
    Hoge v. Currin.
    July Term, 1846,
    Lewisburg.
    (Absent Brooke, J.)
    1. Laud Titles — Appointment of Commissioners — Statute — Directory.—Tbe provision in the act of March 30th, 1837, “to amend and explain the laws concerning western land titles,” which directed that commissioners of delinquent lands should be appointed in each county at the next fall term, is merely directory; and such commissioners may be appointed at a subsequent term; and if a new county is afterwards created, such commissioner may be appointed therein.
    2. Sale of Delinquent Lands — Title—Caveat Emptor.— In the sales of land under the tax laws, the Commonwealth does not warrant either the title or the description of the lands sold: but the rule caveat emptor applies to the purchasers at such sales.
    This was a motion by Currin, the commissioner of delinquent and forfeited lands for the county of Pulaski, for award of execution upon a bond executed by Daniel H. Hoge and James Hoge, for the purchase money of a tract of land sold by the commissioner as forfeited land.
    By the act of the 30th of March 1837, Sessions Acts 1836-7, the Judges of the Superior Courts of the counties *lying west of the Blue Ridge mountain, were authorized to appoint a commissioner of forfeited and delinquent lands in each county, at the next fall term of the Court. And the commissioner was required to ascertain and report to the next term of the Cou,rt the quantity of delinquent and .forfeited land in his county; designating1 particularly the number of tracts, and the quantity contained in each tract; and also its.local situation and probable value; together .with all the information which he might be .enabled to procure in relation to the .state of the title to said lands.
    The county of Pulaski was not formed until 1839, and Currin was appointed commissioner of delinquent and forfeited lands at the April term of the Superior Court for that.cQunty for 1840. At the next September term of the Court,» Currin made a report, in which he said, that he had found but, two tracts of forfeited and delinquent lands in. -the county, one containing 3000 acres,-, and, .the other containing 2000 acres, lying, northeast from the courthouse. That these lands were surveyed on the 6th and 7th of June 1787, for Samuel M’Craw, and carried, .into grant so far as the commissioner had been able to discover; and that the,title was still in M’Craw, or his representatives, if he was not living.
    The.commissioner’s report was confirmed; and .he was directed to make sale of the lands .therein mentioned.
    At the September term of the Court for 1841.. ,the commissioner reported that he had sold th.e land, when the tract of 3000 acres was bought by Daniel H. Hoge for 4S6 dollars, of which he had paid one fourth, or 114 dollars, and had executed his bond with James Hoge as his security for 342 dollars, the residue of the purchase money, bearing date the 4th day of March 1841, and payable twelve months after date. This report was .- confirmed and ordered to be recorded.
    *'D. H. and J. Hoge, having refused , to pay off their bond when it fell due, Currin gave them notice that he would move for an award of execution thereon at the April term of the Superior Court for the county of Pulaski, for 1842. The defendants entered their appearance to the motion, and moved the Court to quash the bond on the ground that Currin having been appointed. commissioner of delinquent and forfeited lands for the county of Pulaski, in April 1840, the appointment and the acts of the commissioner were illegal and void. But the Court, being of opinion that the provision of the act of March 30th, 1837, directing the appointment of the commissioners at the next fall terms of the Superior Courts, was merely directory, and that therefoie the appointment of a commissioner for the county of Pulaski at a period subsequent to the time mentioned in said act, was valid, refused to quash the bond.
    The defendants afterwards offered four special • pleas. The first, third and fourth pleas -were substantially the same; and alleged that the land was sold as patented to Samuel M’Craw, and forfeited in his name, when in fact he had assigned his survey to Zachariah Rowland, to whom the patent issued ; and so M’Craw had no title to the land. The second plea alleged that Currin was not commissioner of forfeited and delinquent lands for the county of Pu-laksi at the time of the sale of the land and the execution of the bond, authorized by law to sell the land, and therefore no title to it was acquired by the defendants, and the consideration of the bond had therefore failed.
    The Court overruled the first, third and fourth pleas; and the plaintiff took issue on the second. On the trial of this issue the defendants moved the Court to instruct the jury that the appointment of the plaintiff as commissioner of forfeited and delinquent lands for the county of Pulaski, at the April term of the Court for 1840, was not made in pursuance of the Act of Assembly, -and did not confer upon him a valid authority to act as such commissioner. But the Court refused to give the instruction asked for by the defendants ; and instructed the jury that the appointment was valid. To which opinion of the Court the defendants excepted; and the jury having found a verdict for the plaintiff, and the Court 'having given a judgment for the amount of the bond, with interest from the time it fell due, the defendants applied for and obtained a super-sedeas to this Court.
    The cause was argued by Pulton, for the appellants, and the Attorney General, for the appellee.
    
      
      Sale of Delinquent Lands. — The principal case is cited in McClure v. Maitland, 24 W. Va. 673; Holly River Coal Co. v. Howell, 36 W. Va. 601, 616, 16 S. E. Rep. 223.
    
   BAI/DWIN, J.,

delivered the opinion of the Court.

The Court is of opinion, that the act of the 30th of March 1837, “to amend and explain the laws concerning western land titles,” and the subsequent acts on the same subject, contemplated the appointment bjr the Circuit Court of each county west of the Blue Ridge of a commissioner of delinquent and forfeited lands, and embraced all such counties, whether existing at the passage of the several acts, or thereafter to be created; and that so much of said act of March 1837, as directed the appointment of such commissioner for each county to be made at the then next fall term of the Circuit Court was merely directory, and does not affect the validity of any such appointment made after such fall term. It seems therefore to the Court, that the defendant in error, as commissioner for the county of Pulaski, had authority to make the sale for taxes in the proceedings mentioned; and that the Circuit Court did not err in refusing to quash the bond therein mentioned given by the plaintiffs in error, for the deferred instalment of purchase money upon said sale, nor in refusing to give the instruction to the jury asked for by the plaintiffs in error as in their bill of exceptions mentioned.

*The Court is further of opinion, that in the sales of -lands under the tax laws the Commonwealth does not warrant either the title or the description of the lands so sold, and that the rule caveat emptor is properly applicable to the purchasers at such sales. Whether the purchaser, by reason of an imperfect or erroneous description of the land in the preliminary report of the commissioner, directed by the acts on that subject, has failed to acquire the title of the owner, is a question between them, which the Court is not called upon to decide in the present case, inasmuch as if decided affirmatively it could not entitle the purchaser to reclaim from the Commonwealth so much of the purchase money as has been actually paid, or resist a judgment for the deferred in-stalment thereof. It seems therefore to the Court, that the Circuit Court did not err in overruling the first, third and fourth pleas of the plaintiffs in error in the proceedings mentioned.

Judgment affirmed.  