(dissenting). It is with reluctance that I dissent from the opinion of the majority of the court in this instance, but a careful consideration of the statutes of West Virginia relating to land sales for taxes impels me to do so.
Section 15, chapter 31, of the Code of West Virginia provides that—
“The owner of any real estate so sold, his heirs or assigns, or any person having a right to charge such real estate for a debt, may redeem the same by paying to the purchaser, his heirs or assigns, within one year from the sale thereof, the amount specified in the receipt mentioned in the tenth section of this chapter and such additional taxes thereon as may have been paid by the purchaser, his heirs, or assigns, with interest on said purchase money, and taxes at the rate of 12 per centum per annum from the time the same may have been so paid, and such additional expenses as may have been incurred by such purchaser before the expiration of said one year in procuring survey and giving notice as provided in section 19 of this chapter.”
This is a year’s grace granted to the owner,- provided be exercises the right thus granted within a year by complying with the provisions of the statute.
The Supreme Court of West Virginia, in the case of State v. King, 47 W. Va. 437, 35 S. E. 30, in discussing the right conferred upon the owner, said:
“While it is law that he may redeem these lands, and eject the. claimants, ■yet the law does not permit him.to do so; nor is it just to the state that he should until he satisfies the unpaid taxes due thereon. The inchoate title of these claimants until the payment of the arrearage taxes is superior to the forfeited title, and may become absolute.”
It does not appear that the owner has complied with any of the provisions of the statute! I am not unmindful of the rule that in a case like the one at bar the statute should be construed most favorably to the owner, but the rule is subject to this qualification, viz.: Where the owner is granted a fixed time within which he may redeem his property by the payment of all taxes and costs he must comply with the plain provisions of the statute, of which he is presumed to have knowledge.
In addition to the section above quoted, section 16, chapter 31, of the Code of West Virginia, in contemplation of the fact “that the purchaser,,his heirs or assigns may refuse to receive the same, or may not reside or cannot be found in the county,” provides that it shall be the duty of the owner to pay the amount of taxes due to the clerk of *611the county court, and in the absence of objection it becomes the duty of the clerk to give the purchaser a receipt for the same. However:
“If tlie purchaser, his heirs, or assigns, disputes the right of any one so paying money to the clerk to redeem the real estate for the redemption of which such money is paid, he or they may within one year after such payment give to such person or his heirs, executors or administi’ators a notice in writing of such dispute, requiring him or them to appear before the circuit court of the county on a day to be named in such notice and prove his or their right to redeem the said real estate.”
Such notice might be served at least 10 days before tire day on which it is returnable, and the Court shall make an order according to the facts and direct the clerk of the county court to execute to the purchaser, his heirs or assigns, a deed to the real estate, as required by the statute.
When we come to consider the facts of this case, we find that the owner has not complied with any one of these provisions. Instead of doing so, he went to the original purchaser who had already assigned and transferred his receipt for the purchase money to E. C. Harrison, and Harrison in turn had transferred the interest he thus acquired to the appellee — thus giving the appellee an inchoate right under the statute to have his deed made at the end of the year, as provided by law, upon having the premises surveyed so as to determine the quantity of land to be conveyed, which he did, thus perfecting a complete chain of title to the premises in question by strict compliance with the law. At the time the owner paid the money to the original purchaser, he knew, or ought to have known, and as a matter of precaution, that it was his duty to take from such purchaser the receipt for the purchase money the sheriff had given him at the time he purchased the land in question. It does not appear that he even demanded a receipt for the same, and if he had done so his demand would have been unavailing, inasmuch as the purchaser by operation of law had parted with the inchoate right he originally had under the statute, and he therefore was no longer the purchaser in the sense contemplated by the statute, and the payment to him was not a compliance with the statute in any sense of the word. In other words, the original purchaser had ceased to sustain any relation whatever by operation of law to the purchase of the land. From the moment he parted with his inchoate right he was an absolute stranger to the transaction, and therefore not entitled to receive the purchase money and interests as provided by the statute.
Under these circumstances, I think that the assignee of the purchaser having had a survey made at the end of the year, it became the duty of the clerk to execute and deliver to him a deed, and the clerk having executed and delivered him a deed to the premises he thereby acquired a perfect title to the land.