
    *Delaney v. Goddin.
    April Term, 1855,
    Richmond.
    1. Tax Sales — Report of Surveyor — Objections—Court Acts flinisterially. — The County court in passing upon any question under the act, Code, ch. 37, § 15, is vested with no judicial power, hut acts in a capacity purely ministerial: And in determining whether or not it will order the report of the surveyor therein required, to he recorded, is restricted to the consideration of ohjections to said report; and has no right to look heyond the return of the list of sales hy the sheriff, required hy § 11 of said chapter.
    
    2. Same — Same—Duty of Court, — In such case it is the duty of the court to see whether said report is in conformity with the provisions of said section, requiring it to specify the metes and hounds of the land sold, and the names of the owners of the adjoining tracts, and to give such other description of the land sold as will identify the same. And in order to discharge that duty, no enquiry into the regularity or validity of the previous proceedings is necessary or proper.
    3. Same — Same—Same.—In such a case, upon a motion hy the purchaser to order the report of the surveyor to he recorded, the County court, not acting judicially, has no authority to render a judgment overruling the motion with costs.
    4. Same — Same—Refusal of Court to Record — Manda» mus. — If the County court renders such a judgment, upon appeal to the Circuit court, that court should simply reverse the judgment with costs; hut should not proceed to order that the report of the surveyor should he recorded: The error of the County court in refusing .to order the report to he recorded, can only he corrected hy manda~ mus; and not hy writ of error or supersedeas.
    
    At the March term 1853 of the County court of Henrico, Isaac A. Goddin moved the court to record the report of the surveyor of the county in relation to a lot of land sold by the sheriff; for the nonpayment of the tax upon it. The lot was sold as the property of Matthew Delaney; and he appeared and opx)osed the motion. The court overruled the motion, and gave Delaney a judgment against Goddin for his costs.
    And thereupon Goddin excepted.
    *On the hearing of the motion God-din showed by the list of delinquents on the land tax in the county of Henrico for the year 1847, that lot No. 8 in E. E. Harvie’s plan, which was assessed with a tax of ten cents, was returned delinquent as owned by Matthew Delaney. And he presented a list of lands and lots returned as delinquent in the county of Henrico for the years from 1845 to 1849, inclusive, certified by the auditor of public accounts to the sheriff of said county in June 1850, in which was this lot of Delaney, as delinquent for the year 1847, for the tax of ten cents, with interest one cent. And he proved by the deputy sheriffs that this list had been received from the auditor; and that within twenty days thereafter, three copies thereof had been made; one of which had been set up at the court-house, and at two other of the most public places in the county, with a notice that the sale of the lands mentioned in the lists would take place on the first day of the next October court for said county. That the said sale was commenced on the day appointed, but that the court sitting only one day, and the sale not being completed, it was adjourned to the first day of the next County court; on which day it was completed. And that notice of such adjournment was posted, and proclamation thereof made, at the door of the court-house of said county on the said October court day. And the advertisement of the sale and of the adjournment were introduced in evidence, the first of which bore date the 25th of July 1850.
    He also introduced a list of real estate within the count3r of Henrico, sold in the months of October and November, for the nonpayment of taxes thereon for the years from 1845 to 1849, inclusive, which list was verified by the oath of the sheriff of Henrico, and certified by the County court to the auditor of public accounts, in the manner prescribed by law; which *list contained the said lot as owned by Delaney. And he also introduced the receipt of the sheriff, which was headed: Memorandum of real estate in the countj” of Hen-rico, sold this 7th day of October 1850 for nonpayment of taxes due thereon for the year 1847; and recited the name of the person charged with the tax; quantity of land; local description of land; amount of tax due; quantity of land charged; name of purchaser; and amount of purchase money: And at the foot a receipt for the purchase money, which was thirty-seven cents.
    He then introduced the report of the surveyor, which was as follows:
    Henrico County, to wit:
    I certify that the above named lot No. 8, of D. E. Harvie’s plan, lies in Hen-rico county, near the city of Richmond. Said lot is on the east side of Belvidere street, and is bounded on the north and south by property of Charles Dimmock, and east by the property of William Row. Given under my hand this 15th day of December 1852.
    Joseph J. Pleasants,
    Sur. Henrico County.
    Delaney on his part, proved that in 1847 he lived in the city of Richmond, and owned a considerable amount of personal property; one witness said as much as two thousand dollars in value. And he proved that he paid to the sheriff of Henrico the tax on another lot in the county in the year 1847.
    The County court having overruled his motion with costs, Goddin applied to the Circuit court of Henrico for a supersedeas to the judgmént, which was awarded: And when the cause came on to be heard in that court, the judgment of the County court was reversed, with costs. And the court proceeding to make such order *as the County court should have made, ordered that the said report be recorded; and for this purpose that the cause be sent back to the said County court. Erom this order Delaney applied to this court for a superse-deas, which was awarded.
    The case was elaborately argued by Gilmer, G. N. Johnson and Patton, for the appellant; and by Howard, Randolph and Stanard, for the appellee.
    The counsel for the appellant insisted that the act to be performed bjr the County court upon the motion to order the report of the surveyor to be recorded, was a judicial act; and that it was the duty of the court to look into all the previous proceedings to see whether they were regular; and if they were not, to refuse to order the report to be recorded. And they insisted that there were fatal irregularities in the previous proceedings.
    The counsel for the appellee insisted that the act to be performed by the court, was a ministerial act; and that the enquiry was limited to the single question, whether the report of the surveyor conformed to the law. And the3r insisted further that there were no irregularities in the previous proceedings, which, if the3' could be looked to by the court, could justify a refusal to order the report to be recorded.
    
      
      See the opinion of Judge Daniel for the statute.
    
    
      
      Tax Sales — Report of Surveyor — Duty of Court to Admit to Record — Mandamus.—In addition to the cases cited in foot-note to Randolph Justices v. Stalnaker, 13 Gratt. 523, see, citing the principal case, Marcum v. Ballot Com’rs, 42 W. Va. 268, 26 S. E. Rep. 283; Board of Supervisors of Mason County v. Minturn, 4 W. Va. 303; McCullough v. Hunter, 90 Va. 701, 19 S. E. Rep. 776. See also, on mandamus, principal case cited in foot-note to Morris, Ex parte, 11 Gratt. 292.
    
   DANIEE, J.

This case turns on the proper construction of the 15th section of the 37th chapter of the Code, prescribing the mode in which lands, returned delinquent for taxes, are sold therefor, or vested in the commonwealth. Preceding sections of the chapter having declared when, where and how land is to be sold for taxes, and provided for a payment of the purchase money and a receipt therefor, and for the return of a list of sales to the court of the county or corporation whose officer may have made the sales; and ^having also pointed out the time and mode for the redemption of any land so sold, the 14th section provides that the purchaser of a part of any tract so sold and not redeemed within two years, shall have the quantity purchased surveyed and laid off, the survey to commence on either of the lines of the tract at the option of the purchaser, so as not to include the improvements on the same (if it can be avoided), and to be in one body, the length whereof shall not be more than double the breadth, when that is practicable. It further provides that a plat and certificate of the survey shall be returned to the court of the county; and if the court, upon examination thereof, find it to be correctly made in conformity with said fourteenth section, it shall order the same to. be recorded.

And the fifteenth section provides that when an entire tract of land is so sold, and not redeemed within the two years, the purchaser shall have a report made by the surveyor of the county to the court thereof, specifying the metes and bounds of the land sold, and the names of the owners of the adjoining tracts; and giving such further description of the land sold as will identify the same: and the County court, unless it see some objection to such report, shall order the same to be recorded.

And the sixteenth section then provides that after the expiration of the two years, the purchaser of the land so sold and not redeemed shall obtain from the clerk or deputy clerk of the court of the county or corporation, whose officer may have sold such land, a deed conveying the same, in which shall be set forth all the circumstances appearing in the clerk’s office in relation to the sale. Moreover if the sale be of part of a tract of land, the deed shall refer particularly to the plat and certificate of survey returned, according to the fourteenth section, and the order of the court thereupon; and if the sale be of an entire tract of *land, it shall refer to the report made according to the fifteenth section, and the order thereupon. If the sale be of a town lot, or of an undivided interest in such lot, and a report be made by a surveyor describing the same, and such report be ordered by the court to be recorded, the deed shall refer to the said report. But when in the case of a sale of a town lot or of an undivided interest in such lot there is no such report, the clerk shall nevertheless execute a deed therefor to the purchaser, if he desire the same.

Can there be any reasonable doubt as to the nature and extent of the duty to be performed by the County court under the fourteenth section? After pointing out how the survey is to be made, and requiring a plat and certificate of it to be returned to the court, the section, in plain and unambiguous terms, limits the enquiry of the court to the question whether or no the survey is correctly made in conformity with said section. Does the plat and certificate show that the survey commences on one of the lines of the tract sold? Is it so made as not to include the improvements? Is it in one body? Is the length no more than double the breadth? If so, then the condition, the only condition on which the order for the record of the survey is in terms made to depend, is satisfied, and the duty of the court to make the order becomes absolute.

The duty of the court under the fifteenth section is, I think, equally simple and obvious. “Unless it see some objection to such report, ’ ’ it is to order it to be recorded. Does the report specify the metes and bounds of the land sold, and the names of the owners of the adjoining tracts, and give such further description of the land sold as will identify the same? If in any case arising under this section these questions are answered affirmatively, what possible objection can the court see to the report? And how can it make *objection to the regularity of some previous proceeding the ground for refusing to record the report, without violating the express command requiring it to order the report to be recorded, unless it sees some objection; not some objection generally, but some objection to the report?

The meaning of the terms employed in the section seems to my mind too plain to admit of any doubt as to the answer to be given. And indeed we cannot convert the examination by the court of the survey under the 14th section, or of the order under the ISth, into an occasion for contesting and deciding upon the regularity and validity of the previous proceedings, without imputing to the legislature a gross partiality and injustice. For we have seen that by the provisions of the 16th section, when the sale is of part of 'a tract of land, the deed is to refer particularly to the plat and certificate of survey returned, and when the sale is qf the entire tract, the deed is to refer to the report required by the ISth section. Whereas in the case of the sale of a town lot, the provision is, that if there be a report made by a surveyor describing it, and the report has been recorded, the deed is to refer to such report; but if there is no such report, the clerk shall nevertheless execute a deed for such lot to the purchaser, if he desire it. And thus as the purchaser may procure his deed, in the case of the sale of a town lot, without having had any survey or report made, the opportunity for showing defect in the previous proceedings, which under the construction contended for by the plaintiff in error is afforded in all cases to the owners of tracts and parts of tracts of land sold for taxes, is virtually denied to the owners of town lots so sold, by being made to depend on the mere option and course of the purchaser. Such a construction, therefore, is condemned as well by the results which flow from it as by the plain meaning of the language ^empkwed in the statute. And I feel no difficulty in coming to the conclusion that in cases like the one under consideration, the County court has no right to look beyond the return of the list of sales by the sheriff, and to examine into the regularity of the previous steps. No matter what such steps may have been or how conducted, they can have no bearing on the simple duty it is called upon to discharge. That duty is in no wise judicial, but purely ministerial. Rex v. Justices of Derbyshire, 1 Win. Black. 606; Dawson v. Thruston, 2 Hen. & Munf. 132; Manus v. Givens, 7 Leigh 689. And upon the authority of these cases, I think it also clear that the means of testing the correctness of the action of the County court in refusing to record the report, is not by writ of error or superse-deas, but by mandamus. So much of the judgment of the Circuit court, therefore, as passes on the refusal of the County court to order the report to be recorded, is erroneous. The Circuit court ought simply to have reversed the judgment of the County court dismissing the motion, and ordering the payment of costs, leaving the defendant in error free to renew his application to the County court to have the report recorded, or to take such other course as he may be advised to pursue in the premises.

ABBBN, P.,

dissented from so much of the opinion and judgment as held that in this case the action of the County court was to be treated as merely ministerial. The power was confided to a court of record, and the action of the court was judicial; the parties appeared and litigated the question ; the court has affirmed its jurisdiction by pronouncing judgment which would conclude the parties until reversed; and therefore it was proper for the Circuit court to review and if erroneous to reverse it. He was further of opinion that the authority of the County court, although *the court acted judicially, was limited to the enquir3' whether the report of the surve3Tor conformed to the requisitions of the law; and that it was not competent for such court, upon this enquiry, to require proof of the regularity of the proceedings leading to or attending the sale. He was further of opinion that the survey did conform to the requisitions of the law, and was therefore for affirming the judgment of the Circuit court reversing the judgment of the County court, and proceeding to enter the judgment it did.

BEE and SAMUEES, Js., concurred in the opinion of Daniel, J.

MONCURE, J., concurred with Allen, J.

The order was as follows:

The court is of the opinion that the County court, in passing upon any question arising under the 15th section of the 37th chapter of the Code of 1849, prescribing the mode in which lands returned delinquent for taxes are sold therefor or vested in the commonwealth, sits simply as a court of registry; and in determining whether or no it will order the report of the surve3ror, therein required to be recorded, is restricted to the consideration of objections to said report, and has no right to look beyond the return of the list of sales by the sheriff required by the eleventh section of said chapter, into the previous proceedings provided for in said chapter. That the said court, izi discharging its duty under the said 15th section, is vested with no judicial powers, but acts in a capacity purely ministerial; that it is its duty to see whether or no said report is in conformity with the provisions of said section, requiring the report to specify the metes and bounds of the land sold, and the names of the owners of the adjoining tracts; and to give such *other description of the land sold as will identify the same; and that in order to discharge this duty, no enquiry into the regularity or validity of the previous proceedings is necessary or proper. And if it sees that there is no objection to said report on the score of its failing to make the specifications or to give the description just mentioned, it becomes the imperative duty of said court to order said report to be recorded.

The court is, therefore, also further of opinion, that the County court had no authority to render the judgment of the 14th of March 1853, dismissing the motion of the defendant in error, and ordering him to pay costs to the plaintiff in error.

And the court is also further of opinion, that whether or no there was such objection to the report of the survey in the proceedings mentioned, as justified the County court in refusing to order the same to be recorded, is a question which it was not competent for the superior court to take cognizance of by means of writ of error or supersedeas; and that the propriety of the action of the County court in refusing to order said report to be recorded, can be tested in the superior court by mandamus only.

And the court is therefore also further of opinion that the Circuit court erred in undertaking to decide on the refusal of the County court to order said report to be recorded, and in rendering a judgment ordering the same to be recorded: And that instead of rendering its said judgment of the 20th July 1854, the Circuit court ought simply to have rendered a judgment reversing, with costs to defendant in error, the judgment of the County court dismissing his motion, and ordering him to pay costs.

It is therefore considered, that so much of the said judgment of the Circuit court as reverses the said judgment of the County court, with costs to the defendant in error, be affirmed; and that so much thereof *as orders the report aforesaid to be recorded, be reversed and annulled. And that the said plaintiff in error recover against the said defendant in error his costs by him expended in the prosecution of his writ of supersedeas aforesaid here. And the said defendant in error is at liberty to renew his application before the County court, or to take such other legal course as he may be advised to pursue in the premises. All which is to be certified, &c. „  