To my mind the principal difficulty that arises in matters of this kind springs from the effort to reconcile the provision of Article XIII, Section 4 of our Constitution requiring that land purchased by the State at a sale for delinquent taxes must become irredeemable before sold by the State in a proceeding brought by it in the circuit court of the county in which the land or a part thereof is situated, for that purpose, and the provision of Section 5 of the same article granting the former owner the right to receive the excess of the sum for which the land may be sold above the aggregate of taxes, interest and costs. This Court formerly held that the right to the excess did not save to the former owner an interest in the land and for that reason he was not a necessary party to an administrative ex parte proceeding brought by the State for its sale. McClure v. Maitland, 24 W. Va. 561;Auvil v. Iaeger, 24 W. Va. 583. By Section 5, Chapter 95, Acts of 1882, the Legislature, however, provided that all claimants should be made parties to a proceeding of that nature by personal service or order of publication. Both the Maitland case and the Iaeger case, decided in 1884, were based upon proceedings brought respectively in 1879 and 1881, before the Act of 1882. Neal v. Wilson, 79 W. Va. 482,92 S.E. 136; Jenkins v. Kirby, 90 W. Va. 436, 111 S.E. 307. So that the present situation is that the person in whose name the *Page 18 land was sold for delinquent taxes, if still appearing of record as the owner of the paper title, shall be made a party to a judicial proceeding for its sale by the State pursuant to its purchase, and, further, is entitled under the Constitution to whatever the land brings at a public sale above the amount of taxes, interest and costs. This right exists under our Constitution concerning land that has become irredeemable, and yet for all practical purposes it amounts to the right to redeem. See Totten v. Nighbert, 41 W. Va. 800, 24 S.E. 627. True, the former owner cannot in proper person bid at the sale (Code, 11A-4-34) but his right to the excess eliminates competitive bidding if he, acting through another, wishes to do so. Except in his name, no other person has the right to pay the amount due on the land prior to sale. If the former owner, in the name of a third person, buys at the sale he is out of pocket exactly what would be required to redeem. Small wonder that our West Virginia cases have spoken of it continually as being a "redemption" made during the pendency of a suit brought against land supposedly become irredeemable. The only theory upon which this could soundly be done seems to be that the Constitution does not require more than that the land become irredeemable: not that it remain irredeemable. If that is the correct viewpoint, then it may be said that after one year has expired following the purchase by the State that the period for redemption has ended and the land has become irredeemable. It remains irredeemable until a proceeding is brought by the State in the proper circuit court in order to subject it to sale. During the intervening period there is no one provided by law to whom the taxes, penalties and interest can be paid so that the release of the land can be effected by the former owner.
Our cases attempt to distinguish between the right to redeem during the year following sale to the State, and the privilege given by the State as an act of grace to pay the State its money and have it surrender its claim to the land after a proceeding for its sale is brought. Perhaps the latter is an act of grace, but it is based upon the constitutional *Page 19 provision that requires the State to pay to the former owner whatever it receives above the taxes, etc., due at the time of sale.
At the time of the Maitland case when the former owner was not entitled to receive notice of a proceeding brought by the State for the sale of land that it had purchased at a tax sale, it could be said that the land itself had become in fact irredeemable, but under present conditions the irredeemable period I believe has become only technical in order to satisfy the constitutional requirement to the effect that land must become irredeemable before sold by the State. It is true, as stated by Judge Fox, that after the one-year period of redemption has expired, title to the land it had purchased became absolutely vested in the State. It is true also that the State could not divest itself of the title thus gained except by a proceeding brought in the circuit court by the commissioner of school lands for that purpose, making the former owner a party, and that during that proceeding the former owner could, in effect, redeem, or, of course, if sale were ordered could indirectly bid at the sale, being entitled to the excess of the purchase money paid. Titles were frequently taken in the name of a friendly third person in order to clear the title of adverse claims, it being thought that he received the title of the State free from the claims of all persons as in an original senior grant.
The above observations are made in an effort to illustrate that it is the well established legislative policy to accord to the former owner or the person in whose name the delinquency occurred, in the event of sale to the State, every possible consideration, and yet to comply with the constitutional provision that before land purchased by the State can be sold by it, the land must become at least technically irredeemable. However, the irredeemable requirement of Section 4 of Article XIII cannot be totally ignored. *Page 20