Robert S. Kiss
William
J. Leon
Camden P. Siegrist
William
J. Leon, L.C.
Heather G. Harlan
Morgantown,
West Virginia
Bowles Rice McDavid Graff & Love LLP Attorney
for Appellee
Charleston, West Virginia
Subcarrier
Communications, Inc.
Attorneys for the Appellant
JUSTICE DAVIS delivered the Opinion of the Court.
1. “A
circuit court's entry of summary judgment is reviewed de novo.” Syllabus
point 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).
2. “Where
the issue on an appeal from the circuit court is clearly a question of law or
involving an interpretation of a statute, we apply a de novo standard
of review.” Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194
W. Va. 138, 459 S.E.2d 415 (1995).
3. “Where
the language of a statute is free from ambiguity, its plain meaning is to be
accepted and applied without resort to interpretation.” Syllabus point 2, Crockett
v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 (1970).
4. W. Va.
Code § 11A-3-6(a) (1994) (Repl. Vol. 2005) is plain in stating that “No
sheriff, . . . shall directly or indirectly become the purchaser,
or be interested in the purchase, of any tax lien on any real estate at the tax
sale or receive any tax deed conveying such real estate.” There is nothing
in this statute to limit its prohibition to only the sheriff conducting the tax
sale.
5. Where
a sheriff is among the principals of a corporation, the corporation cannot, for
purposes of W. Va. Code § 11A-3-6(a) (1994) (Repl. Vol. 2005), be deemed
a
bona fide purchaser of real estate that has been acquired by virtue of a tax
deed.
Davis, Justice:
In this action to set aside a tax deed, the
holders of the tax deed appeal summary judgment in favor of the landowner. In
granting summary judgment and setting aside the tax deed as void, the circuit
court found that, based upon the undisputed facts, there was no question that
after the purchase of the tax lien, the tax lienholder failed to exercise due
diligence in obtaining the landowners correct address in order to provide notice
to the landowner of its right to redeem the property. After reviewing the parties
arguments, the record submitted on appeal and the relevant authority, we find
that, because the tax lienholder held the position of sheriff, he is prohibited
from purchasing the tax lien or receiving the tax deed. Accordingly, we affirm
the circuit court's order granting summary judgment and setting aside the tax
deed as void.
In November 1996, Subcarrier Communications,
Inc., Plaintiff below and Appellee (hereinafter referred to as “Subcarrier”),
purchased a 9.23-acre tract of real estate from Skyline Communications, Ltd. (See
footnote 1) The deed commemorating the sale was duly recorded in
the office of the Preston County Clerk and correctly identified Subcarrier's
corporate
address as 101 Eisenhower Parkway, Roseland, New Jersey.
In September of 1997, Subcarrier relocated
its office to 139 White Oak Lane, Old Bridge, New Jersey. By correspondence dated
November 25, 1997, Subcarrier notified the Preston County Clerk of its change
in address and current phone number. Nevertheless, in May 1998, when the 1997
property tax for the realty had not been paid, (See
footnote 2) the Sheriff of Preston County mailed a notice of delinquency
to Subcarrier at its former, Roseland, New Jersey, address. A postal forwarding
order was in effect at that time, so Subcarrier received the notice at its new
address. Subcarrier responded to the notice by tendering a check in the proper
amount and enclosing a letter with the check again advising the sheriff of Subcarrier's
new address. Additionally, the check tendered in payment of the delinquent taxes
bore Subcarrier's new address.
Nevertheless, when property tax statements
were issued for the 1998 tax year, the sheriff once again mailed Subcarrier's
statement to its old Roseland, New Jersey, address. Thereafter, in September
1998, the sheriff mailed a notice of delinquency due to Subcarrier's failure
to pay the 1998 property tax. As before, the sheriff mailed the notice
to Subcarrier's old Roseland, New Jersey, address. By this time the postal
forwarding order had expired and the statement was returned to the sheriff's
office with a stamp stating “[u]ndeliverable, [f]orwarding order expired.”
On November 15, 1999, a tax lien sale was
conducted by the Preston County Sheriff. Mr. Patrick Nield, Sheriff of Mineral
County, West Virginia, a Defendant below and one of the Appellants (hereinafter
referred to as “Sheriff Nield”), purchased the tax lien for the property
for the amount of $436.38. (See
footnote 3) Thereafter, in late 2000, Sheriff Nield engaged attorney
Neil Reed, a third-party defendant below, to research the title to the property
and to otherwise assist Sheriff Nield in obtaining a tax deed to the property.
One of the requirements for obtaining a tax deed is to provide notice of the
right to redeem pursuant to W. Va. Code §§ 11A-3-19 (1998)
(Repl. Vol. 2005), 11A-3-21 (1998) (Repl. Vol. 2005), and 11A-3-22 (1995) (Repl.
Vol. 2005). To facilitate proper notice to Subcarrier, Sheriff Nield contacted
the West Virginia Secretary of State's office to obtain Subcarrier's current
mailing address. The only address on record for Subcarrier was the old, Roseland,
New Jersey, address. Therefore, the county clerk mailed the notice to Subcarrier's
old, Roseland, New Jersey, address. (See
footnote 4) As expected, the notice of the right to redeem sent to
Subcarrier was returned stamped “[u]ndeliverable, [f]orwarding order expired.” Thereafter,
in January 2001, the notice of right to redeem was published in the Preston
County News and the Preston County Journal, pursuant to W. Va. Code § 11A-3-22,
the statute that provides, inter alia, for serving notice on an out-of-state
landowner whose address “cannot be discovered by due diligence.”
On or about April 12, 2001, Sheriff Nield
assigned his tax lien to himself, his son Ronald Nield, and John B. Lusk, defendants
below and appellants. On the same date, the county clerk issued a tax deed for
the subject property naming Sheriff Nield, Ronald Nield and John Lusk as the
grantees. Also on that day, Sheriff Nield went to the property and observed a
sign attached to a fence surrounding the telecommunications tower which displayed
Subcarrier's name, current address and phone number. The circuit court found
that it was undisputed that this sign had been present on the property since
at least August 1999. Sheriff Nield then called Subcarrier and informed it that
he possessed a tax deed to the property.
In July 2001, Sheriff Nield, Ronald Nield
and John Lusk conveyed the property to LN&N Investments, LLC. Sheriff Nield,
Ronald Nield and John Lusk are the
sole principals of LN&N (hereinafter collectively referred to as “the
defendants”).
Then, on September 3, 2002, Subcarrier
filed suit to set aside the tax deed. (See
footnote 5) The defendants filed an answer and counterclaim seeking
recovery of damages equal to the amount of income Subcarrier had received from
contracts involving the use of the telecommunications tower. (See
footnote 6)
Subcarrier filed a motion for summary judgment
on June 26, 2003, claiming that there was no question of fact that the defendants
had failed to exercise due diligence in obtaining Subcarrier's correct address
for providing notice of the right to redeem, and further asserting that the tax
deed was voidable as a matter of law pursuant to W. Va. Code § 11A-3-
6(a) (1994) (Repl. Vol. 2005), which prohibits sheriffs from purchasing tax liens.
The circuit court denied the motion by order entered October 15, 2003, finding
there was a genuine question of material fact on the issue of whether the defendants
had exercised due diligence. The circuit court additionally found that the issue
of whether Sheriff Nield was prohibited from purchasing the tax lien was a question
of first impression in West Virginia, and held “in abeyance its ruling regarding
whether the tax lien purchased by Defendant Patrick Nield, and
the tax deed issued to Defendants pursuant thereto, are voidable pursuant to
West Virginia Code § 11A-3-6(a).”
The case was further developed over the next
year and Subcarrier renewed its motion for summary judgment on July 26, 2004.
By order entered October 25, 2004, the Circuit Court of Preston County granted
summary judgment to Subcarrier based upon its finding that there was no question
that defendants had failed to make a reasonable inquiry that could and would
have revealed the correct mailing address for the notice requirements set forth
in W. Va. Code § 11A-3-22. (See
footnote 7) It is from this order that the defendants now appeal.
This case is before us on appeal from an
order granting summary judgment. “A circuit court's entry of summary judgment
is reviewed de novo.” Syl. pt. 1, Painter v. Peavy, 192 W. Va.
189, 451 S.E.2d 755 (1994). When undertaking our plenary review, we apply the
same standard for granting summary judgment as would be applied by a circuit
court. Specifically,
“'[a] motion for summary
judgment should be granted only when it is clear that there is no genuine issue
of fact to be tried
and inquiry concerning the facts is not desirable to clarify the application
of the law.' Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal
Insurance Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963).” Syllabus
Point 1, Andrick v. Town of Buckhannon, 187 W. Va. 706, 421 S.E.2d
247 (1992).
Syl. pt. 2, Painter. We further observe that “[t]he circuit court's
function at the summary judgment stage is not to weigh the evidence and determine
the truth of the matter, but is
to determine whether there is a genuine issue for trial.” Syl. pt. 3, Painter.
Finally, because we herein address the proper
application of a statute, we note that “[w]here the issue on an appeal from
the circuit court is clearly a question of law or involving an interpretation
of a statute, we apply a de novo standard of review.” Syl. pt. 1, Chrystal
R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995). With these
various principals in mind, we proceed to our discussion of the issues raised
in this appeal.
In this case, notice to Subcarrier of its
right to redeem the property at issue was provided by publication after the mailed
notices were returned as undeliverable. In granting summary judgment in favor
of Subcarrier, the circuit court noted that under W. Va. Code § 11A-3-22,
a nonresident may be served via notice by publication only “as a substitute
for actual notice where a current, valid address for the nonresident 'cannot
be discovered by due
diligence.'” (Citation omitted). The circuit court concluded that “a
reasonable inquiry by the individual Defendants could and would have revealed
the correct mailing address of the Plaintiff at which Plaintiff would have
received the notice of its right to redeem the subject property as is required
by West Virginia law.”
On appeal, the defendants argue that the
sole issue before this Court is whether the circuit court erred in granting summary
judgment in favor of Subcarrier based upon its determination that the defendants
failed to make a reasonable inquiry to discover Subcarrier's correct mailing
address for the notice requirements set forth in W. Va. Code § 11A-3-22.
The defendants assert that they satisfied the § 11A-3-22 requirement for “due
diligence.”
We need not reach the issue raised by the
defendants, however, as we find that summary judgment was proper on grounds other
than those asserted by the circuit court.
In Williams v. Precision Coil, Inc., [194 W. Va. 52, 459 S.E.2d 329 (1995)], we acknowledged that a grant of summary judgment may be sustained on any basis supported by the record. Thus, it is permissible for us to affirm the granting of summary judgment on bases different or grounds other than those relied upon by the circuit court.
Gentry v. Mangum, 195 W. Va. 512, 519, 466 S.E.2d 171, 178 (1995)
(footnote omitted).
The dispositive issue in this case is the
question of whether Sheriff Nield is
prohibited by W. Va. Code § 11A-3-6(a) from purchasing a tax lien
or receiving a tax deed. (See
footnote 8) To answer this question, we look to the relevant statute,
while mindful that, “[w]e look first to the statute's language. If the
text, given its plain meaning, answers the interpretive question, the language
must prevail and further inquiry is foreclosed.” Appalachian Power
Co. v. State Tax Dep't, 195 W. Va. 573, 587, 466 S.E.2d 424, 438 (1995).
W. Va. Code § 11A-3-6(a) states:
No
sheriff, clerk of the county commission or circuit court, assessor, nor deputy
of any of them, shall directly or indirectly become the purchaser, or
be interested in the purchase, of any tax lien on any real estate at the tax
sale or receive any tax deed conveying such real estate. Any such officer
so purchasing shall forfeit one thousand dollars for each offense. The sale of
any tax lien on any real estate, or the conveyance of such real estate by tax
deed, to one of the officers named in this section shall be voidable, at the
instance of any person having the right to redeem, until such real estate reaches
the hands of a bona fide purchaser.
(Emphasis added). We find nothing ambiguous about this statute's prohibition
against sheriffs purchasing tax liens or receiving tax deeds. Therefore, we
may not construe its language. “A
statute is open to construction only where the language used requires interpretation
because of ambiguity which renders it susceptible of two or more constructions
or of such doubtful or obscure meaning that reasonable minds might be uncertain
or disagree as to its meaning.” Sizemore v. State Farm Gen. Ins. Co.,
202 W. Va. 591, 596, 505 S.E.2d 654, 659 (1998) (internal quotations and
citation omitted). Stated otherwise, “[w]here the language of a statute
is free from ambiguity, its plain meaning is to be accepted and applied without
resort to interpretation.” Syl. pt. 2, Crockett v. Andrews, 153
W. Va. 714, 172 S.E.2d 384 (1970). See also Syl. pt. 2, State
v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968) (“Where the language
of a statute is clear and without ambiguity the plain meaning is to be accepted
without resorting to the rules of interpretation.”); Syllabus point 5, State
v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va.
137, 107 S.E.2d 353 (1959) (“When a statute is clear and unambiguous and
the legislative intent is plain, the statute should not be interpreted by the
courts, and in such case it is the duty of the courts not to construe but to
apply the statute.”); Syllabus Point 2, State v. Epperly, 135 W. Va.
877, 65 S.E.2d 488 (1951) (“A statutory provision which is clear and unambiguous
and plainly expresses the legislative intent will not be interpreted by the
courts but will be given full force and effect.”). Under
the plain language of W. Va. Code § 11A-3-6(a), “[n]o sheriff,” may
purchase a tax lien or receive a tax deed.
The defendants argue, however, that when
W. Va. Code § 11A-3-6(a) is read in the context of the other sections
of the West Virginia Code that make up Article 3 of Chapter 11A, it becomes clear
that the Legislature intended to prohibit from purchasing a tax
lien or receiving a tax deed only the sheriff of the county in which the tax
sale is being conducted. The defendants are correct that a statute must be
read in the context of other sections of the code pertaining to the same subject
matter. “Statutes which relate to the same subject matter should be read
and applied together so that the Legislature's intention can be gathered from
the whole of the enactments.” Syl. pt. 3, Smith v. State Workmen's
Comp. Comm'r, 159 W. Va. 108, 219 S.E.2d 361 (1975). See also Syl.
pt. 5, Fruehauf Corp. v. Huntington Moving & Storage Co., 159 W. Va.
14, 217 S.E.2d 907 (1975) (“Statutes which relate to the same persons
or things, or to the same class of persons or things, or statutes which have
a common purpose will be regarded in pari materia to assure recognition
and implementation of the legislative intent. Accordingly, a court should not
limit its consideration to any single part, provision, section, sentence, phrase
or word, but rather review the act or statute in its entirety to ascertain
legislative intent properly.”). However, “'a related statute cannot
be utilized to create doubt in an otherwise clear statute.'” Berkeley
County Pub. Serv. Sewer Dist. v. West Virginia Pub. Serv. Comm'n, 204 W.
Va. 279, 287, 512 S.E.2d 201, 209 (1998) (citations omitted). (See
footnote 9) While we agree that in this instance it is
proper to consider W. Va. Code § 11A-3-6(a) in light of its surrounding
statutes, we disagree with the defendant's position that such a reading leads
to the conclusion that “[n]o sheriff,” as used in W. Va. Code § 11A-3-6(a),
is actually a reference to only the sheriff of a particular county.
A thorough examination of Article 3 of Chapter
11A of the West Virginia Code plainly reveals that the Legislature refers to “sheriff” in
both specific and general forms. When a provision applies to a specific sheriff,
e.g., the sheriff conducting a tax sale, the Legislature indicates as much by
utilizing the phrase “the sheriff.” See, e.g., W. Va. Code § 11A-3-2(a)(2000)
(Repl. Vol. 2005) (“On or before the tenth day of September of each year, the
sheriff shall prepare a second list of delinquent lands, which shall include
all real estate in his county remaining delinquent as of the first day
of September, together with a notice of sale, . . . .”)
(emphasis added); W. Va. Code § 11A-3-2(b) (“no less than thirty
days
prior to the sale the sheriff shall send a notice of the delinquency . . . .”)
(emphasis added); W. Va. Code § 11A-3-3(a) (1995) (Repl. Vol. 2005)
(“unless he shall have filed a statement declaring such interest with the
sheriff”) (emphasis added); W. Va. Code § 11A-3-5(a) (2000)
(Repl. Vol. 2005) (“The tax lien on each unredeemed tract or lot, or each
unredeemed part thereof or undivided interest therein shall be sold by the
sheriff . . . .”) (emphasis added); W. Va.
Code § 11A-3-7(a) (1994) (Repl. Vol. 2005) (“Whenever it shall appear
to the sheriff that any real estate included in the list has been previously
conveyed by deed and no tax thereon is currently delinquent, . . . .”)
(emphasis added); W. Va. Code § 11A-3-20 (2005) (Repl. Vol. 2005)
(“Upon receipt of the abstract or certificate, the sheriff shall
cause the moneys so paid to be refunded. Upon refund, the sheriff shall
inform the assessor of the erroneous assessment for the purpose of having the
assessor correct the error.”) (emphasis added); W. Va. Code § 11A-3-24(b)
(1998) (Repl. Vol. 2005) (“following the sheriff's sale as provided in
section twenty-three [§ 11A-3-23] of this article, the sheriff shall
deposit the money received in the sale of tax lien surplus fund provided by
section ten of this article.”) (emphasis added); W. Va. Code § 11A-3-32(a)
(1994) (Repl. Vol. 2005) (“The sheriff shall keep in a separate
fund the proceeds of all redemptions and sales paid to him under the
provisions of this chapter . . . .”) (emphasis added).
However, when a reference is to sheriffs
generally, terms such as “a sheriff,” “each sheriff,” “any
sheriff,” or, of significance to the instant case, “no sheriff,” are
used.
See e.g., W. Va. Code § 11A-3-5(b) (“Each sheriff is
immune from liability if a loss or claim results from the sale of a tax lien
conducted pursuant to the provisions of this article . . . .”)
(emphasis added); W. Va. Code § 11A-3-11(b) (1994) (Repl. Vol. 2005)
(“Any sheriff who fails to prepare and return the list of sales,
suspensions, redemptions and certifications within the time required by this
section shall forfeit not less than fifty nor more than five hundred dollars, . . . .”)
(emphasis added); W. Va. Code § 11A-3-18(a) (2000) (Repl. Vol. 2005)
(“No lien upon real property evidenced by a tax certificate of sale issued
by a sheriff on account of any delinquent property taxes may remain
a lien thereon for a period longer than eighteen months after the original
issuance thereof.”) (emphasis added).
Thus, Article 3 itself demonstrates that
if the Legislature had intended W. Va. Code § 11A-3-6(a) to apply so
as to prohibit only the sheriff conducing the sale from buying a tax lien, then
it would have made a specific reference to the sheriff. Instead, the Legislature
proclaimed that “[no] sheriff” shall purchase a lien or receive a tax
deed. We are bound to presume that by plainly stating “[n]o sheriff,” the
Legislature meant no sheriff. “'[C]ourts must presume that a legislature
says in a statute what it means and means in a statute what it says there.'” Martin
v. Randolph County Bd. of Educ., 195 W. Va. 297, 312, 465 S.E.2d 399,
414 (1995) (quoting Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54,
112 S. Ct. 1146, 1149, 117 L. Ed.2d 391, 397 (1992)).
While a statute that applies to prohibit only the sheriff of the county in which the tax sale is being conducted from purchasing a tax lien or receiving a tax deed might be perfectly reasonable, such a limitation is simply not included in W. Va. Code § 11A-3-6(a), and this Court is not authorized to place it there.
“'[I]t is not for [courts] arbitrarily to read into [a statute] that which it does not say. Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted.' Banker v. Banker, 196 W. Va. 535, 546-47, 474 S.E.2d 465, 476-77 (1996) (citing Bullman v. D & R Lumber Company, 195 W. Va. 129, 464 S.E.2d 771 (1995); Donley v. Bracken, 192 W. Va. 383, 452 S.E.2d 699 (1994)). ([E]mphasis added). See State ex rel. Frazier v. Meadows, 193 W. Va. 20, 24, 454 S.E.2d 65, 69 (1994). Moreover, '[a] statute, or an administrative rule, may not, under the guise of “interpretation,” be modified, revised, amended or rewritten.' Syl. pt. 1, Consumer Advocate Division v. Public Service Commission, 182 W. Va. 152, 386 S.E.2d 650 (1989). See Sowa v. Huffman, 191 W. Va. 105, 111, 443 S.E.2d 262, 268 (1994).” Williamson v. Greene, 200 W. Va. 421, 426-27, 490 S.E.2d 23, 28-29 (1997).
Longwell v. Board of Educ. of County of Marshall, 213 W. Va. 486, 491, 583 S.E.2d 109, 114 (2003). (See footnote 10)
Based upon the foregoing, we hold that W. Va.
Code § 11A-3-6(a) (1994) (Repl. Vol. 2005) is plain in stating that “No
sheriff, . . . shall directly or indirectly become the purchaser,
or be interested in the purchase, of any tax lien on any real estate at the tax
sale or receive any tax deed conveying such real estate.” There is nothing
in this statute to limit its prohibition to only the sheriff conducting the tax
sale.
It is not disputed that Sheriff Nield is
the sheriff of Mineral County, thus he is prohibited from being a purchaser of
a tax lien or receiving a tax deed conveying such real estate. The defendants
further assert, however, that because the property has been sold to LN&N
Investments, LLC, the deed is no longer voidable. In support of this argument,
the defendants direct our attention to the last provision of W. Va. Code § 11A-3-6(a),
which states:
The sale of any tax lien on any real estate, or the conveyance of such real estate by tax deed, to one of the officers named in this section shall be voidable, at the instance of any person having the right to redeem, until such real estate reaches the hands of a bona fide purchaser.
(Emphasis added). The defendants contend that LN&N Investments, LLC, is
a bona fide purchaser. We disagree. The statute does not define the term bona
fide purchaser, we therefore afford the term its common, ordinary meaning. “In
the absence of any definition
of the intended meaning of words or terms used in a legislative enactment,
they will, in the interpretation of the act, be given their common, ordinary
and accepted meaning in the connection in which they are used.” Syl. pt.
1, Miners in Gen. Group v. Hix, 123 W. Va. 637, 17 S.E.2d 810 (1941), overruled
on other grounds by Lee-Norse Co. v. Rutledge, 170 W. Va. 162, 291
S.E.2d 477 (1982).
This Court long ago held that “[a] bona
fide purchaser is one who actually purchases in good faith.” Syl. pt.
1, Kyger v. Depue, 6 W. Va. 288 (1873). We have also described a
bona fide purchaser of land as “'one who purchases for a valuable consideration,
paid or parted with, without notice of any suspicious circumstances to put him
upon inquiry.” Stickley v. Thorn, 87 W. Va. 673, 678, 106 S.E.
240, 242 (1921) (quoting Carpenter Paper Co. v. Wilcox, 50 Neb. 659, 70
N. W. 228 (1897)). See also Simpson v. Edmiston, 23 W. Va.
675, 680 (1884) (“[A] bona fide purchaser is one who buys an apparently
good title without notice of anything calculated to impair or affect it.”);
Black's Law Dictionary 1249 (7th ed.1999) (defining a bona fide purchaser
as “[o]ne who buys something for value without notice of another's claim
to the item or of any defects in the seller's title; one who has in good faith
paid valuable consideration for property without notice of prior adverse claims.”).
In the instant case, we are presented with
the unusual circumstance of a person who, by virtue of his position as sheriff,
is prohibited by law from purchasing tax liens or
receiving tax deeds. The question we must answer is whether a corporation may
hold such a deed as a bona fide purchaser when the sheriff is a principal of
the corporation. Given the foregoing definitions of a bona fide purchaser,
we find that such a corporation may not enjoy bona fide purchaser status. It
would defy logic and justice to allow a sheriff to own, as the principal of
a corporation, that which he is prohibited by law from owning. Moreover, this
Court has recognized that one who purchases real estate from a tax-purchaser
can never be a bona fide purchaser. In Simpson v. Edmiston, the Court
explained
A tax sale is the culmination of proceedings which are matters of record; and it is a reasonable presumption of law, where one acquires rights which depend upon matters of record, he first makes search of the record in order to ascertain whether anything shown thereby would diminish the value of such rights, or tend in any contingency to defeat them. A tax-purchaser, consequently, cannot be in any strict technical sense a bona fide purchaser, as that term is understood in the law. And for the same reason his vendee cannot be such purchaser; because a bona fide purchaser is one who buys an apparently good title without notice of anything calculated to impair or affect it; but the tax-purchaser and his vendees are always deemed to have such notice when the record shows defects. They cannot shut their eyes to what has been recorded for the information of all concerned, and relying implicitly on the action of the officers, assume what they have done is legal because they did it.
23 W. Va. 675, 680 (emphasis added). Accordingly, we now hold that where a sheriff is among the principals of a corporation, the corporation cannot, for purposes of W. Va. Code § 11A-3-6(a) (1994) (Repl. Vol. 2005), be deemed a bona fide purchaser of real estate that has been acquired by virtue of a tax deed.
The record is clear that Sheriff Nield is
one of three principals of LN&N Investments, LLC. Therefore, LN&N Investments,
who purchased the property from the defendants, cannot be deemed a bona fide
purchaser of the real estate at issue herein. In the absence of a bona fide purchaser,
the deed is “voidable at the instance of” Subcarrier. W. Va. Code § 11A-3-6(a).
Accordingly, the circuit court did not err in granting summary judgment to Subcarrier,
and setting aside the tax deed as void.
For the reasons set out in the body of this
opinion, the order of the Circuit Court of Preston County, entered on October
25, 2004, is affirmed.