taxes thereon, and the interest on the same, and its proportion of the expense of advertising. A list of the real estate'so purchased by the Commonwealth shall be made out by the sheriff or collector. After it shall have been verified by him on oath, the court of his county or corporation shall direct its clerk to make out a copy thereof, and deliver it to the commissioner of the revenue, and shall cause the original list to be certified to the first auditor.....§ 25. The first auditor shall cause all the lists received in his office, under the preceding section, to be recorded in a well-bound book; and all the real estate mentioned in such lists shall, without any deed for the purpose, stand vested in the Commonwealth. § 26. The previous owner of any real estate so purchased for the Commonwealth, his heirs or assigns, or any person, having a right to charge such real estate for a debt, may, until a further sale

By an act of the general assembly of Yirginia, passed February 3d, 1863, it was provided, among other 'things, that all. property, real, personal, and mixed, bwned by or’ appertaining to that Commonwealth, and being within the boundaries of the then proposed State of West Virginia, when the same became one of the United States, should pass to and become the property of West Yirginia, without any other alignment, conveyance, transfer, or delivery than was contained in that act. Acts of Va. 1862-3, p. 64, 6. 68.

The constitution of West Yirginia, adopted in 1863, declared that “ such parts of the common law and of the laws of the State of Yirginia as are in force within the boundaries, of the State of West Yirginia, when this constitution goes into operation, and are nqt repugnant thereto, shall be and continue the law of this State pntil altered or repealed by the legislature.” Art. XI, § 8. • The effect of this constitutional provision was to make the above sections of the Code in Yirginia part of the law of West Yirginia from the time of,.the admission of the latter State into the Union.

The constitution of West Yirginia of 1863 directed provision, to be made by the legislature for the sale of all lands in tha|; State, theretofore forfeited to Yirginia for the non-payment of the taxes charged thereon for the year 1831, or for any year previous thereto, or for the failure of the former owners to have the same entered on the land books of the proper county

The fifth section of the same article provided: “ § 5. AH lands in this State heretofore vested in the State of Virginia by ■ forfeiture, or by purchase at the sheriffs’ sales for delinquent taxes, and not released or exonerated • by the' laws thereof, or by the operation of the preceding section, may be redeemed by' the former owners, by .payment to this State of the amount of taxes and damages due thereon at the time of such redemption, Svithin five years from the day this constitution goes into operation; and all such lands not so released, exonerated,' or redeemed shall be treated as forfeited, and proceeded against and sold as provided in the third section of this article.”

In execution of those provisions the legislature of .West Virginia, on the 2d day of March, 1865, passed an act. containing, among others, these provisions:

“Seo. 2. A11 lands in this State heretofore vested in the State of Virginia by forfeiture, or by .purchase at the sheriffs’ sales for delinquent taxes and not released or exonerated by the laws therdofj or by the operation of the seventh section of the ninth article of the constitution of this State, may be redeemed by the former owners by payment into the treasury of this State, upon the certificate of the auditor, of the amount !of taxes and damages due thereon at the time of such redemption, on or before the twentieth day of June, eighteen hundred and sixty-eight.

. From these statutory and constitutional provisions it appears: That by the law of Yirginia, in force prior to the creation of the State of West Yirginia, it'was the duty of the sheriff or collector, when lands were sold for taxes, to purchase them on behalf of' the-Commonwealth for the amount of taxes, Unless some person bid that amount; that any lands so purchased and certified to the first auditor vested in the Commonwealth without any deed for that purpose; that such lands could -have been redeemed ih the mode prescribed by the statute; that whatever title Yirginia had to lands so purchased and not redeemed, and which were within the territory now constituting West Yirginia, passed to the latter State upon its admission into the Union; arid that the time, given by the constitution and laws of West Yirginia to redeem lands that had become the property of Yirginia by forfeiture or by purchase at sheriffs’ sale for delinquent -taxes, and which had not beén released.or exonerated in conformity to law, expired June 20th, 1868.

The result is that the sale of the tract of 100,000 acres, put on the assessor’s books in the name of William McClary, for the taxes of 1868, must be held to have been unauthorized by law. And such must be the result even if -it be assumed that it was the same tract as that patented by Yirginia to William McOreery on the 21st of January, 1796. . From the records in the office of the auditor of public accounts of Yirginia it appears that the tract of 100,000 acres in the name of William McCreery was charged on the larid books of Nicholas County with taxes for the years 1840 to 1850 inclusive, and was returned delinquent for all of chose years in the aggregate sum of $297.50,-for which it was sold and purchased by the Commonwealth of Yirginia in the year 1850. It had not been

The title was in Virginia from and after the sale in 1850 for taxes, and that title passed to West Virginia on the admission of the latter State into the Union. The former owner was given, by the constitution of West Virginia, .five years, from the day that instrument went into operation to redeem by paying the taxes and damages due the State. That time, as just stated, expired June 20th, 1868. There was no redemption. It was, therefore; beyond the authority of the assessor of Webster County to put the McClary or McCreery tract on the assessor’s books as chargeable with taxes for the year 1868. It was. then the property of the State of West Virginia, as between the State and all who claimed under the McCreery patent, and as such could neither be assessed lior sold as for taxes due the State. Laws of West Virginia, 1863, p. 161, § 36, Act of December 3, 1863. The assessment and sale were consequently void, and no rights passed to the purchasers.

Some effort was made to protect the claim of Rich and Conrow to own the McClary or McCreery tract of 100,000 acres in virtue of a sale made in 1871 for the taxes of Í870' under- an alleged assessment upon this tract as the property of one “Viscount Clifford de Fleury.” The deed rriade by the recorder to. Rich and Conrow, dated October 3d, 1872, recited among other things that “ the said tract of land was surveyed for Colonel William McClary on the 23d of April, 1795, the same having since been conveyed, as appears by sundry deeds, and conveyances now upon record in said county of Webster,, showing that the same land was held in fee simple by Viscount Clifford de Fleury, but was sold on the 24th of September, 1869, in the name of William McClary, for the- nonpayment of taxes thereon for the year 1868 and previous years, and was purchased by Benjamin Rich, and the same conveyed to said.Rich and Thornton Conrow by deed bearing date September 28th, 1870.” It is a singular circumstance that not one of the “ sundry deeds and conveyances ” here referred to was produced in evidence. The proof tends strongly to’show that the sale of 1871 for the taxes of 1870

Nor did any title pass by the purchase at the tax sale of September 24th, 1869, of the Messingbird or Messingburg tract of 12,500 acres. That tract, it is true, appeared to have been surveyed in 1795, but the survey was never filed in the land office of Virginia, and no patent was ever issued. The Welch tract was also surveyed in the same year, but no patent, based on that survey, appears to have been issued. The placing of these tracts, upon the books of Webster County, as the lands of private persons, claiming under the Messingbird and Welch surveys, but having no title to the lands, was, therefore, unau

In reference to the claim of some of the defendants to own a portion of the Welch tract, in virtue of a tax sale in 1875 of 63,734 acres, in the name of Francis Hyland, the court below found from the evidence that no such survey was ever filed in the land office of Virginia; that no grant was ever issued thereon; and that no such tract was ever charged with taxes on the land'books of either State. We perceive no reason to doubt the accuracy of this finding. From such a sale no title could be derived.

' But the defendants insist that, independently of any question involving their respective claims to the lands in dispute, the plaintiffs themselves have no title that will authorize any decree in their behalf. We have seen that in 1875,. in the lifetime of Allen T. Caperton, the lands in dispute, having been returned delinquent for the non-payment of the taxes due thereon, were sold by the proper officer, and purchased by the State of West Virginia, and the title thereto, without •deed and by virtue of the statute, vested at once in the State. There was no formal redemption by Caperton, who died within less than a'yeaf. after such sale ; and,it is insisted that his heirs could not redeem, under the laws of West Virginia, at least after’the expiration of one year from the purchase by the State. In that view, it is contended that the proceedings hereinbefore referred to, and which were instituted in 1-881. in the circuit Courts of Webster and Nicholas Counties by the heirs of Caperton, were ineffectual to restore title; in which case his heirs could not claim the lands, nor invoke.the aid of a court of equity, whatever might be the invalidity of the claims asserted by the defendants. Let us see whether this contention- is justified by any reasonable interpretation of the •statutes of West Virginia.

“Section 4. All lands in this State, waste and unappropriated, or heretofore or hereafter for any cause forfeited, or treated as forfeited, or escheated to the State of Virginia, or this State, or purchased by either and become irredeemable, not redeemed, released, transferred, or otherwise disposed of, the title whereto shall remain- in this State till such sale as is hereinafter mentioned be made, shall, by. proceedings in the Circuit Court of the county in which lands or part thereof are situated, be sold to the highest bidder.

“ Section 5. The former owner of any such land shall be entitled to receive the excess of the sum for which the land may be sold over the taxes charged or chargeable thereon, or which, if the land had not been forfeited, would have been charged or chargeable thereon, since the formation of this State, with interest at the rate of twelve per centum per annum, and the costs of the proceedings, if his claim be filed in the Circuit Court that decrees the sale, within two years thereafter.”

In order -to carry out these constitutional provisions, the legislature of West Virginia passed the act of April 9th, 1873, c. 117, entitled “ An act .to amend and reenact chapter thirty-one of the Code of West Virginia, concerning the sale of real estate for taxes; forfeiture for non-payment and non-assessment of taxes, and the transfer of title vested in the State.” Acts W. Va. 1872-3, p. 308.

This act provides for the sale of lands for taxes, and gives “ the owner of any real estate so sold, Ms heirs or assigns, or any person having a right to charge such real estate for a debt,” the right to “ redeem the same by paying to the purchaser, his heirs or assigns, within one year from the sale thereof, the. amount specified in the receipt mentioned in the tenth section, [being the receipt given by the sheriff or collector to the purchaser,] and such additional taxes thereon as may have been paid by the purchaser, his heirs or assigns, with interest on said purchase money and taxes at the rate of twelve per centum per annum from the time the same may have been so paid.” . § 15. Infants, married women, insane per

In the same year, November 18th, 18Y3, was passed the act heretofore referred to, providing for the sale of escheated, forfeited, and unappropriated lands for the benefit' of the school fund. That act, which amended and reenacted chapter 105 of the Code of West Virginia, provided :

“ Sec. 1. All waste and unappropriated lands within this State, and all lands in this State heretofore .vested in the State of Virginia by forfeiture or purchase at the sheriff’s or col* lector’s sale for delinquent taxes and not released and exonerated or redeemed within ’one year according to law; all lands

It was made the duty of circuit courts to appoint for each county of their respective circuits a commissioner, charged with the duty of selling, under the direction of the court, lands of the character named in the statute.

The act further provided: “ Seo. 12. The former owner of .any such land, shall be entitled to recover the excess of the sum for which the land may be sold over the taxes charged and chargeable thereon, or which if the land had not been forfeited, would have been charged or chargeable thereon, since the formation of this State, with interest at the rate of twelve per centum per annum, and the costs of the proceedings; if his claim be filed in the circuit court that decrees'the sale, .within two years thereafter, as provided in the next section. Sec. 13. Any such owner may within the time aforesaid, file his petition in the said circuit court stating his title to such lands, accompanied with the evidences of his title and upon such.full .and satisfactory proof thaUat the time the title to said lands vested in the State, he had a good and valid title thereto, legal or equitable, superior to any other claimant thereof; Such court shall order the excess mentioned in the next preceding section to be paid to him; and upon a properly certified "copy of such order being presented to the auditor, he shall draw his warrant on the treasury in favor of such owner or his personal representative for such excess. At any time before tUe sale-of any such land as hereinbefore mentioned, such former

It will be observed, from an examination of the acts of April 9th, 1873, and November 16th, 1873 : That in the case of real estate sold for taxes, of which the State became the purchaser, the first-named act gives “ the owner of any real estate ... his heirs or assigns or any person having a right to charge such real estate for a debt,” the right to redeem within one year from the sale; and that in the case of proceedings instituted by the school commissioner in the circuit court to sell, for the benefit of the school fund, land of which ■the State had become the purchaser, the last act gives “ the former owner of any such land” the right to recover the excess for which it may be sold “ over the taxes charged and chargeable thereon,” if his.claim be asserted, in such court, by petition filed within two years after any sale under its orders, and accompanied by proof of title.' But the latter act also gives to “such former owner or any creditor of such former owner of such land ” the right to redeem “ at any time before the sale ” that may be ordered by the circuit court for the benefit of the school fund.

Now the point made by the defendants is that although Oaperton, if he had lived, could have redeemed at any time before such sale, his heirs could not redeem at all under the act of November 16th, 1873, because that act makes no express reservation for their benefit, and does not, in terms, allow any one except, the former owner, or some creditor of his having a lien on the land, to take- advantage of its provisions.

In the absence of any direct decision of the state court upon this subject, we are not willing to construe the statutes in question as cutting off the right of the heirs of the former owner — the latter dying before the expiration of the time (one year) allowed for redemption by the act of April 9th, 1873 — to secure the release of his lands from all former taxes, and thereby to prevent such lands from being sold for the benefit of the school fund, as prescribed by the act of November 16th, 1873. It is quite true that upon the sale on the 26th of September, 1875, of the lands here in question (standing on tfie land records in the name of Caperton) the title, by virtue of the' statute, passed to the State upon its purchase of them, and that title became indefeasible upon the expiration of one year without redemption. But it is clear, from the express wdrds. '.of section 33 of the act of April 9th, 1873, that the hews of Caperton, he having died before the expiration of one year, could withm that year have redeemed in the mode prescribed-by that act. If there was no redemption, within the time named, the title remained in the State uritil the lands were sold under proceedings instituted in the proper circuit court of the county by the school commissioner. Section 13 of the act of November 16th, 1873, was in the direction of liberality and forbearance towards those whose lands had been taken for taxes. And in the condition of the land titles of the State, there was every reason why the State should enable those who, but for the sale at which it purchased, would, under the law, be the owners of the lands, to have them released from “ all former taxes,” provided they moved in the matter before the lands were actually sold by direction.of the Circuit Court in the proceedings instituted .by the commissioner of school lands.

•The words “former owner” in section 13 of the last act embrace those who, in law, would have owned the lands, upon

Much stress is placed by the defendants upon the reservations made in the acts of. April 9th, 1873, and November 16th, 1873, of the rights previously vested under section 3 of Article XIII of -the state constitution. They claim to have had rights of that character at the time these lands' were forfeited for the non-payment of taxes by Caperton, and that those rights became complete and unassailable before the redemption by Caperton’s heirs in 1881. By. that section of the state constitution, .hereinbefore set out, the title to lands of the 'character described which were not redeemed, released or otherwise disposed of, and which -was vested in and remained in the State, was transferred to and vested —•

2. If there were no such person, then. to any person (other than those for whose default the same may have been forfeited or returned delinquent, their heirs or devisees) for so much of said land as such person shall have .title to, regularly derived, mediately or immediately, from or under a grant from the Commonwealth .of Virginia, which, but for the title forfeited, would be valid, and who, or thosé under whom he claims, has or shall have paid all state taxes charged or chargeable thereon for five successive years after the year 1865, or from the date of the grant, if it was issued after that year; or,

3. If there were no such person as aforesaid, then to any person (other than those for whose default the same may have been forfeited or returned delinquent, their heirs or devisees) for so much of said land as such person shall have had claim to and actual, continuous possession of, under color of title, for any five successive years after the year 1865, and have paid all state taxes charged or chargeable thereon for said period.

The defendants’ case cannot be deemed to belong to the first or third of these classes, for the reason, if there were no other, that the evidence fails to show actual, continuous possession, for. ten years, or for five successive years after 1865, under color or claim of title. "We concur with the learned District Judge in holding that the defendants “have failed by any evidence to prove the possession of this land, before the suit was brought, for five consecutive years. The possession attempted to be set up was of such a transitory character as to be utterly unreliable. It was not the actual, continuous possession for five consecutive years contemplated by the constitution.” The evidence of the principal witnesses for the defendants was, as the court below well said, “lacking in all of those

Nor can the defendants bring themselves within the second of the above classes described in section three of article. thirteen of the state constitution. In cases of that class possession is not required; but title, regularly derived, was required. Assuming the correctness of what has been said in reference to the title asserted by the defendants, and which need not be here repeated, it is idle1 to say that they had title to any part of the lands claimed by the plaintiff, “ regularly derived,” mediately or immediately, from or under a grant either from Yirginia or from West Virginia.

Upon the question of the jurisdiction or a court of equity to give the relief sought by the bill, but little need to be said.

In Simpson v. Edmiston, 23 W. Va. 675 , 678, the court said that it had been repeatedly held that a court of equity has jurisdiction to set aside an illegal tax deed — citing Forqueran v. Donnally, 7 W. Va. 114 ; Jones v. Dils, 18 W. Va. 759 ; and Orr v. Wiley, 19 W. Va. 150 . And in Danser v. Johnson, 25 W. Va. 380 , 387: “It is fully settled in this State that a court of equity has 'jurisdiction to set aside a void tax deed.” These authorities make it clear that if this case had remained in the state court no objection could have been made to the form of the suit. But as the jurisdiction of the courts of the United States, sitting in equity, cannot be controlled by the laws of the. States or the decisions of the state courts — except that the courts of the United States, sitting in equity, may enforce new rights of an equitable nature created by such laws, Clark v. Smith, 13 Pet. 195 ; Holland v. Challen, 110 U. S. 15 — it is proper to say that, according to settled principles, the plaintiffs were entitled to invoke the aid of a court of equity.

The principal ground upon which the contrary view is rested by the appellants is, that the bill assails the tax deeds under which they claim as fraudulent, void, and inoperative. And to support this view several adjudged cases are cited, some of which hold that where the title is merely legal, and where the validity of one title or the invalidity of another

These authorities do not control the present question, re must be remembered that “it is not enough that there is a remedy at law; it must be plain and adequate, or, in other words, as practical and efficient to the ends of justice and its prompt administration as the remedy in equity.” Boyce v. Grundy, 3 Pet. 210 , 215; Drexel v. Berney, 122 U. S. 241 , 252; Allen v. Hanks, 136 U. S. 300 , 311. And the applicability of the rule depends upon the circumstances of each case. Watson v. Sutherland, 5 Wall. 74 , 79. In the case now before us it cannot be said that the invalidity of the deeds which the plaintiffs seek to have cancelled appears on their face. It is not clear that their invalidity can be placed beyond question or doubt, without evidence dehors those deeds.

Besides, by the laws of West Yirginia the tax deeds under which the defendants claim are prima facie evidence against the owner or owners, legal or equitable, of the real, estate at the time it was sold, his or their heirs or assigns, and all other persons who might have redeemed the same within the time prescribed by law, and conclusive evidence against all other persons, that the material facts recited in them are true. Code

The decree is

Affirmed.