TABLE OF STATUTES, &c., CITED. Code, ch. 10, sec. 1. Acts 1872-3, ch. 28. Limitation of Suits, Appeals, &c. 708 228 369 164, 462 707 644 498 223 124 52 ch. 66, sec. 12. ch. 80, sec. 4. ch. 85, sec. 20. 236 513 834, 835 ch. 209, sec. 9. 22 707 556 462 165 164, 200, 209, 216 145 51, 357 Dower.... Property and Rights of Married Women.. 376 ch. 89. Unlawful Entry or Detainer. 491 Code, ch. 132, sec. 6. Personal Representative of a Trustee.. ch. 133, sec. 10. Injunction-Bond..... 8 52, 62 ch. 134, sec. 3. Errors insufficient in an Appellate Court... 51 ch. 139, sec. 7. Judgment-Liens.. 475 Rules of Supreme Court of Appeals. Rule XIII. Original Juris diction.. 618 Submitted January 20, 1888.-Decided February 18, 1888. 1. MORTGAGE-TAXES-TAX-TITLE-MORTGAGEOR AND MORTGAGEE TAX-DEED-TAX-SALE. Where a mortgagee is not in possession of the lands conveyed by the mortgage deed, nor bound by any covenant, agreement or promise to pay the taxes on the property, there being no trust-relation existing between the mortgageor and mortgagee, the mortgagee may purchase the lands so mortgaged, and acquire a good title thereto under his tax-deed; and if, under such circumstances, the mortgagee is dead, his executor may purchase the land at a taxsale, and acquire title under a tax-deed. (p. 6.) 2. MORTGAGE-TAX-TITLE-TAX-SALE-MORTGAGEOR AND MORTGAGEE. But where it appears, that shortly after the mortgage was recorded the land was charged on the assessor's books in the name of the mortgagee, and not in the name of the mortgageor, and so *The other decisions announced at this term are published in Vol. XXX. remained for eight years, and not returned delinquent, so far as shown by the record, and then, after litigation had arisen with reference to the land between the mortgagee and the party entitled to the equity of redemption, the executor of the mortgagee suffered the land to be returned delinquent and purchased it at a tax-sale, the law will from these circumstances imply a promise from the mortgagee to the mortgageor to pay the taxes, and the purchaser being the executor of the mortgagee can not under such circumstances acquire title to the land, as it would be a fraud on the rights of the mortgageor to permit it. (p. 7.) 3. PARTIES-JOINDER OF PARTIES NOT IN INTEREST-EFFECT. The joinder of an improper plaintiff, having no interest in the suit, will not affect the right of the real party in interest to maintain it. (p. 8.) W. G. Bennett for appellant. F. A. Seborn and W. P. Hubbard for appellee. JOHNSON, PRESIDENT: In 1883, Charles Bayne, trustee of Sarah A. Beckwith, and Sarah A. Beckwith, filed their bill in the Circuit Court of Upshur county, against F. A. Seborn, executor of the will of William Crabtree, and F. A. Seborn in his own right, and C. F. Ridgway, administrator of Abram C. Howard, deceased, to set aside and annul a certain tax-deed. The bill alleges that on the 26th day of July, 1860, John S. Flesher conveyed to Charles Bayne, as trustee, for the sole and separate use of plaintiff, Sarah A. Beckwith, a tract of over 1,420 acres of land in said county; that said tract of land was duly entered on the land-books of said county in the name of Charles Bayne, trustee for Sarah A. Beckwith; that on the 20th day of February, 1865, one A. C. Howard, representing himself as trustee in the place of the said Charles Bayne, without the knowledge and consent of the plaintiffs, and without in fact any authority to act as said trustee, borrowed from said William Crabtree $2,750, and the said Howard, to secure to said Crabtree the payment of the said sum, did, on the fifth day of February, 1870, as trustee, without the knowledge or consent of the plaintiff, Sarah A. Beckwith, execute to said Crabtree a mortgage on said tract of land, and signed and sealed said mortgage, "A. C. Howard, as trustee of Sarah A. Beckwith;" that said mortgage was admitted to record in the said county on the 5th day of March, 1870; that after the execution of said mortgage, and after the same had been admitted to record in said county, the said William Crabtree caused the said land to be dropped from the land-books of said county in the name of said Bayne, trustee for plaintiff, Sarah, and placed on said books, in the name of said William Crabtree, and that this was done without the knowledge or consent of the plaintiffs, or either of them; that said land so remained on the books until 1874; that said Crabtree died in 1873, having made his last will and testament, wherein he appointed the defendant, F. A. Seborn, executor; that said will was admitted to probate in said county of Upshur on the 10th day of February, 1874, at which time said Seborn qualified as executor; that said land remained on the land-books, charged for taxes in the name of said William Crabtree, until 1878, at which time, and for the taxes of 1878, it was returned delinquent in the name of said Crabtree, and on the 13th day of October, 1879, was sold by the sheriff of Upshur county for the taxes of 1878, at which sale the same was purchased by D. D. T. Farnsworth, S. B. Philips, and C. E. Mylins; that said Seborn, while he was acting as such executor, took from said purchasers an assignment of such purchase in his own name and for his own benefit, and on the 14th day of December, 1880, obtained from the clerk of the County Court of Upshur county a deed for said land; that on the 9th of September, 1880, the plaintiff, Sarah A. Beckwith, redeemed said land in the said clerk's office; that said Seborn was not then, nor is now, a resident of this State, and could not be found in the county. a copy of the certificate of redemption being filed with the bill; that said Howard has departed this life, and the defendant, Ridgway, was appointed his administrator; that all the acts of said Howard as pretended trustee or otherwise in relation to said land are fraudulent and void, and are a cloud on the title of the plaintiffs' land; that C. A. Howard was not appointed trustee until the 18th day of May, 1865, as appears by a copy (Exhibit F) of the order appointing him, whereas the pretended borrowing of said money as "trustee" was on the 20th day of February, 1865. The prayer of the bill is that said tax deed be declared void, and for general relief. |