Chapter 37. REAL PROPERTY.

§1. Renewal of Lease by or to Persons Under Disability.—Where an infant, insane person, or convict is entitled to or bound to renew any lease, any person on behalf of such infant, insane person, or convict, or any person interested, may apply by petition or motion in a summary way, to the circuit court of the county in which the land leased or some part thereof may lie, and by the order of such court, any person appointed by it may, from time to time, surrender or accept a surrender of such lease, or take or make a new lease of the same premises for such term, and with such provisions as the court shall direct. Such reasonable sums as may be incurred to renew any such lease shall, with interest thereon, be paid out of the profits of the leasehold premises and be a charge thereon until such payment.(Code 1849, c. 128, §1; Code 1860, c. 128, §1; Code 1868, c. 83, §1; Const. 1872, art. 6, §39; Code 1923, c. 83, §1.)

§2. Sale, Lease or Mortgage; Bill; Parties; Definition.—If the guardian of any minor, or the committee of any insane person or convict, think that the interest of the ward or insane person or convict will be promoted by a lease or by a mortgage or by a trust deed upon or by a sale of his estates, or of an estate in which he is interested with others, infants or adults; or if the trustee of any estate, or any person interested in any estate in trust, whether he be interested with others or not, think the interest of those for whom the estate is held will be promoted by a lease of the same, mortgage or trust deed upon the same, or a sale thereof; such guardian, committee, trustee, or beneficiary, whether the estate of the minor or insane person or convict, or any of the persons interested, be absolute or limited, and whether there be or be not limited thereon any other estate, vested or contingent, and whether the guardian, committee or trustee, or the minor, insane person, convict, or any of the persons interested, reside in this State or not, may, for the purpose of obtaining such sale, lease, mortgage or trust deed, file a bill in equity in the circuit court of the county in which the estate proposed to be leased, sold, or encumbered by mortgage or trust deed or some part thereof may be, stating plainly all of the estate, real and personal, belonging to such infant or insane person or convict, or so held in trust, and all of the facts calculated to show the propriety of the sale, lease, mortgage, or trust deed. The bill shall be verified by the oath of the plaintiff; and the infant or insane person or convict, or the beneficiaries in such trust, when not plaintiffs, and all others interested, shall be made defendants. The word “lease” as used in this article shall include any mining or timber lease or any lease of any profit in land, and the word “sale” shall include the sale of any undivided interest, or any part of the corpus of land, or anything in or growing upon land.(Code 1849, c. 128, §2; Code 1860, c. 128, §2; 1865, c. 38, §1; Code 1868, c. 83, §2; 1897, c. 28, §2; Code 1923, c. 83, §2.)

§3. Guardian Ad Litem.—To every such infant or insane or convict defendant there shall be appointed a guardian ad litem who as well as the infant (if over fourteen years of age) shall answer the bill on oath in proper person.(Code 1849, c. 128, §3; Code 1860, c. 128, §3; 1865, c. 38, §2; Code 1868, c. 83, §3; Code 1923, c. 83, §3.)

§4. Depositions.—No deposition shall be read in the suit against any infant or insane or convict party, except by leave of the court, unless it be taken in the presence of the guardian ad litem or upon interrogatories agreed on by him.(Code 1849, c. 128, §4; Code 1860, c. 128, §4; Code 1868, c. 83, §4; Code 1923, c. 83, §4.)

§5. The Decree.—If it be clearly shown, independently of any admissions in the answers, that the interest of the infant, insane person, convict or beneficiaries in the trust, as the case may be, will be promoted, and the court be of the opinion that the rights of no person will be violated thereby, it may decree that such estate or any part thereof be sold, leased, mortgaged or encumbered by a trust deed, on such conditions and upon such terms as to the court shall seem to the best interests of such infant, insane person, convict or beneficiary in a trust, as the case may be, and in case the sale of such land is decreed, the purchaser, when the sale is on credit, shall be required to give ample security, and, if the sale be of real estate, a lien shall be retained thereon to secure the payment of the purchase money.(Code 1849, c. 128, §5; Code 1860, C. 128, §5; 1865, c. 38, §3; Code 1868, c. 83, §5; 1897, c. 28, §5; Code 1923, c. 83, §5.)

§6. Who Not to be Purchaser.—At such sale the guardian, or guardian ad litem, or committee, or trustee, shall not be a purchaser, directly or indirectly.(Code 1849, c. 128, §6; Code 1860, c. 128, §6; 1865, c. 38, §4; Code 1868, c. 83, §6; Code 1923, c. 83, §6.)

§7. Investment of Proceeds.—The proceeds of sale shall be invested under the direction of the court, for the use and benefit of the persons entitled to the estate, and, in case of a trust estate, subject to the uses, limitations, and conditions contained in the writing creating the trust. But into whosesoever hands such proceeds may be placed, the court shall take ample security and from time to time require additional security, if necessary, and make any other proper orders for the faithful application of the fund, and for the management and preservation of any property, or securities in which the same may be invested, and for the protection of the rights of all persons interested therein, whether such rights be vested or contingent.(Code 1849, c. 128, §7; Code 1860, c. 128, §7; 1865, c. 38, §5; Code 1868, c. 83, §7; Code 1923, c. 83, §7.)

§8. Joinder of Spouse, or Sale Free of Dower.—When a decree or order is made under this article, or under article nine, chapter twenty–seven of this Code, for the sale or other conveyance of the real estate of an insane or infant or convict spouse, the other spouse may, if he or she think fit, join in the conveyance and thereby release dower and shall in such case, if he or she so demand, receive out of the proceeds of sale the value of his or her inchoate dower, computed according to the provisions of article two, chapter forty-three of this Code, or such land may be sold free and clear of inchoate dower under the provisions of section five, article one, chapter forty-three of this Code.(Code 1849, c. 128, §9; Code 1860, c. 128, §9; Code 1868, c. 83, §8; Code 1923, c. 83, §8.)

§9. Release of Dower Under Order of Court; Conveyance Without Joinder of Spouse.—If the spouse of an infant or insane or convict husband or wife wish to sell real estate and to have the right of dower of such incompetent therein leased to the purchaser, he or she may petition for that purpose the circuit court of the county in which such estate or some part thereof is, and if it appear to the court to be proper, an order may be made for the execution of such a release of dower, by a commissioner to be appointed by the court for the purpose, which release shall be effectual to pass such right of dower. And in making such order the court shall secure to such infant or insane or convict spouse, a sum in gross, computed according to the provisions of article two, chapter forty-three of this Code as compensation for such right of dower.(Code 1849, c. 128, §11; Code 1860, c. 128, §11; Code 1868, c. 83, §10; 1889, c. 31, §10; 1911, c. 44, §10; Code 1923, c. 83, §10.)

§10. Proceeds of Sale to Descend as Lands.—What may be received under this article for the real estate of an infant or insane person, sold or divided, or so much thereof as may remain at his death intestate, shall, if he continue till his death incapable of making a will, pass to those who would have been entitled to the land if it had not been so sold or divided.(Code 1849, c. 128, §12; Code 1860, c. 128, §12; Code 1868. c. 83, §11; Code 1923, c. 83, §11.)

§11. Summary Proceedings for Sale, Lease or Mortgage; Petition.—In addition to the proceedings authorized by the second section of this article, the guardian of any minor, or the committee of any insane person or convict, if he deem that the interests of his ward or insane person or convict will be promoted by a sale, lease or mortgage of, or trust deed upon, his estate, or of any estate in which he with others, infants or adults, is interested, whether the estate of the minor, or insane person or convict, or of any of the other persons interested, be absolute or limited, and whether there be or be no limited thereon any other estate, vested or contingent, may apply by petition, in a summary way, to the circuit court of the county in which the estate proposed to be sold, leased or encumbered, or some part thereof may be, describing all the estate, real and personal, belonging to the minor, or insane person or convict and setting forth plainly all the facts calculated to show the propriety of the sale, lease, mortgage or deed of trust. The petition shall be verified by the oath of the plaintiff, and all persons interested shall be made defendants, and ten days' notice shall be given to such defendants before such petition can be heard.(Const. 1863, art. 11 §3; Code 1868, c. 83, §12; Const. 1872, art. 6, §39; 1897, c. 28, §5; Code 1923, c. 83, §12.)

§12. Guardian Ad Litem in Summary Proceeding.—For every such minor or insane person or convict the court shall appoint a guardian ad litem who must be present at the hearing of the summary proceeding mentioned in the preceding section.(Code 1868, c. 83, §13; 1897, c. 28, §13; Code 1923, c. 83, §13.)

§13. Order; Sale.—If it be clearly shown by the petition, exhibits, and evidence adduced, that the interest of the minor or insane person or convict will be promoted by the sale, lease or encumbrance by mortgage or trust deed, and the court be of opinion that the rights of no person will be affected thereby, it may order such estate, or any part thereof, to be sold, leased, or encumbered by mortgage or trust deed; and in such manner and on such terms and in such parcels as may be deemed most beneficial to the minor or insane person or convict; and, in case the same be decreed to be sold, shall take from the purchaser bond, with ample security, when the sale is on credit. And, in case of sale or lease, the same may be decreed to be made either at public or private sale or lease. At such sale or lease neither the guardian, committee, nor guardian ad litem shall be a purchaser directly or indirectly. But no estate of any minor or insane person or convict shall be sold contrary to the provisions of any will or conveyance by which such estate was devised or granted to such person, if such provision would be valid if contained in a conveyance or devise to a person suijuris.(Code 1868, c. 83, §14; 1897, c. 28, §14; Code 1923, c. 83, §14.)

§14. Bond for Proceeds.—In case such sale or lease be made, the guardian or committee shall in open court enter into bond, with approved security, in penalty equal to double the value of the estate to be sold, conditioned for the faithful application of the proceeds of sale or lease. And in case of a mortgage or trust deed such guardian or committee shall enter into bond with approved security in a penalty equal to double the amount of any moneys which may come into his hands from the mortgaging or encumbrancing of the same by trust deed, conditioned for the faithful application of such moneys. And in either case such bonds shall be payable to the State, and the court may thereafter order a new bond, with other security, to be given if deemed necessary.(Code 1868, c. 83, §15; 1897, c. 28, §15; Code 1923, c. 83, §15.)

§15. Application of Proceeds; Costs.—The provisions of section seven of this article shall govern as to the application of the proceeds of sale. The costs of the proceedings may be paid out of such proceeds, but no attorney’s fee shall be taxed therein.(1865, c. 38, §10; Code 1868, c. 83, §16; Code 1923, c. 83, §16.)

§16. Confirmation; Conveyance.—Whenever a sale, lease, mortgage or trust deed is ordered as herein provided, the court shall order the proceedings under such sale, lease, mortgage or trust deed, to be reported for confirmation; and, in case of sale, may direct a conveyance with covenant of special warranty to be made by the guardian, the committee or a commissioner. And every such conveyance shall be as effectual in law as if the same were made by the minor when of lawful age, or by the insane if compos mentis, or by the convict if competent; and, in case of a lease, the court shall direct the same to be made by the guardian or committee applying for the same, and to be reported to the court for confirmation. And, in case of a mortgage or trust deed, the guardian or committee, as the case may be, shall report to the court in full particulars concerning the making of such mortgage or trust deed and the moneys received under the same.(Code 1868, c. 83, §17; 1882, c. 38; 1897, c. 28, §17; Code 1923, c. 83, §17.)

§17. Validation of Previous Sales.—No sale of the real estate of an infant or insane person heretofore made and confirmed, under and by the judgment, order, or decree of a court of competent jurisdiction, nor any conveyance of such real estate made or to be made under any such judgment, order, or decree, shall in any manner be affected or invalidated by reason of the bill or petition in the case not having been verified, or by reason of the persons who would be the heirs or distributees of such infant or insane person, if he were dead, not having been made parties to the suit or proceedings, or by reason of any other error or defect in the proceeding or deed, not affecting the very right of the case. And all such sales and conveyances are hereby legalized and made valid.(Code 1868, c. 83, §18; Code 1923, c. 83, §18.)

§1. When Property Shall Escheat.—Whenever any person shall die intestate and without any heir or next of kin, owning real estate or personal property within this State, the title of such deceased person therein shall escheat to the State.

§2. Escheat of Equitable Interests.—An estate vested in a person merely by way of mortgage or trust shall not escheat by reason of the mortgagee or trustee dying without heirs but any equitable title to or interest in lands shall escheat or be forfeited in the same manner as it would if the person having the equitable had the legal title.(Code 1849, c. 113, §26; Code 1860, c. 113, §25; Code 1868, c. 69, §24; Code 1923, c. 69, §24.)

§3. Tenants of Escheated Land.—If any person holds any escheated land or personal property for a term of years, or for life, or has a right to any rent or other profit, or has any other interest whatever in such land, he shall hold and enjoy his lease, rent, profit or other interest, and any sale of such land as escheated land, under the provisions of article three of this chapter, shall be made subject to such lease, rent, profit, or other interest.(Code 1849, c. 113, §27; Code 1860, c. 113, §26; Code 1868, c. 69, §25; Code 1923, c. 69, §25.)

§4. Escheator.—The assessor of each county shall by virtue of his office be the escheator of such county.(Code 1849, c. 113, §1; Code 1860, c. 113, §1; Code 1868, c. 69, §1; Code 1923, c. 69, §1.)

§5. List of Land by Escheator.—Each escheator shall annually, in September, prepare a list of all lands within his county, of which any person shall have died owning an estate of inheritance, intestate and without any known heir, or to which no person is known by him to be entitled, and transmit such list to the commissioner of school lands of his county, according to the provisions of section seven, article three of this chapter. If the state tax commissioner shall be of the opinion that other lands, not in cluded by the escheator in such list, should be so included, and shall so advise the escheator, in writing, the escheator shall place such lands upon such list.(Code 1849, c. 113, §4; Code 1860, c. 113, §3; Code 1868, c. 69, §2; Code 1923, c. 69, §2.)

§1. Forfeiture of Lands for Nonentry; Tracts of One Thousand Acres.—It shall be the duty of every owner of land to have it entered on the land books of the county in which it or a part of it is situated, and to cause himself to be charged with the taxes thereon and pay the same. When for any five successive years after the year eighteen hundred and sixty-nine, the owner of any tract of land containing one thousand acres or more, shall not have been charged on such books with a state tax on such land, then, by operation of law and without any proceedings therefor, the land shall be forfeited and the title thereto vested in the State. But if for any one or more of such five years the owner shall have been charged with state tax on any part of the land, such part thereof shall not be forfeited for such cause. And any owner of land so forfeited, or of any interest therein, at the time of the forfeiture thereof, who shall then be an infant, or insane person, may, until the expiration of three years after the removal of such disability, have the land, or such interest therein, charged on such books, with all state and other taxes that shall be, and but for the forfeiture would be, chargeable on the land or interest therein for the year eighteen hundred and sixty-three, and every year therafter, with interest at the rate of ten per cent per annum, and pay all taxes and interest thereon for all such years, and thereby redeem the land or interest therein or any part thereof: Provided, That such right to redeem shall in no case extend beyond twenty years from the time such land was forfeited.(Const. 1863, art. 9; Const. 1872, art. 12, §§4, 5, art. 13, §6; 1865, c. 92; 1872-3, c. 134; 1882, c. 95; 1891, c. 94; 1893, c. 24; Code 1923, c. 31, §39.)

§2. Forfeiture of Tracts of Less Than One Thousand Acres.—When for any five successive years since the ninth day of April, eighteen hundred and seventy-three, the owner of any tract or lot of land, less in quantity than one thousand acres, shall not have been charged on such books with state tax on such land, then, by operation of law and without any proceedings therefor, the land shall be forfeited and the title thereto vested in the State. But if, for any one or more of such five years, the owner shall have been charged with state tax on any part of the land, such part shall not be forfeited for such cause. If the owner of any such tract or lot of land, or any person having an interest therein, shall at the time of the forfeiture thereof be an infant or insane person, he may redeem such land or interest therein, or any part thereof, in the same manner and within the same time as is hereinbefore provided in section one of this article in regard to tracts of one thousand acres or more.(1865, c. 92; 1872-3, c. 134; 1882, c. 95; 1891, c. 94; 1893, c. 24; Code 1923, c. 31, §39.)

§3. Lands Subject to Sale.—All lands in this State, waste and unappropriated, or heretofore or hereafter for any cause forfeited, or treated as forfeited, or escheated to the State of Virginia or this State, or purchased by either and become irredeemable, not redeemed, released, transferred or otherwise disposed of, the title whereto shall remain in this State till such sale as is hereinafter mentioned be made, shall, by proceedings in the circuit court of the county in which the lands or a part thereof are situated, be sold to the highest bidder for the benefit of the school fund, in the manner hereinafter provided.(Const. 1863, art. 9; Const. 1872, art. 13; 1865, c. 92, §3; 1872-3, c. 134, §1; 1882, c. 95, §1; 1891, c. 94, §1; 1893, c. 24; Code 1923, c. 105, §1.)

§4. Commissioner of School Lands.—The circuit court of every county shall, at its second regular term in the year nineteen hundred and thirty-three, and in every fourth year thereafter, appoint a commissioner of school lands, whose term shall continue for four years and until his successor is appointed and qualified. Every such commissioner holding office at the time this Code takes effect shall continue to hold office until his successor is appointed and qualified under the provisions of this section. Vacancies occurring at any time after the adoption of this Code shall be filled by appointment by the circuit court for the unexpired term. Such commissioner shall perform the duties and exercise the powers hereinafter provided for. Every such commissioner shall, before entering upon the duties of his office, take an oath in open court that he will faithfully, to the best of his skill and judgment, execute the duties of his office, and shall give bond with good security to be approved by the court, in a penalty to be fixed by the court, but at least of two thousand dollars, conditioned that he will faithfully and impartially discharge the duties of his office, and will pay over and account for, according to law, all moneys, bonds and other securities, which may come to his hands by virtue of his office. He shall, as far as possible, see that every officer, having any duty to perform under this chapter performs the same as therein required, and report any failure of any such officer to do so to the circuit court of his county. The court may, whenever in its opinion it is proper to do so, require such commissioner to give a new or additional bond, as prescribed by section fourteen, article two, chapter six of this Code, and all provisions of said section, and of sections fifteen and sixteen of said article shall be applicable to such new or additional bond when given.(1872-3, c. 134, §§2, 7; 1882, c. 95, §4; 1891, c. 94, §4; 1893, c. 24, 54; 1904, c. 18; Code 1923, c. 105, §4.)

§5. Record of Forfeited Lands.—A record of all real estate forfeited for any cause to the State of West Virginia under the Constitution and laws thereof, or purchased for the State at a sale for taxes, and not redeemed or released according to law, which has or shall come to the knowledge of the auditor of the State, shall be kept by him in a well-bound book in his office, in which shall be shown the name of the former owner thereof, if known, and, if not, that fact shall be stated, the quantity or supposed quantity of such real estate, the local or other description thereof, as certified to him, for what years the owner thereof was not charged with taxes thereon, and when such real estate be came forfeited. Such record shall be prima facie evidence that the owner of such real estate was not charged with taxes thereon for any of the years stated therein and that he did not cause such real estate to be entered and charged with taxes as required by law, and that such real estate was forfeited, and the title thereto vested in the State at the time specified. In order to enable the auditor to make such record it shall be the duty of the clerk of the county court of each county in which any such real estate ought to have been, but was not, entered on the land books and charged with the taxes thereon, upon discovering any such failure, to certify the same, and all the facts in relation thereto, to the auditor; and a duplicate of such certificate shall be filed in his office and recorded in the book mentioned in section twelve, article ten, chapter eleven of this Code. The auditor shall certify, to the commissioner of school lands of the proper county, copies of all the certificates of any such clerk received by him within sixty days after receiving the same, except lands purchased for the State at a sale thereof for taxes, which shall be certified by the auditor to the commissioner of school lands immediately after the expiration of twelve months from the date of such purchase.(1882, c. 95, §3; 1891, c. 94, §3; 1893, c. 24; Code 1923, c. 105, §2.)

§6. Report of County Surveyor.—It shall be the duty of the surveyor of each county in this State, as soon as the same shall come to his knowledge, to report to the commissioner of school lands, all waste and unappropriated and forfeited lands in his county, except the lands under the bed of the Ohio river or any other navigable stream, subject to sale under the provisions of this article, designating particularly the quantity of the tract or parcel, and the local situation thereof, together with all information he can procure in relation to the same, and of any claim of title thereto.(1872-3, c. 134, §3; 1882, c. 95, §2; 1891, c. 94, §2; 1893, c. 24, §4; Code 1923, c. 105, §3.)

§7. Report of Escheator.—It shall be the duty of the escheator of each county in this State to furnish to the commissioner of school lands, a copy of the list which he is required by the provisions of section five, article two of this chapter to prepare, showing all lands within his county of which any person shall have died owning an estate of inheritance, intestate and without any known heir, and which have, therefore, become escheated to the State.

§8. Report by Commissioner to Circuit Court.—The commissioner of school lands of each county shall tender and file a written report to the circuit court of his county from time to time and, at least once in each year, a list of all tracts and parcels of land, lying in whole or in part in his county, reported to him by the auditor and surveyor and escheator as required by sections five, six and seven of this article, or which shall otherwise come to his knowledge, which in his opinion are liable to be sold for the benefit of the school fund.

The commissioner of school lands, in such report as herein provided for, shall show, as far as practicable, the following:

(a) The name of the party, parties, firms or corporations claiming title to such land at the time such report is made; the number of the lot or acres as the case may be; the town, city, district, road, street or waters, in or on which such real estate is located, and such other description as may reasonably be given in such report that will aid in identifying or locating the land and the years constituting such forfeiture; the name or names of all known claimants, or adverse claimants, and all known occupants of such real estate, or any part thereof;

(b) If such report describes any real estate as waste and unappropriated, such report shall also state that such tracts of real estate were waste and unappropriated and that the title thereto had not passed from the Commonwealth of Virginia or the State of West Virginia, and the names of all claimants or occupants thereof;

(c) If such report describes any real estate as escheated, the report shall also state that such tracts of real estate were escheated to this State by reason of the owner named therein having died intestate and without any heir, owning an estate of inheritance which shall be specifically described in such report.(1882, c. 95, §5; 1885, c. 46, §5; 1891, c. 94, §5; 1893, c. 24, §5; 1921, c. 81, §5; Code 1923, c. 105, §5.)

§9. Transmission of Report to Clerk of County Court.—When the report mentioned in the preceding section is filed, the clerk of the circuit court shall transmit to the clerk of the county court of such county an attested copy of such report, which shall be by the clerk of the county court recorded in his office in a well-bound book, which shall be labeled on the back thereof ‘‘report of commissioner of school lands.” Such clerk of the county court shall index each tract or parcel of land so reported in the name of the party or parties from whom the same became forfeited; or, if such parcel or parcels an should be waste and unappropriated, the same shall be indexed as to their location; or, if such parcel or parcels should be escheated, the same shall be indexed as to the person from whom such lands escheated, and if the name of such person be unknown then as to their location.

In any suit pending in the circuit court upon report made by the commissioner of school lands, when redemption of a tract or parcel of land has been made under a decree of such court, or where a tract or parcel of land has been decreed and sold, or where the court has decreed a tract or lot of land not forfeited to the State as waste of and unappropriated, or not escheated to the State, the clerk of such court shall, after each term thereof, report each tract or parcel of land so adjudicated by such court, to the clerk of the county court, who shall, upon the copy of such a report so recorded in his office, in the marginal space therein to be provided therefor, note in red ink opposite each tract the disposition thereof made by any decree, showing the date of such decree and its purport in respect to such tract by the words, “redeemed,” “decreed and sold ” or “not liable to sale,” as the case may be.[1921, c. 81, §5(b); Code 1923, c. 105, §5.]

§10. Suit for Sale of Lands.—Every such report shall be recorded in the chancery order book of such court and filed and preserved by the clerk of such court in his office, and thereupon a suit or suits in chancery shall be commenced and prosecuted, by and in the name of the State of West Virginia, for the sale of every such tract and parcel of land, so reported, as required by section four of article thirteen of the Constitution of this State. All tracts or parcels of land mentioned in such report, which are claimed to have escheated shall be proceeded against in a separate suit. All other tracts or parcels of land mentioned in any such report may be included in one suit, but a separate suit may be brought and prosecuted for the sale of each tract of land exceeding in quantity one thousand acres; and the former owner of any such tract of land at the time of the forfeiture thereof, or the person in whose name the same is forfeited, shall, if known, be made a defendant therein, and all persons claiming title to or interest in any such lands shall also, as far as known, be made defendants herein. And there shall be filed as an exhibit with such bill, which shall be treated as part of the allegations thereof, a certified copy of the commissioner’s report mentioned in section eight of this article. And any person claiming an interest in any such land or in the proceeds thereof, not so made defendant, may file his petition in any such suit stating what interest he claims therein, either in open court or before a commisioner in chancery, while the suit is pending before him, or at rules, if the case be pending at rules, and shall thereupon become a defendant therein, and may defend and protect his interest, if he has any therein, to the same extent as if he had originally been made a party defendant therein.(1882, c. 95, §5; 1885, c. 46, §5; 1891, c. 94, §§5, 6; 1893, c. 24, §6; 1905, c. 2, §6; 1921, c. 81, §6; Code 1923, c. 105, §6.)

§11. Sale of Land Formerly Sold.—Any tract of land which has heretofore been forfeited, or treated as forfeited, waste and unappropriated, or escheated to the State of Virginia or this State, and which has been sold and conveyed, or purported to be conveyed, as such, under a decree or order of the circuit court in any suit or proceeding under this article, or under chapter one hundred and five of the Code before this revision, or any other act, at any time since the year eighteen hundred and seventy-two, or which any instrument executed under such decree or order purports to convey, shall not again be proceeded against, sold or redeemed in any suit or proceeding now pending under said chapter, or hereafter brought under this article, or otherwise, unless since the execution of such conveyance, purported conveyance or instrument, such tract of land has become forfeited for nonpayment of taxes charged or chargeable thereon since the execution of such conveyance or instrument, or nonentry on the land books of the proper county, in the name of the purchaser thereof, his heirs, devisees or assigns, or has escheated to the State.(1905, c. 42, §6; 1921, c. 81, §6; Code 1923, c. 105, §6.)

§12. Proof in Proceedings Against Land Formerly Sold.—In any suit for the sale of lands brought under the provisions of this article, or pending under the provisions of chapter one hundred and five of the Code prior to the enactment of this revision, or under any other statute, if any party to the suit shall file an instrument or conveyance, or a certified copy from the record thereof, whereby the tract shall have been sold or conveyed under a decree or order of the circuit court, under the provisions of this article, or any other statute, since the year eighteen hundred and seventy-two, as for feited, waste and unappropriated, or escheated to the State of Virginia or this State, or shall file in such suit any letters patent or a certified copy thereof, issued by the governor of Virginia or West Virginia, granting the tract sought to be sold, or any part of such tract, then it shall be come necessary for the State by amendment of its bill, or for some other claimant of such land, by answer or petition filed for the purpose, at or before the next regular term of the court in which the proceeding is pending, to allege and prove, by a certificate of the auditor of the State, or of the clerk of the county court of the county where such tract or parcel of land or the greater part thereof lies, that such tract or parcel of land has since the date of such patent, grant, conveyance or instrument, become and remained forfeited to the State in the name of such patentee, grantee, or purchaser, his heirs, devisees or assigns, or has since such date, become escheated. In the absence of such allegation and proof by the State or some other claimant, the circuit court shall not permit any portion of such land embraced in such prior patent, grant, conveyance or instrument, filed in such suit, to be sold in such proceeding, or permit the same to be redeemed by any party to such proceeding, but shall thereupon enter an order dismissing the proceeding as to and against so much of the land therein proceeded against as may be embraced in the bounds of such patent, grant, conveyance or instrument so filed as afore said.(1905, c. 42, §6; 1921, c. 81, §6; Code 1923, e. 105, §6.)

§13. Effect of Possession and Payment of Taxes.—Whenever it shall appear to the court, by motion or otherwise, in any such suit now pending, or that may be hereafter brought, that any parcel or tract of land, or any part thereof, mentioned or claimed in the suit as forfeited or escheated to the State of Virginia or this State, or as waste or unappropriated, has been in the actual continuous possession, under color or claim of title, for ten years, of any person who or those under whom he claims shall have paid the state taxes thereon for any five years during such possession, or if it shall appear that any parcel or tract of such land mentioned or claimed in the suit, to which any person shall have claim, or title to, regularly derived, mediately or immediately from or under a grant from the Commonwealth of Virginia or this State, not forfeited, which but for the title forfeited, would be valid, and who, or those under whom he claims has, or shall have paid all state taxes charged or chargeable thereon for five successive years, after the year eighteen hundred and sixty-five, or from the date of the grant, if it shall have issued since that year, or if it shall appear that any parcel or tract of such land mentioned or claimed in the suit to which any person has had claim to and actual continuous possession of, under color of title, for any five successive years after the year eighteen hundred and sixty-five, and on which all state taxes charged or chargeable for such period of five years have been paid, the court shall thereupon enter an order dismissing the suit as to any such parcel or tract of land, and proceed no further against the same.(Const., art. 13, §3; 1905, c. 42, §6; 1921, c. 81, §6; Code 1923, c. 105, §6.)

§14. Dismissal Upon Report of Commissioner of School Lands.—If at any time during the pendency of any suit for the sale of school lands, whether now pending or hereafter brought, the commissioner of school lands of the county where such suit was or may be instituted shall become satisfied that part or the whole of the land sought to be sold therein is not liable to sale for the benefit of the school fund, such commissioner shall report in writing to the court the facts and reasons which lead him to that conclusion, which report shall be filed and made part of the record; and if the court, upon consideration thereof, and ” upon such inquiry as it may make, shall concur in such report, in whole or in part, it shall confirm the same to that extent, and shall dismiss such suit as to the lands embraced in such report as far as it may be confirmed.(1905, c. 42, §6; 1921, c. 81, §6; Code 1923, c. 105, §6.)

§15. Defendants Claiming Under Separate Titles.—Where two or more defendants contend for, ask to redeem or assert and claim title to, the same land, or any part thereof, under separate, distinct and hostile titles, the one, or ones, failing to sustain his or their claim, or to uphold his or their title, shall be liable to the defendant, or defendants, sustaining his or their claim, and prevailing as to his or their title, for costs, and the court shall decree the same accordingly.(1921, c. 81, §6; Code 1923, c. 105, §6.)

§16. Deposit of Costs by Nonresident Party.—Before any nonresident defendant or petitioner, as is mentioned in this article, shall be permitted to file his answer or petition, as provided herein, he shall deposit with the clerk of such circuit court a sum of money sufficient to cover any costs that might be decreed against him, or give bond with security, to be approved by the court or clerk, for the payment thereof, the amount of such deposit and the penalty of such bond to be fixed by the court.(1921, c. 81, §6; Code 1923, c. 105, §6.)

§17. Mandatory Provisions.—The provisions of this article as to the filing of any amendments to the plaintiff’s bill, the defendant’s answers, petitions and amendments thereto, the dismissal of the plaintiff’s suit upon the conditions herein specified, the recovery of costs and the security therefor by nonresidents shall be construed as mandatory.(1921, c. 81, §6; Code 1923, c. 105, §6.)

§18. Procedure.—All suits brought and prosecuted under the provisions of this article shall be commenced as provided in article three, chapter fifty-six of this Code and proceeded in, heard and determined in the same manner, and in all respects, as other suits in chancery are brought, prosecuted and proceeded in, and shall be subject to the same rules of chancery practice as other suits in chancery in the state courts of this State, except as herein otherwise provided. In all cases where an order of publication is issued, there shall be therein set out the number of tracts in which nonresidents are interested as owners or claimants, with a general description as to location and quantity of each.(1891, c. 94, §7; 1893, c. 24, §7; Code 1923, c. 105, §7.)

§19. Reference to Commissioner in Chancery; Notice, Report and Hearing.—If the court shall be of the opinion that any party to such suit has a clear right of redemption in any land involved in such suit, a decree of reference need not be made as to such land. In all other cases, a decree of reference shall be made. When a decree of reference is made in any such suit, the commissioner before proceeding to the discharge of his duties, under such decree, shall give notice to all the parties to such suit and to all unknown owners and claimants of the lands, or any part of them, mentioned in the bill, by publication in some newspaper printed in the county in which the suit is brought, or if no such paper be printed therein, then in some newspaper of general circulation in such county, once in each week for four successive weeks, and by posting at the front door of the courthouse of such county, at least four weeks before proceeding to discharge his duties under such decree, of the time and place at which he will so proceed. And such notice when so published and posted shall be equivalent to the personal service thereof on all the parties to the record in such suit, and on all unknown owners and claimants of any tract or parcel of land mentioned in the bill, or any part thereof. Such notice may be in form or effect as follows:

The State of West Virginia, vs. A., B., C., D., Etc., (naming all the defendants mentioned in the bill).

The plaintiff and each and all of the above named defendants, and all unknown owners and claimants of any part or parcel of the following tract (or tracts) of lands (here give a general description of each tract of land proceeded against and give the name and the last address, if any, known to the commissioner, of the owner or owners in whose name such land is alleged in the bill to be forfeited) mentioned in the plaintiff’s bill in the above styled cause, will take notice that, on the...................day of................., 19...., at.................................., in the county of ...................................., I will commence the discharge of my duties under a decree of reference entered in said cause on the........day of............., 19.........., directing me to ascertain and report (here insert what is required by the decree to be ascertained and reported) at which time and place, you, and each of you, can attend and protect and defend any interest you may have in the lands, or any of them, in question in this suit.

Given under my hand this .... day of ..... ..............,19........

............., Commissioner.(1882, c. 95, §6; 1891, c. 94, §8; 1893, c. 24, §8; Code 1923, c. 105, §8.)

§20. Execution of Reference.—The commissioner shall proceed with all reasonable diligence in the discharge of his duties under such decree, and he may make and file his report as to any one or more of the tracts, or parts thereof, mentioned in the bill, at any time, without waiting to complete his report as to the whole of such tracts.(1882, c. 95, §7; 1891, c. 94, §9; 1893, c. 24, §9; Code 1923, c. 105, §9.)

§21. Hearing on Report.—If there be no exception to such report, or if there be exceptions thereto which are overruled, the court shall confirm the same, and decree a sale of the lands, or any part of them, therein mentioned which are subject to sale for the benefit of the school fund, at public auction to the highest bidder, upon such terms and conditions as, in the opinion of the court, will produce the greatest amount of purchase money. And the court may decree the sale of any one or more of the tracts, parcels, lots, or parts of tracts or lots, mentioned in the bill, without waiting the termination of the suit as to the other lands mentioned therein. When exceptions are sustained to such reports, the same proceedings shall be had therein as in other suits in chancery.(1872-3, c. 134, §4; 1882, c. 95, §8; 1885, c. 46, §8; 1891, c. 94, §10; 1893, c. 24, §10; Code 1923, c. 105, §10.)

§22. Sales by Commissioner.—Every such sale shall, unless the court otherwise order, be made by the commissioner of school lands, upon terms, conditions and notice, provided for in the decree of sale. The commissioner making such sale shall take from the purchaser of each parcel of land so purchased his notes with good security, payable to the State of West Virginia, for the deferred payments of purchase money provided for in the decree of sale, with interest from date thereof, and shall make report thereof to the court which decreed the sale, in which he shall state the name of each purchaser and the particular tract or tracts, lot or lots, or part or parcels, of any tract or lot purchased by him, and the quantity, as near as may be, so purchased by such purchaser; the amount of the purchase money of each tract, lot or parcel, or the part thereof so purchased; the amount of the purchase money paid on each at the time of the purchase, and the amount of the notes taken for the residue of the purchase money; the name of the surety in such notes and the time at which they will become due and payable; the gross amount of money in hand arising from such sales, and the cost and legal expenses thereof, exclusive of his commissions. He shall return with his report all notes and securities taken by him for the purchase money of the real estate sold by him, and the clerk of the court shall indorse thereon the day they will respectively become due and payable, and file and preserve the same in his office; and such notes and securities shall be a lien upon the real estate for which they were given; and, if not paid when due, the clerk shall, without process or further proceeding, enter in the law order book a judgment, against the makers and obligors therein and sureties thereon, in favor of the State of West Virginia, upon such note for the amount remaining unpaid, with interest. Such judgment shall be as final and valid as if entered by the court, except only that the court shall have such control of it as is given by article two, chapter fifty eight of this Code.

Execution may issue upon such judgment, or a rule may be awarded and the land resold as in other chancery suits.(1872-3, c. 134, §5; 1879, c. 63; 1882, c. 95, §9; 1885, c. 46, §9; 1891, c. 94, §11; 1893, c. 24, §11; Code 1923, c. 105, §11.)

§23. Form of Judgment on Notes.—The judgment entered by the clerk under the provisions of the preceding section shall be in the following form or to the following effect:

Whereas on the.... day of......, 19...., a decree was rendered by the Circuit Court of ............................County, West Virginia, that certain lands, to-wit (here describe the lands for which the notes were given), be sold by......................................., the commissioner of school lands for said county, and

Whereas said commissioner did, pursuant to such decree, on the ....day of............., 19...., sell said lands to................................at a price of............................dollars, of which............... dollars was paid in cash, and for the balance of which...............interest bearing notes dated on the.........day of..........., 19...., payable to the State of West Virginia, one for the sum of .........dollars, payable on the .... day of ...., 19...., and another for.........dollars, payable on the...................day of..........., 19...., were executed by......................., the purchaser, with.................as surety thereon, and

Whereas the note falling due on the.......... day of........................, 19...., remains unsatis fied and it appearing therefrom that the principal and interest remaining due and unpaid amounts to...................dollars,

Now therefore in pursuance of the statute in such cases made and provided, it is ordered that the State of West Virginia do recover of ............................and............................the sum of ..................dollars. Given under my hand this, day of.................. 19....…

………………

§24. Compensation of Commissioner and Attorneys.—Every commissioner of school lands shall, unless the court otherwise order, collect the proceeds of all sales of school lands made as aforesaid, and for his services as such commissioner he shall receive the following compensation, to–wit: For all moneys collected and paid over by him as such commissioner, a commission of not less than five nor more than ten per cent on the amount thereof; for each deed to a purchaser of any part of such lands, his heirs, devisees or assigns, and for each report made and filed by him, to be taxed as part of the costs, five dollars; and if such commissioner be a practicing attorney, and shall prosecute suits for the collection of the purchase money of the land so sold, he shall have the attorney’s fee taxed in the costs of such cases for the State, if they be collected from the defendant, but not otherwise; and if he be not a practicing attorney, such suits shall be prosecuted by an attorney employed by him to prosecute the suit for the sale of the lands for the State. But the money recovered shall be collected and accounted for, unless the court otherwise order, by the commissioner of school lands. The court, in which any such suit is prosecuted, shall allow the attorney prosecuting the same for the State a fair and reasonable compensation for all the services rendered by him therein for the State, including the regular statute fees, and the same shall be paid him out of the proceeds of the lands sold in every such suit. And in addition to the compensation above allowed the commissioner of school lands, he shall be allowed all reasonable and proper expenses necessarily incurred and actually paid by him in the proper discharge of the duties of his office under this article, to be fixed and adjusted by the court upon the production of vouchers, showing the amount paid, and upon what account. And in case of the redemption of any such real estate by the former owner thereof, as provided in section twenty-nine of this article, such commissioner shall be entitled to the same commissions on the money so paid, as if such real estate had been sold, and the proceeds thereof collected by him.(1872-3, c. 134, §11; 1882, c. 95, §10; 1891, c. 94, §12; 1893, c. 24, §12; Code 1923, c. 105, §12.)

§25. Costs; Proceeds of Sales; Commissioner May Not Purchase.—The cost of every such suit shall be ascertained and taxed by the clerk as in other chancery cases, and shall be paid out of the proceeds of the sales of such real estate, and not otherwise, to the several persons entitled thereto, if sufficient for the purpose; but if such proceeds are not sufficient to pay the whole of such costs and commissions and the expenses aforesaid of the commissioner of school lands, the same shall be paid therefrom to the several persons entitled thereto pro rata. If the residue of such proceeds after the payment of such costs, and commissions and expenses of the commissioner of school lands, as provided in the next preceding section, be sufficient to pay all the State, county, municipal and district taxes that may be due on such lands, such commissioner of school lands shall, when ordered by the court to do so, pay any taxes on such lands that may be due to the county, municipality and district in which the real estate is situated, to the sheriff of such county and into the treasury of such municipality, and he shall pay the balance of such proceeds into the treasury of the State, for the benefit of the school fund; but if such proceeds are not sufficient to pay all the taxes aforesaid, then they shall be paid to such sheriff and into the treasury of such municipality and of the State pro rata; and such sheriff, in either event, shall, at his regular settlements with the county court and the respective boards of education of his county, account for and pay over all money paid to him under the provisions of this chapter. Any commissioner of school lands, who shall fail to pay over and account for any moneys which shall come into his hands and possession, when thereto lawfully required, shall be deemed guilty of larceny, or, at the discretion of the court, be fined not exceeding double the amount he so failed to pay and account for, and be imprisoned in the county jail not exceeding one year. And no commissioner of school lands shall become the purchaser of any school lands at the sale thereof, or be interested therein, and upon so doing shall forfeit his office and at the discretion of the court be fined not exceeding five hundred dollars.(1872-3, c. 134, §11; 1882, c. 95, §11; 1883, c. 38; 1890, c. 12, §11; 1891, c. 94, §13; 1893, c. 24, §13; Code 1923, c. 105, §13.)

§26. Report of Commissioner.—The commissioner of school lands of each county shall report to the circuit court of his county an itemized account of his receipts and disbursements, if any, for the preceding year, at such term of such court as may be fixed by an order entered of record therein. Such report shall be referred by an order entered to a special commissioner appointed by the court for the purpose, who shall settle, state and report such account in the same manner as accounts are settled and stated in other cases, and report the same to the court; or if he finds the account so referred to him to be correct, he may so report without restating the same. And, whenever any such report is confirmed by the court, it shall be the duty of the clerk thereof to forward to the auditor a duly certified copy of such accounts, and of the order confirming the same, and to certify to the clerk of the county court the amount to be paid to the sheriff for the county and to the several boards of education of his county, the amount to be paid into the treasury of the municipality, and the amount to be paid to the sheriff for the district and on account of what fund. The commissioner of school lands shall at the time of making such report also make a report to the auditor, setting forth all the tracts of land in his hands that have been forfeited to the State, giving a full description of the same as follows: The names of the parties in whose names the land was forfeited; the number of acres; the years for which the taxes were unpaid and for which the land was returned delinquent and subsequently purchased by the State; the amount of taxes reported by the auditor at the time, it was purchased by the State; what action has been taken by him in regard thereto. He shall also report, in like manner, all lands for which he has instituted proceedings in the name of the State for lands forfeited to the State by reason of not being on the land books for five years or more, and all lands which have escheated to the State. He shall also report the amount then in his hands due the State, the county and any district or municipality. The report hereby required to be made to the auditor shall be made upon a blank form to be furnished by the auditor. Every commissioner failing to make any report required by this section shall be guilty of a misdemeanor and be fined not less than one hundred nor more than one thousand dollars, and be removed from office. It shall be the duty of the state tax commissioner to take steps to enforce the provisions of this section, and to collect any moneys which any commissioner of school lands may have received and have failed to pay to the State or county, or any district or municipality, after he should have done so.(1879, c. 63, §8; 1890, c. 12, §15; 1891, c. 94, §14; 1893, c. 24, §14; 1904, c. 18, §14; Code 1923, c. 105, §14.)

§27. Deed to Purchaser.—When the whole of the purchase money of any tract or lot of land, or any part or parcel of a tract or lot, purchased by any person at any such sale, with the interest due thereon and the costs, if any, incurred in the collection thereof, is fully paid, the commissioner of school lands, or other commissioner making the sale, shall convey to the purchaser, his heirs, devisees, or assigns, or to such persons as he or they may direct, to be evidenced by him or them joining in such deed by a proper deed, all the right, title and interest of the State of West Virginia, in and to the real estate thereby conveyed, which passed to and vested in the State, under the Constitution and laws thereof, by reason of the forfeiture of such real estate, or otherwise, which remained in the State at the time of the decree for the sale thereof, regardless of whether the same was sold and purchased as forfeited, escheated, or waste and unappropriated land. And if the commissioner fail or refuse to make such deed, the same may be made by another commissioner to be appointed by the court for that purpose.(1872-3, c. 134, §8; 1879, c. 63, §5; 1882, c. 95, §12; 1885, c. 46, §12; 1890, c. 12, §12; 1891, c. 94, §15; 1893, c. 24, §15; Code 1923, c. 105, §15.)

§28. Surplus Proceeds.—The former owner of any such land, his heirs, personal representatives or assigns, or any creditor having a lien on such land at the time of such forfeiture or escheat and still existing, shall be entitled to recover, in whole or in part, the excess of the sum for which the land may be sold over the taxes charged and chargeable thereon, or which, if the land had not been forfeited or escheated would have been charged or chargeable thereon since the formation of this State, with interest at the rate of twelve per cent per annum and the costs of the suit, if his claim be filed in the circuit court that decreed the sale, within one year after the sale is confirmed. Such former owner, his heirs, personal representatives or assigns, or any such creditor, may, within the time aforesaid, file his petition in the suit in such circuit court, stating in full his title to or lien upon such lands, accompanied by the evidence thereof, and upon full and satisfactory proof that, at the time the title to such land vested in the State, such former owner had a good and valid title thereto, legal or equitable, superior to that of any other claimant thereof, the court shall order the excess mentioned herein, or so much thereof as he may prove himself to be entitled to, to be paid to such owner, his heirs, personal representatives, assigns or creditors, as the case may be; and for of the purpose of ascertaining the same, the court may refer the several matters in question to a commissioner thereof; and upon a properly certified copy of such order being presented to the auditor, he shall draw his warrant on the treasury, in favor of such owner, his heirs, devisees, personal representatives, assigns, or such creditors for such excess. And every such suit shall remain upon the docket of the court for one year after the date of the decree confirming any sale of land therein mentioned, in order that opportunity be given for the filing of such petitions.(1872-3, c. 134, §12; 1882, c. 95, §13; 1891, c. 94, §16; 1893, c. 24, §16; Code 1923, c. 105, §16.)

§29. Redemption.—The former owner, his heirs, devisees or assigns, of any real estate forfeited for any cause to the State of West Virginia, may at any time during the pendency of the suit for the sale thereof, and before a decree for the confirmation thereof has been made and entered by the court, file his petition therein in manner and form as provided in the next preceding section in relation to the excess of the proceeds of such sale, praying to be allowed to redeem so much only of such real estate as to which the title still remains in the State; and upon the filing of such petition, and upon such proof being made as would entitle the petitioner to the excess of the purchase money of such real estate if the same had been sold, the court may, by a proper decree, permit the petitioner upon the payment into court, or to the commissioner of school lands, the costs, taxes and interest properly chargeable thereon, to be fixed by the court in its decree, to redeem the real estate mentioned in his petition. And upon such payment being made as aforesaid, the court shall enter its decree declaring the redemption of such real estate by such petitioner, so far only as the title thereto is in the State, as provided in this chapter, and so far as the petitioner has shown himself entitled to redeem the same; which decree shall operate as a release of such forfeiture of such real estate to the extent declared therein, and of all former taxes and interest charged and chargeable thereon. And such petitioner shall acquire no other title to the lands so redeemed than was vested in him immediately before such forfeiture, but such redemption shall in no wise affect or impair any right, title or interest any other person may have in such real estate or any part thereof, by purchase from the State, or under and by virtue of section three, article thirteen of the Constitution of this State.(1872-3, c. 134, §13; 1882, c. 95, §14; 1885, c. 46, §14; 1887, c. 17; 1891, c. 94, §17; 1893, c. 24, §17; Code 1923, c. 105, §17.)

§30. Venue; Suits by State in Own Name; Process and Other Writs.—All suits brought under the provisions of this article shall be in the county wherein the land sought to be sold or some part thereof is situated. Subject to the restrictions of this article, the State of West Virginia may in her own name commence, prosecute and maintain any action, suit or proceeding in respect to any such forfeited, waste and unappropriated or escheated lands as are hereinbefore mentioned, which an individual person might commence, prosecute and maintain in respect to his own lands. And in any action, suit or proceeding under this article, the court may award any necessary writ or process, including writs of possession, in order to carry its decrees and judgments into effect.(1891, c. 94, §21; 1893, c. 24, §21; Code 1923, c. 105, §21.)

§31. Jurisdiction of Court; Issues Out of Chancery.—In every such suit brought under the provisions of this article, the court shall have full jurisdiction, power and authority to hear, try and determine all questions of title, possession and boundary which may arise therein, as well as any and all conflicting claims whatever to the real estate in question arising therein; and the court, in its discretion, may at any time, regardless of the evidence, if any, already taken therein, direct an issue to be made up and tried at its bar as to any question, matter or thing arising therein, which, in the opinion of the court, is proper to be tried by a jury. And every such issue shall be proceeded in, and the trial thereof shall be governed by the law and practice applicable to the trial of an issue out of chancery; and the court may grant new trials therein as in other cases tried by a jury.(1891, c. 94, §18; 1893, c. 24, §18; Code 1923, c. 105, §18.)

§32. Bar of Final Decree.—Every final decree entered in any such suit shall be a bar to the claim of every person to the real estate, or any part of it or any lien thereon, or to the proceeds thereof, who has failed to appear and present his claim thereto as is provided in this article, except as to the excess of the proceeds of the sale thereof, as provided in section twenty–eight of this article, and except as provided by the last clause of section twenty-nine of this article.(1891, c. 94, §20; 1893, c. 24, §20; Code 1923, c. 105, §20.)

§33. Appeals and Writs of Error.—Appeals from, and writs of error or supersedeas to, the decrees, judgments and orders of the circuit court, rendered or made under the provisions of this article, may be had and taken and allowed as provided in article five, chapter fifty-eight of this Code, and all the provisions of this article, so far as applicable, shall apply to appeals, writs of error and supersedeas under this article.(1891, c. 94, §22; 1893, c. 24, §22; Code 1923, c. 105, §22.)

§34. Pending Suits; Former Sales and Conveyances.—All suits and proceedings for the sale of forfeited, waste and unappropriated and escheated lands, instituted since the twelfth day of March, eighteen hundred and ninety-one, and before the twenty-third day of February; eighteen hundred and ninety-three, shall he discontinued and dismissed, except as to the lands which have been sold therein; and the other lands mentioned therein which are liable to sale for the benefit of the school fund shall be proceeded against and sold under the provisions of this article. Whatever right, title, interest and estate the State of West Virginia had to any lands at the date of the sale or conveyance thereof, or instrument purporting to convey the same heretofore made by said State through and by the commissioner of school lands of any county, under an order or decree of the circuit court in any suit or proceeding under chapter one hundred and five of Barnes’ Code of nineteen hundred and twenty-three, however derived or claimed, shall be deemed and held to have passed to and vested in the grantee thereof whether the land so sold was proceeded against as forfeited, escheated, or as waste and unappropriated land, notwithstanding any irregularity or error in such proceeding or informality in such sale or conveyance or purported conveyance, or want of jurisdiction in the court to decree such sale. And all such sales and conveyances and purported conveyances are hereby confirmed and made good and valid. A copy of such conveyance or purported conveyance duly certified from the record thereof shall be evidence of such pro ceeding and sale. And, in the absence of an allegation and proof by the State to the contrary, it shall be presumed that such land so sold and conveyed, or purporting to be sold and conveyed, was entered upon the land books of the county where situated and has not become forfeited for any cause or liable to sale. And if such land so sold and conveyed, or purporting to be, was entered upon the land books after the recordation of such conveyance or purported conveyance and the grantee, his heirs, devisees or assigns, have paid all taxes assessed thereon since such entry for a period of at least five successive years and such land is not at the date this Code takes effect forfeited for any cause in the name of such grantee, his heirs, devisees or assigns, then all the right, title, interest and estate which the said State of West Virginia may, since such sale as aforesaid, have derived thereto under the Constitution and laws of the State, by the forfeiture or escheat of any other title or claim of title to such land or otherwise, shall be and is hereby granted and relinquished to such grantee, his heirs, devisees and assigns, and, in all such sales and deeds hereafter made under the provisions of this article, the purchaser of such lands, his heirs, devisees or assigns, who complies with the terms of the sale and obtains a deed for the lands so sold, shall be vested from and after the date of such deed with all title to such lands previously vested in the State immediately before; and it shall be the duty of every such court to make all necessary and proper orders and decrees to carry every such sale and purchase into full force and effect where the terms thereof have been or shall be fully complied with.(1891, c. 94, §19; 1893, c. 24, §19; 1905, c. 42, §19; Code 1923, c. 105, §19.)

§35. Recovery of Debts Against Escheated Lands; Limitation.—If any debt of a person whose lands escheated to the State at his death remain unpaid after all the personal estate of such person has been applied to the payment of his debts, the creditor may intervene in any proceeding by the commissioner of school lands under this article to sell such lands. If the court shall be of opinion that the said debt, or any part thereof, is due, the amount decreed to be due shall be paid by such commissioner to the creditor. If the proceeds of the sale shall have been paid into, and still remain in, the treasury of the State, or to the benefit of the school fund, the creditor may file his bill in equity against the commissioner of school lands of the county in which such lands were sold, to recover such debt, and if the court shall decree that such debt, or any part thereof, is due, the amount decreed to be due shall be paid to the creditor out of the treasury. If such bill in equity be not filed within the period of limitation applicable to such debt, such debt shall be forever barred.(Code 1849, c. 113, §28; Code 1860, c. 113, §27; Code 1868, c. 69, §26; Code 1923, c. 69, §26.)

§36. Defense by Commissioner of School Lands.—The commissioner of school lands shall answer and defend, on the part of the State, any claim or suit against him, under the preceding section, and shall be allowed the costs incurred by him in defending the same.(Code 1849, c. 113, §29; Code 1860, c. 113, §28; Code 1868, c. 69, §27; Code 1923, c. 69, §27.)

§1. Who Entitled to Partition; Jurisdiction.—Tenants in common, joint tenants and coparceners, shall be compellable to make partition, and the circuit court of the county wherein the estate, or any part thereof, may be, shall have jurisdiction, in cases of partition, and in the exercise of such jurisdiction, may take cognizance of all questions of law affecting the legal title, that may arise in any proceedings.(Code 1849, c. 124, §1; Code 1860, c. 124, §1; Code 1868, c. 79, §1; Code 1923, c. 79, §1.)

§2. Location of Shares.—Any two or more of the parties, if they so elect, may have their shares laid off together, when partition can be conveniently made in that way.(Code 1849, c. 124, §3; Code 1860, c. 124, §2; Code 1868, c. 79, §2; Code 1923, c. 79, §2.)

§3. Allotment or Sale.—When partition cannot be conveniently made, the entire subject may be allotted to any party who will accept it, and pay therefor to the other parties such sums of money as their interest therein may entitle them to; or in any case in which partition cannot be conveniently made, if the interests of one or more of those who are entitled to the subject, or its proceeds, will be promoted by a sale of the entire subject, or allotment of part and sale of the residue, and the interests of the other persons so entitled will not be prejudiced thereby, the court, notwithstanding any of those entitled may be an infant, insane person, or convict, may order such sale, or such sale and allotment, and make distribution of the proceeds of sale, according to the respective rights of those entitled, taking care, when there are creditors of any deceased person who was a tenant in common, joint tenant, or coparcener, to have the proceeds of such deceased person’s part applied according to the rights of such creditors. The court making an order for sale shall, when the dividend of a party exceeds the value of three hundred dollars, if such party be an infant, insane person, or convict, require security for the faithful application of the proceeds of his interest, in like manner as if the sale were made under article one of this chapter.(Code 1849, c. 124, §2; Code 1860, c. 124, §3; Code 1868, c. 79, §3; Code 1923, c. 79, §3.)

§4. Determination of Liens.—When there are liens by judgment or otherwise, on the interest of any party to a partition suit, the court may, on the petition of any person holding a lien, ascertain the liens and apply the dividend of such party in the proceeds of sale to the discharge of such liens so far as may be necessary for that purpose.

§5. Sale of Land Free of Dower.—The provisions of section five, article one, chapter forty–three of this Code shall be applicable to any sale made under the provisions of this article.

§6. Unknown Owners.—If the name or share of any person interested in the subject of the partition be unknown, so much as is known in relation thereto shall be stated in the bill.(Code 1849, c. 124, §4; Code 1860, c. 124, §4; Code 1868, c. 79, §4; Code 1923, c. 79, §4.)

§7. Lessees.—Any person who, before the partition or sale, was lessee of any of the lands divided or sold, shall hold the same of him to whom such land is allotted or sold, on the same terms on which, by his lease, he held it before the partition.(Code 1849, c. 124, §5; Code 1860, c. 124, §5; Code 1868, c. 79, §5; Code 1923, c. 79, §5.)

§8. Record; Effect.—The provisions of section seven, article four, chapter fifty-one of this Code shall be applicable to any partition made under this article.

§1. Excavations Near Boundaries.—No owner or tenant of any land containing coal shall open or sink, or dig, excavate or work in, any coal mine or shaft on such land, within five feet of the line dividing such land from that of another person or persons, without the consent in writing of every person interested in, or having title to, such adjoining lands in possession, reversion, or remainder, or of the guardian of any such persons as may be an infant, or the committee of any such person as may be insane or convict. If any person shall violate this section; he shall forfeit five hundred dollars to any person injured thereby who may sue for the same.(Code 1849, c. 124, §7; Code 1860, c. 124, §7; Code 1868, c. 79, §7; Code 1923. c. 79, §7.)

§2. Survey of Mine.—The owner, tenant, occupant of any land on which a coal mine is opened and worked, or his agent, shall permit any person interested in, or having title to, any land coterminous with that in which such coal mine is, to have ingress and egress with surveyors and assistants to explore and survey such mine at his own expense, and not oftener than once a month, for the purpose of ascertaining whether or not the preceding section has been violated. Every owner, tenant, occupant, or agent, who shall refuse such permission, exploration or survey, shall forfeit twenty dollars for each refusal to the person so refused.(Code 1849, c. 124, §8; Code 1860, c. 124, §8; Code 1868, c. 79, §8; Code 1923, c. 79, §8.)

§3. Prosecution Under Preceding Sections.—A justice of the county in which such mine is, before whom complaint of such refusal is made, may issue a summons to such owner, tenant, occupant or agent to answer such complaint. On the return of the summons executed, and proof that the complainant has right of entry, and that he has been refused without sufficient cause, the justice shall designate an early and convenient time for such entry to be made, and issue his warrant commanding the sheriff of the county to attend and prevent obstructions and impediments to such entry, exploration and survey. The cost of such summons, and a fee of three dollars to the sheriff executing the warrant, shall be paid by the person whose refusal caused the complaint. But if the justice dismiss the complaint, the costs shall be paid by the party making it.(Code 1849, c. 124, §9; Code 1860, c. 124, §9; Code 1868, c. 79, §9; Code 1923, c. 79, §9.)

§1. Rights of Parties on Transfer of Land or Reversion.—An heir, devisee, grantee or assignee of any land let to lease, or of the reversion thereof, and his heirs, personal representative or assigns, shall enjoy against the lessee, his personal representative, devisees or assigns, the like advantage by action or entry upon any condition or forfeiture, or by action upon any covenant or promise in the lease, which the grantor, as signor, or lessor might have enjoyed.(Code 1849, c. 138, §1; Code 1860, c. 138, §1; Code or 1868, c. 93, §1; Code 1923, c. 93, §1.)

§2. Rights of Lessee Against Transferee of Reversion.—A lessee, his personal representatives, devisees or assigns, may have against an heir, devisee, grantee or alienee of the reversion, or of any part thereof, or of any estate therein, his heirs, devisees, or assigns, the like benefit of any condition, covenant, or promise in the lease, as he could have had against the lessors themselves; except the benefit of any warranty, in deed or law.(Code 1860, c. 138, §2; Code 1868, c. 93, §2; Code 1923, c. 93, §2.)

§3. Effect of Transfer of Rent, Reversion or Remainder.—When rents are inherited, conveyed or devised, all rights of distress and reentry, or either of them, shall pass to the heir, grantee or devisee without express words. An inheritance, grant, or devise of a rent, or of a reversion or remainder, shall be good and effectual without attornment of the tenant; but no tenant, who, before the death of the ancestor or testator, or before notice of the grant, shall have paid the rent to the ancestor, testator, or grantor, shall suffer any damage thereby.(Code 1849, c. 138, §3; Code 1860, c. 138, §3; Code 1868, c. 93, §3; Code 1923, c. 93, §3.)

§4. Attornment to Stranger Void.—The attornment of a tenant to any stranger shall be void, unless it be with the consent of the landlord of such tenant, or pursuant to, or in consequence of, the judgment, order, or decree of a court.(Code 1849, c. 138, §4; Code 1860, c. 138, §4; Code 1868, c. 93, §4; Code 1923, c. 93, §4.)

§5. Notice to Terminate Tenancy.—A tenancy from year to year may be terminated by either party giving notice in writing to the other, at least three months prior to the end of any year, of his intention to terminate the same. A periodic tenancy, in which the period is less than one year, may be terminated by like notice, or by notice for one full period before the end of any period. When such notice is to the tenant, it may be served upon him, or upon any one holding under him the leased premises, or any part thereof. When it is by the tenant, it may be served upon any one who at the time owns the premises in whole or in part, or the agent of such owner, or according to the common law. This section shall not apply where, by special agreement, some other period of notice is fixed, or no notice is to be given; nor shall notice be necessary from or to a tenant whose term is to end at a certain time.(Code 1849, c. 138, §5; Code 1860, c. 138, §5; Code 1868, c. 93, §5; Code 1923, c. 93, §5.)

§6. Desertion of Premises; Entry; Recovery of Rent.—If any tenant from whom rent is in arrear and unpaid shall abandon the demised premises, and leave the same uncultivated or unoccupied, without goods thereon subject to distress sufficient to satisfy such rent, the lessor or his agent may post a notice in writing in a conspicuous part of the premises, requiring the tenant to pay such rent within one month. If the same be not paid within that time, the lessor shall be entitled to possession of the premises, and may enter thereon, and the right of such tenant thereto shall thenceforth be at an end. But the landlord may recover the rent up to the time when he became entitled to the possession.(Code 1849, c. 138, §6; Code 1860, c. 138, §6; Code 1868, c. 93, §6; Code 1923, c. 93, §6.)

§7. Reletting by Landlord.—The landlord or other person entitled to the rent may, however, at his election, incorporate, in the notice provided for in the preceding section, the further notice that he will, after he shall have taken possession of the demised premises, lease the premises to some other person, in which case the tenant will still remain liable upon his lease, for the unexpired portion of his term, for the difference between the amount of rent received by the landlord from the new tenant, and the amount payable under the lease of the original tenant, and upon any other covenants or agreements contained in the original lease.

§8. Tenant’s Right to Recover Possession.—If the landlord shall have elected to continue to hold the tenant liable upon his lease, as provided in the preceding section, the tenant shall be entitled, upon the payment of all arrears of rent, and the satisfaction of any liabilities which shall have accrued upon the covenants or agreements contained in his lease, and any other liabilities with which he is chargeable by virtue of his lease, to the possession of the premises, except to the extent that some other person is already in possession of the premises, or is entitled to such possession, by virtue of a lease made by the landlord to such other person pursuant to the notice given under the preceding section, before the tenant shall have notified the landlord in writing of his intention to resume possession of the premises, and shall have satisfied, or tendered an amount sufficient to satisfy, his liabilities under his lease as aforesaid. No tenant whose lease has been lawfully forfeited, under the second preceding section, shall be entitled to any right, either at law or in equity, to be relieved of such forfeiture, or to reenter the premises, except as provided in this section.

§9. Recovery of Rent by Distress or Action; Evidence; Interest.—Rent of every kind may be recovered by distress or action. A landlord may also, by action, recover a reasonable satisfaction for the use and occupation of lands, and, on the trial of such action, if any parol demise, or any agreement wherein a certain rent was reserved, shall appear in evidence, the plaintiff shall not for that reason be nonsuited, but may use the same as evidence of the amount of his debt or damages. In any action for rent, or for such use and occupation, interest shall be allowed as on other contracts.(Code 1849, c. 138, §7; Code 1860, c. 138, §7; Code 1868, c. 93, §7; Code 1923, c. 93, §7.)

§10. Who May Recover Rent.—He to whom rent or compensation is due, whether he have the reversion or not, his personal representative or assignee, may recover it as provided in the preceding section, or may, in a proper case, resort to an attachment, whatever be the estate of the person owing it, or though his estate or interest in the land be ended. And when the owner of real estate in fee, or holder of a term, yielding him rent, dies, the rent thereafter due shall be recoverable by such owner’s heir or devisee, or such term-holder’s personal representative or devisee. And if the owner or holder alien or assign his estate or term, or the rent thereafter to fall due thereon, his alienee or assignee may recover such rent.(Code 1849, c. 138, §8; Code 1860, c. 138, §8; Code 1868, c. 93, §8; Code 1923, c. 93, §8.)

§11. Persons Liable for Rent.—Rent may be recovered, from the lessee, or other person owing it, or the heir, personal representative, devisee or assignee, who has succeeded to the lessee’s estate in the premises. But no assignee shall be liable for rent which became due before his interest began. Nothing herein shall change or impair the liability of heirs, personal representatives, or devisees, for rent, to the extent and in the manner in which they are liable for other debts of the ancestor or testator; nor shall the mere merger of the reversion to which a rent is incident affect the liability for such rent.(Code 1849, c. 138, §9; Code 1860, c. 138, §9; Code 1868, c. 93, §9; Code 1923, c. 93, §9.)

§12. Distress for Rent; Time and Place; Warrant.—Rent may be distrained for within one year after the time it becomes due, and not afterwards, whether the lease be ended or not. The distress shall be made by any sheriff or constable of the county wherein the premises yielding the rent or some part thereof may be or the goods liable to distress may be found, under a warrant from a justice founded upon the affidavit of the person claiming the rent, or his agent, that the amount of money or other thing to be distrained for (to be specified in the affidavit), as he verily believes, is justly due to the claimant for rent reserved upon contract from the person of whom it is claimed.(Code 1849, c. 138, §10; Code 1860, c. 138, §10; Code 1868, c. 93, §10; 1872-3, c. 195, §10; 1882, c. 65, §10; Code 1923, c. 93, §10; 1925, c. 80, §10.)

§13. Property Subject to Distress.—The distress may be levied on any goods of the lessee, or his assignee or under tenant, found on the premises, or which may have been removed therefrom not more than thirty days. If the goods of such lessee, assignee or undertenant, when carried on the premises, are subject to a lien which is valid against his creditors, his interest only in such goods shall be liable to such distress. If any lien be created thereon while they are upon the leased premises, they shall be liable to distress, but for not more than one year’s rent, whether it shall have accrued before or after the creation of the lien. No goods shall be liable to distress other than such as are declared to be so liable in this section.(Code 1849, c. 138, §11; Code 1860, c. 138, §11; Code 1868, c. 93, §11; Code 1923, c. 93, §11.)

§14. Forcible Entry by Officer.—The officer having such distress warrant or an order of attachment, based upon rent, if there be need for it, may, in the daytime, break open and enter into any house or close in which there may be goods liable to the distress or order, and may, either in the day or nighttime, break open and enter into any house or close where there may be any goods so liable, which have been fraudulently or clandestinely removed from the demised premises.(Code 1849, c. 138, §13; Code 1860, c. 138, §13; Code 1868, c. 93, §13; Code 1923, c. 93, §13.)

§15. Unlawful Act in Making Distress; Damages.—Where distress shall be made for rent justly due, and any irregularity or unlawful act shall afterwards be done by the party distraining, or his agent, the distress itself shall not be deemed to be unlawful, nor the party making it be therefore deemed a trespasser ab initio; but the aggrieved by such irregularity or unlawful act may, by action, recover full satisfaction for b the special damage he shall have sustained thereby.(Code 1849, c. 138, §14; Code 1860, c. 138, §14; Code 1868, c. 93, §14; Code 1923, c. 93, §14.)

§16. Distress or Attachment When Rent Not Payable in Money.—Where goods are distrained or attached for rent reserved in a share of the crops, or in anything other than money, the claimant of the rent, having given the tenant ten days’ notice, or if he be out of the county, having set up the notice in some conspicuous place on the premises, may apply to the court or justice to which the distress or attachment is returnable, to fix the value of such rent. Upon such application the court or justice having ascertained the value, either by its own judgment, or, if either party require it, by the verdict of a jury impaneled without the formality of pleading, shall order the goods distrained or attached, to be sold to pay the amount so ascertained.(Code 1849, c. 138, §15; Code 1860, c. 138, §15; Code 1868, c. 93, §15; 1872-3, c. 195, §15; 1882, c. 65, §15; Code 1923, c. 93, §15.)

§17. Attachment for Rent.—On complaint by any landlord or person entitled to rent, or his agent, to a justice, that any person liable to him for rent intends to remove, or is removing, or has within thirty days removed his effects from the leased premises, if such landlord or person entitled to rent, or his agent, make oath to the truth of such complaint to the best of his belief, and to the rent which is reserved (whether in money or other thing) and will be payable within one year, and the time or times when it will be payable, and also make oath either that there is not, or he believes, unless an attachment issues, there will not be, left on such premises, property liable to distress sufficient to satisfy the rent so to become payable, such justice shall, if the landlord or person entitled to rent, or his agent, shall execute before such justice a bond in the penalty and with the conditions prescribed in section eight, article seven, chapter thirty-eight of this Code, issue an order of attachment for such rent against the personal estate of the person so liable therefor. If the amount of rent claimed by the landlord or person entitled to the rent, or his agent, exclusive of interest, is fifty dollars or less than that amount, the order of attachment shall be returnable before the justice issuing the order, or another justice; if the amount of rent so claimed, exclusive of interest, is more than fifty dollars and not more than three hundred dollars, the order of attachment may be returnable before the justice issuing the order, or another justice, or to the next term of the circuit court thereafter; and if the amount of rent so claimed, exclusive of interest, exceeds three hundred dollars, the order of attachment shall be returnable to the next term of the circuit court thereafter.

If the order of attachment is returnable to the circuit court, it shall be in form or effect as follows:

The defendant, in an attachment issued under the next preceding paragraph, may make defense thereto in the same manner and to the same extent as in other cases of attachment; and the same, as to the rent claimed, shall be proceeded in, tried and determined, as if it were an original action brought in said circuit court, and the affidavit and attachment shall take the place of a declaration in the case. The affidavit in such case shall be returned to the clerk of the circuit court by the justice. The provisions of sections seven to forty-six, both inclusive, except sections thirty–seven, thirty-eight and thirty-nine, article seven, chapter thirty-eight of this Code, shall be applicable to attachments issued hereunder and returnable to the circuit court.

If the order of attachment is returnable before a justice, it shall be in form or effect as follows:

The provisions of sections seven to twenty-four, both inclusive, article nine, chapter fifty of this Code shall be applicable to attachments issued hereunder and returnable before a justice.(Code 1860, c. 151, §§1, 3; 1867, c. 118, §1; 1871, c. 136, §2; 1882, c. 158, §3; Code 1923, c. 106, §3.)

§18. Removal of Goods by Third Party Having Lien.—If, after the commencement of any tenancy, a lien be obtained or created by trust deed, mortgage, or otherwise, upon the interest or property in goods on premises leased or rented, of any person liable for the rent, the party having such lien may remove such goods from the premises on the following terms, and not otherwise, that is to say: On the terms of paying to the person entitled to the rent, so much as is in arrear, and securing to him so much as is to become due; what is so paid or secured not being more altogether than a year’s rent in any case. If the goods be taken under legal process, the officer executing it shall, out of the proceeds of the goods, make such payment of what is in arrear; and, as to what is to become due, he shall sell a sufficient portion of the goods on a credit till then, taking from the purchaser bond, with good security, payable to the person so entitled, and delivering such bond to him. If the goods be not taken under legal process, such payment and security shall be made and given before their removal. Neither this nor any other section of this article shall affect any lien for taxes or levies.(Code 1849, c. 138, §12; Code 1860, c. 138, §12; Code 1868, c. 93, §12; Code 1923, c. 93, §12.)

§19. Right of Reentry; Ejectment; Unlawful Detainer; Judgment by Default.—Any person who shall have the right of reentry into the lands by reason of any rent issuing thereout being in arrear, or by reason of the breach of any covenant or condition, may serve a declaration in ejectment on the tenant in possession, where there shall be such tenant, or, if the possession be vacant, by affixing the declaration upon the chief door of any messuage, or at any other conspicuous place on the premises, which service shall be in lieu of a demand and reentry; or may commence an action of unlawful detainer, and obtain service either in person or by publication, as in other such actions, which service shall be in lieu of a demand and reentry; and upon proof to the court, by affidavit in case of judgment by default, or upon proof on the trial that the rent claimed was due, and there was not sufficient property subject to distress upon the premises to satisfy the claim for rent due, or that the covenant or condition was broken before the service of the in declaration in ejectment, or the commencement of the action of unlawful detainer, and that the plaintiff had power thereupon to reenter, he shall recover judgment, and have execution for such lands. In case the time for reentering be specified in the instrument creating the rent, covenant or condition, the proceedings in ejectment or unlawful detainer shall not be begun until such time shall have elapsed.(Code 1849, c. 138, §§16, 21; Code 1860, c. 138, §§16, 21; Code 1868, c. 93, §§16, 21; Code 1923, c. 93, §§16, 21.)

§20. Relief Against Forfeiture.—Should the defendant, or other person for him, not pay the in rent in arrear, with interests and costs, nor file a bill in equity for relief against such forfeiture, within twelve months after execution executed, he shall be barred of all rights, in law or equity, to be restored to such lands or tenements.(Code 1849, c. 138, §17; Code 1860, c. 138, §17; Code 1868, c. 93, §17; Code 1923, c. 93, §17.)

§21. Rights of Mortgagee or Trustee.—Any mortgagee or trustee of the tenant’s interest in such lands, or any part thereof, whether he be in possession of the lands or not, may, within twelve months after execution executed, pay the rent and all arrears, with interest and costs, or file a bill in equity for relief against such foreiture; and thereupon may be relieved against, on the same terms and conditions as the tenant of such lands or tenements would be entitled to.(Code 1849, c. 138, §18; Code 1860, c. 138, §18; Code 1868, c. 93, §18; Code 1923, c. 93, §18.)

§22. Injunction Against Ejectment or Unlawful Detainer.—If the tenant of such lands, or any person having a right or claim thereto, shall, within the time aforesaid, file his bill for relief in the circuit court of the county wherein the lands are situated, he shall not have or continue any injunction against the proceedings at law on the ejectment or unlawful detainer, unless he shall, within thirty days next after a full and perfect answer filed by the plaintiff in ejectment, or unlawful detainer, bring into court or deposit in some bank within the State, to the credit of the cause, such money as the plaintiff in ejectment or unlawful detainer shall, in his answer, swear to be due and in arrear over and above all just allowances, and also the costs taxed in the suit, there to remain till the hearing of the cause, or to be paid out to such plaintiff on good ecurity, subject to the decree of the court.(Code 1849, c. 138, §19; Code 1860, c. 138, §19; Code 1868, c. 93, §19; 1872-3, c. 195, §19; 1882, c. 65, §19; Code 1923, c. 93, §19.)

§23. Effect of Payment of Rent or Relief in Equity.—If any party having a right or claim to such lands shall, at any time before the trial in such action of ejectment or of unlawful detainer, pay or tender to the party entitled to such rent, or to his attorney in the cause, or pay into court, all the rent and arrears, with interest and costs, all further proceedings in the action shall cease. If the person claiming the land shall, upon bill filed as aforesaid, be relieved in equity, he shall hold the land as before the proceedings began, without a new lease or conveyance.(Code 1849, c. 138, §20; Code 1860, c. 138, §20; Code 1868, c. 93, §20; Code 1923, c. 93, §20.)

§24. Record of Reentry; Publication of Cerificate.—Where actual reentry shall be made, the party, by or for whom the same shall be made, shall return a written act of reentry, sworn to by the sheriff or other officer acting therein, to the clerk of the county court of the county wherein the lands or tenements shall be, who shall record the same in the deed book, and shall deliver, to the party making the reentry, a certificate setting forth the substance of such written act, and that the same had been left in his office to be recorded, which certificate shall be published at least once a week, for two successive weeks, in some newspaper published in such county, or, if no newspaper be published in such county, then in some newspaper of general circulation therein; which publication shall be proved by affidavit to the satisfaction of such clerk, who shall note the fact on the margin of the deed book against the record of the act of reentry in the words, “Publication made and proved according to law, A..............B................, Clerk,” and shall return the original act of reentry to the party entitled thereto. Such written act of reentry, when recorded, and the record thereof, or a duly certified copy from such record, shall be evidence in all cases of the facts therein set forth.(Code 1849, c. 138, §22; Code 1860, c. 138, §22; Code 1868, c. 93, §22; 1872-3, c. 195, §22; 1882, c. 65, §22; Code 1923, C. 93, §22.)

§25. Fees of Clerk.—The clerk shall be paid for recording, granting certificate, and noting publication, as aforesaid, one dollar and fifty cents.(Code 1849, c. 138, §23; Code 1860, c. 138, §23; Code 1868, c. 93, §23; 1872-3, c. 195, §23; 1882, c. 65, §23; Code 1923, c. 93, §23.)

§26. Payment of Rent and Reinstatement After Reentry.—Should the person entitled to such land at the time of reentry made, or having a claim thereto, not pay or tender the rent and all arrears thereof, with interest and all reasonable expenses incurred about such reentry, within one year from the first day of publication as aforesaid, he shall be forever barred from all right, in law or equity, to such lands. In case any party, having such right, shall pay or tender such rent and arrears with interest and expenses as aforesaid to the party making reentry, within the time aforementioned therefor, he shall be reinstated in his possession to hold as if the reentry had not been made.(Code 1849, c. 138, §24; Code 1860, c. 138, §24; Code 1868, c. 93, §24; Code 1923, c. 93, §24.)

§27. Defects in Entry Proceedings.—No person who, or those under whom he claims, shall have been possessed of lands by virtue of a reentry, for the term of two years, shall be disturbed therein by suit or otherwise for any defect of proceedings in such reentry.(Code 1849, c. 138, §25; Code 1860, c. 138, §25; Code 1868, c. 93, §25; Code 1923, c. 93, §25.)

§28. Destruction of Buildings; Abatement of Rent.—Where buildings or other structures upon leased premises, not owned by the tenant or removable by him, are destroyed by fire or otherwise, in whole or in part, without fault or negligence on the part of the tenant, there shall be, unless the lease otherwise provides, a reasonable reduction of the rent for such time as may elapse until there be placed again upon the premises buildings, or other structures, of as much value to the tenant for his purposes as those destroyed, and unless the landlord shall rebuild or replace such structures as soon as he can reasonably do so, the tenant may, after the expiration of such reasonable time, surrender the possession of the premises and be relieved of all further liability for rent, after the time of such surrender.

§29. Land Taken by Eminent Domain; Termination or Reduction of Rent.—Whenever the whole of any tract of land which is under lease is taken under the power of eminent domain, the liability of any tenant of such land to pay rent thereon shall terminate unless the lease expressly provide otherwise. If any part of a tract of land which is under lease, or any easement or other interest in such land, is taken under the power of eminent domain, the rent of any tenant of the land shall, unless the lease expressly provide otherwise, be reduced in the proportion which the value of the land or interest taken bears, at the time of such taking, to the total value of the land upon which rent was payable, under the lease. The foregoing provisions shall not affect nor impair any right which a tenant of land may have to compensation from the person exercising the right of eminent domain, for the value of his lease, or other property upon the leased premises belonging to him, or in which he may have an interest, if such value shall exceed the amount of the rent from the payment of which he is relieved by virtue of the provisions of this section.

§1. Waste by Tenant in Possession.—If any tenant of land or any person who has alienated land commit any waste thereon while he remains in possession, unless by special permission of the owner so to do, he shall be liable to any party injured for damages.(Code 1849, c. 137, §1; Code 1860, c. 137, §1; Code 1868, c. 92, §1; Code 1923, c. 92, §1.)

§2. Waste by Cotenant.—If a tenant in common, joint tenant, or parcener commit waste, he shall be liable to his cotenants, jointly or severally, for damages.(Code 1849, c. 137, §2; Code 1860, c. 137, §2; Code 1868, c. 92, §2; Code 1923, c. 92, §2.)

§3. Guardians.—If a guardian or committee commit waste of the estate of his ward, he shall be liable to the ward, at the expiration of his guardianship, for damages.(Code 1849, c. 137, §3; Code 1860, c. 137, §3; Code 1868, c. 92, §3; Code 1923, c. 92, §3.)

§4. Actions; Damages.—Any person entitled to damages, in any case arising under the preceding sections of this article; may recover the same in an action on the case. And if it shall be found by the jury that the waste was committed wantonly, judgment shall be for three times the amount of damages assessed therefor.(Code 1849, c. 137, §4; Code 1860, c. 137, §4; Code 1868, c. 92, §4; Code 1923, c. 92, §4.)

§5. Waste Pending Suit.—If the tenant in possession of any land shall, pending any suit to recover or charge such land, with knowledge of such suit, commit any waste thereon, the court, in which the suit is, may command the sheriff or other officer to take possession of the land; and, if the plaintiff succeed in recovering or charging the land, he may recover, in any action on the case against him who committed the waste, three times the amount of damages assessed therefor.(Code 1849, c. 137, §5; Code 1860, c. 137, §5; Code 1868, c. 92, §5; Code 1923, c. 92, §5.)

§1. Lessee of Tenant or Owner of an Uncertain Interest.—If the landlord of land which is let to another be tenant for life or other uncertain interest or be an owner whose estate is subject to a limitation over upon a contingency, and if the estate of such landlord terminates during the tenancy of the lessee, the lessee may hold the land to the end of the current year of the tenancy, paying rent therefor; the rent, if it be reserved in money, shall be apportioned between the landlord or his personal representative, and those who succeed to the land. If rent be reserved in kind, it shall be paid to the landlord, or his personal representative; and such landlord, or his personal representative, as the case may be, shall pay to those who succeed to the land a reasonable rent in money, from the expiration of the life estate, or other uncertain interest or estate, to the end of the current year of the tenancy; the rent to be paid to those who succeed to the land shall be a charge in preference to other claims on the rent received in kind by such landlord or his personal representative. Such lessee shall be entitled as at common law to the emblements growing on the lands at the expiration of the estate for life, or other uncertain interest, whether they be severed during the year or not, but shall not, after the expiration of the life estate, plant any crop which will not mature during the current year, and, if he does so, he shall have no right to sever the same after the end of the current year. But where the growing crops are severed after the expiration of the current year of the tenancy, such lessee shall pay a reasonable rent to those who succeed to the lands, from the end of such tenancy to the time when the same are severed. If such life estate, or other uncertain interest or estate expire before the first of August in any year, the lessee shall permit those who succeed to the land to put in the ground any crop they may desire after that period; and if any land has been prepared by such lessee previous to that period, for the purpose of putting a crop in the ground, those who succeed to the land shall pay a reasonable compensation for such preparation; and to the extent that such lessee is deprived of the use of the land by reason of a crop being put in the ground, by those who succeed to the land, he shall be paid a reasonable compensation for the use of such land.(Code 1849, c. 139, §1; Code 1860, c. 139, §1; Code 1868, c. 94, §1; Code 1923, c. 94, §1.)

§2. Land Employed in Farming or Planting.—If any person, having land employed in farming or planting, whether it be held for life or any other interest, shall die on or after the first of March, his personal representative may, in his discretion, continue such employment until the last day of December following, and all the emblements which such representative may sever before that day shall be personal assets in his hands, deducting first the taxes and levies on such land, and the cost of tools procured after the decedent’s death. If he elect not to continue such employment, he shall dispose of, for the balance of the year, to the best advantage for the estate of the decedent, such land held by him for life only, and in either case such representative shall, out of the assets, pay to those entitled in reversion or remainder, a reasonable rent or hire, from the death of his decedent to the last day of December. Such rent or hire shall be chargeable, in preference to all other claims against the estate, on the profits which may arise from such land after the death of the decedent.(Code 1849, c. 139, §1; Code 1860, c. 139, §1; Code 1868, c. 94, §2; Code 1923, c. 94, §2.)

§3. At Common Law.—In all other cases the right to emblements shall be as at common law.(Code 1849, c. 139, §3; Code 1860, c. 139, §3; Code 1868, c. 94, §3; Code 1923, c. 94, §3.)

§1. Apportionment of Rent on Determination of Estate.—On the determination by death or otherwise, of the estate or other thing, from or in respect of which any rent, hire or money, coming due at fixed periods, issues or is derived, or on the death of any person interested in such rent, hire or money, the person or the personal representative or assignee of the person who would have been entitled, but for such death or determination, to the rent, hire, or money coming due at any such period, shall have a proportion thereof, according to the time which shall have elapsed of the time for which such rent, hire, or other money was growing due, including the day of such death or determination, deducting a proportional part of the charges.(Code 1849, c. 140, §1; Code 1860, c. 140, §1; Code 1868, c. 95, §1; Code 1923, c. 95, §1.)

§2. Remedies for Recovery.—For recovering such proportion, such person, representative, or assignee, shall, after such fixed period, have such remedies as he would have had for recovering the whole of such rent, hire or other money, if entitled thereto.(Code 1849, c. 140, §2; Code 1860, c. 140, §2; Code 1868, c. 95, §2; Code 1923, c. 95, §2.)

§3. Scope of Article.—This article shall not apply to any case in which it is expressly provided that no apportionment shall take place.(Code 1849, c. 140, §3; Code 1860, c. 140, §3; Code 1868, c. 95, §3; Code 1923, c. 95, §3.)

§4. Apportionment on Purchase of Rent or Part of Land.—Where the holder of a rent shall purchase part of the land out of which the same issues, the rent shall be apportioned in like manner as if the land had come to him by descent; and where the holder of land, being part of land out of which rent shall be issuing, shall purchase such rent, or part thereof, the rent so purchased shall be apportioned as aforesaid.(Code 1849, c. 140, §4; Code 1860, c. 140, §4; Code 1868, c. 95, §4; Code 1923, c. 95, §4.)

§1. Custody of Records Procured From Virginia.—That the records, books, documents and papers, relating to land titles in this State, the assessments, delinquency sales and redemptions of lands, and which have been heretofore procured from the State of Virginia by the governor of this State, under and by virtue of an act of the general assembly of Virginia entitled “An act to authorize the auditor of public accounts and the register of the land office to deliver to the State of West Virginia certain of the original title papers respecting land in the State of West Virginia, and to authorize the said State to obtain copies of such title papers to lands as can not be properly so delivered,” approved February fifth, eighteen hundred and ninety-two, shall be placed and kept in the auditor’s office of this State as part of the public records of said office. The foregoing provision relates to the following list of records, books, documents and papers, as well as to other records and papers of a similar character, viz: 1 vol. western delinquent lands, 1840, 1845; 1 vol. western delinquent lands, 1845, 6, 7, 8 and 9; 1 vol. loose-printed, 1821, 1831; 1 vol. western delinquent lands, 1850, 1, 2, 3 and 4; 1 vol. eastern delinquent lands, 1840, 45; 1 vol. eastern delinquent lands, 1845, 6, 7, 8 and 9; 1 vol. eastern delinquent lands, 1851, 2, 3 and 4; 1 vol. delinquent lands, east Alleghany, to 1820 inclusive ; 1 vol. delinquent lands and lots, printed; 1 vol. written delinquent lands since 1831, loose; 1 vol. delinquent lands, east Alleghany, to 1820 inclusive; 1 vol. lands not as certainable, since 1832; 1 vol. lands not as certainable since 1832; 1 unbound book, written, without title or back; 1 vol. lands sold and bought for the commonwealth, 1855, l§60; 1 vol. lands sold and bought for the common wealth, 1851, 1855; 1 vol. taxes paid in advance; 1 vol. receipts for redeemed lands, from N. to Z.; 1 vol. (thin book) of forfeitures; 1 vol. list of delinquent lands and lots, western; 1 vol. receipts for lands, from A. to M.; 1 vol. lands sold and bought for the commonwealth, 1844, 45; 1 vol. delinquent lands, since 1831, since 1839. Unascertained lands for the fol lowing counties, 1 vol. for each year named, viz: Barbour 1843; Braxton 1841, 42 and 44; Brooke 1848; Fayette 1832 and 44; Gilmer 1845, 46 and 47; Hampshire 1832; Hardy 1832, 33 and 34; Harrison 1832, 41, 42 and 44; Jack- son 1832; Kanawha 1841 and 32; Lewis 1834, 44, 45, 46, 47, 41, 42 and 43; Logan 1832; Marion 1843; Mason 1834 and 32; Monongalia 1832; Morgan 1832, 33, 34, 36, 38 and 40; Nicholas 1832 and 41; Preston 1834; Randolph 1832, 41, 44 and 48; Taylor 1847; Tyler 1832; Wood 1832. Assessor’s books for the following counties, one volume for each year named, viz; Barbour, Berkeley, Boone, Braxton and Brooke for 1850; Cabell 1830; Fayette and Gilmer 1850; Greenbrier 1850; Hampshire and Hancock 1850 and 1856; Hardy 1856; Harrison 1850 and 1856; Jackson and Jefferson 1838 and 1850; Kanawha, Lewis, Logan, Marshall, Mason and Mercer, 1850; Monongalia 1838 and 50; Monroe 1838; Morgan 1838 and 1850; Nicholas 1838; Pendleton, Pocahontas, Pres ton, Putnam, Raleigh, Randolph, Ritchie, Taylor, Tyler, Wayne, Wetzel, Wood and Wyoming, 1850. Delinquent list for the following counties and years, viz: Barbour 1843 and 44; Berkeley 1835, 6, 7 and 8; Braxton 1836, 7, 8, 9, 40, 1, 2, 3 and 4; Brooke 1835; Cabell 1835, 6, 7, 8, 9, 41, 2 and 3; Fayette 1841, 2, 3 and 4; Greenbrier 1835, 6, 7, 8, 9, 40, 1, 2, 3 and 4; Hampshire 1838, 5, 6, 7, 8, 9, 41, 2, 3 and 4; Hardy 1835, 6, 7, 8, 9, 40, 1, 2, 3 and 4; Harrison 1835, 6, 7, 8, 9, 40, 1, 2, 3 and 4; Jackson 1841, 2, 3, 4, 5, 6, 8 and 9; Jefferson 1835 and 43; Kanawha 1835, 6, 7, 8, 9, 40, 1, 2, 3 and 4; Lewis 1834, 5, 6, 7, 8, 9, 40, 1, 2, 3 and 4; Logan 1835, 6, 7, 8, 9, 40, 1, 2, 3 and 4; Marion 1842, 3 and 4; Marshall 1836, 7, 8, 9, 40, 1, 2, 3 and 4; Mason 1835, 6, 7, 8, 9, 40, 1, 2, 3 and 4; Mercer 1840, 42 and 4; Monongalia 1835, 6, 7, 8, 9, 40, 1, 2, 3 and 4; Monroe 1835, 6, 7, 8, 9, 41, 2, 3 and 4; Morgan 1841, 2, 3 and 4; Nicholas 1835, 7, 8, 9, 40, 1, 2, 3 and 4; Ohio 1842, 3, 4, 5, 8 and 9; Pendleton 1840, 3 and 4; Pocahontas 1836, 7, 8, 9, 40, 1, 2, 3 and 4; Preston 1836, 7, 8, 9, 41, 2, 3 and 4; Randolph 1835, 6, 7, 8, 9, 41, 2 and 4; Ritchie 1843 and 44; Taylor 1844; Tyler 1835, 6, 9, 40, 1, 2, 3 and 4; Wayne 1842, 3 and 4; Wood 1835, 7, 8, 9, 40, 1, 2, 3 and 4. Land books as follows, viz: Barbour 2, 1843 to 54 and 1855 to 1860; Berkeley 9, 1779 to 1826, 1827 to 1837, 1838 to 1850, 1851 to 1856, 1857 to 1861, 1782 to 1794, 1795 to 1803, 1804 to 1812, 1813 to 1818; Boone 1, 1847 to 1860; Braxton 3, 1836 to 1850, 1851 to 1856, and 1857 to 1861; Brooke 5, 1716 to 1725, 1797 to 1815, 1826 to 1830, 1831 to 1850, 1851 to 1860; Cabell 5, 1809 to 1822, 1823 to 1831, 1832 to 1840, 1841 to 1852, 1853 to I860; Clay-Calhoun 1, 1856 to 1861; Doddridge 1, 1845 to I860; Fayette 2, 1831 to 1850, 1851 to 1861; Gilmer 2, 1845 to 1855, 1856 to 1861; Greenbrier 11, 1782 to 1811, 1812 to 1820, 1821 to 1825, 1826 to 1829, 1830 to 1834, 1835 to 1839, 1840 to 1844. 1845 to 1851, 1852 to 1856, 1857 to 1860, 1861 to 1863; Hampshire 15, 1782 to 1797, 1798 to 1801, 1805 to 1811, 1812 to 1815, 1816 to 1819, 1820 to 25, 1826 to 28, 1829 to 32, 1833 to 36, 1837 to 1840, 1841 to 1844, 45 to 50, 51 to 54, 55 to 57, 58 to 60; Hancock 1, 1848 to 1860; Hardy 12, 1786 to 1805, 1806 to 14, 15 to 20, 21 to 26, 27 to 32, 33 to 39, 40 to 44, 45 to 49, 50 to 53, 54 to 56, 57 to 59, 60 to 61; Harrison 12, 1796 to 1806, 1807 to 1813, 14 to 19, 20 to 25, 26 to 31, 32 to 34, 35 to 37, 38 to 41, 42 to 45, 46 to 52, 53 to 56, 57 to 60; Jackson 3, 1831 to 1845, 46 to 55, 56 to 61; Jefferson 5, 1802 to 24, 25 to 35, 36 to 48, 49 to 56, 57 to 61; Kanawha 6, 1793 to 1813, 14 to 31, 32 to 44, 45 to 53, 54 to 57, 58 to 61; Lewis 7, 1817 to 1826, 27 to 33, 34 to 39, 40 to 46, 47 to 52, 53 to 56, 57 to 60; Logan 3, 1824 to 1845, 46 to 55, 56 to 60; Marion 4, 1842 to 1850, 51 to 54, 55 to 57, 58 to 60; Marshall 4, 1836 to 1844, 45 to 52, 53 to 57, 58 to 60; Mason 5, 1814 to 1823, 24 to 35, 36 to 50, 51 to 56, 57 to 60; Mercer 2, 1837 to 1855, 56 to 63; Monongalia 10, 1788 to 1806, 1807 to 15, 16 to 23, 24 to 32, 33 to 38, 39 to 45, 46 to 51, 52 to 54, 55 to 57, 58 to 60; Monroe 4, 1851 to 1854, 55 to 57, 58 to 60, 61 to 63; Morgan 4, 1820 to 1830, 31 to 44, 45 to 55, 56 to 61; McDowell 1, 1859 to 1863; Nicholas 4, 1818 to 1833, 34 to 45, 46 to 52, 53 to 61; Ohio 12, 1784 to 1795, 96 to 1801, 1802 to 1806, 07 to 13, 14 to 22, 23 to 30, 31 to 36, 37 to 43, 44 to 51, 52 to 54, 55 to 57, 58 to 60; Pendleton 11, 1789 to 1804, 1805 to 14, 15 to 19, 20 to 25, 26 to 30, 31 to 36, 37 to 42, 43 to 48, 49 to 54, 55 to 59, 60 to 63; Pleasants 1, 1851 to 1860; Pocahontas 3, 1822 to 1838, 39 to 53, 54 to 61; Preston 5, 1818 to 37, 38 to 47, 48 to 53, 54 to 57; Putnam 1. 1848 to 1861; Raleigh 1, 1850 to 61; Randolph 7, 1802 to 1819, 20 to 29, 30 to 38, 39 to 47, 48 to 53, 54 to 57, 58 to 61; Ritchie 2, 1843 to 1854, 55 to 60; Roane 1, 1856 to 1861; Taylor 1, 1844 to 1860; Tucker 1, 1856 to 60; Tyler 4, 1815 to 1830, 31 to 41, 42 to 55, 53 to 60; Upshur 1, 1851 to 1860; Wayne 2, 1842 to 1855, 56 to 61; Webster-Wyoming 1, 1850 to 1861; Wetzel 2, 1846 to 1855, 56 to 60; Wirt 1, 1848 to I860; Wood 5, 1802 to 1822, 23 to 34, 35 to 44, 45 to 54, 55 to 60. Total 206 books. Also copies of five books containing record copies of sheriffs ’ returns of lands delinquent for taxes and of sales made by the sheriffs of lands sold for taxes.(1893, c. 41, §1; Code 1923, c. 68A, §1.)

§2. Charge of Such Records by Auditor.—All such books, records, documents and papers relating to land titles in this State, which may hereafter be procured by this State from the State of Virginia, under and by virtue of said act of the general assembly of Virginia, and all copies in whole or in part of records, books, documents and papers relating to land titles in this State, which may hereafter be procured from the State of Virginia by the governor of this State by his agent, under and by virtue of said act of the general assembly of Virginia, and which shall be prepared and made under the authority and direction of the governor, shall be placed in the auditor’s office as they are procured from time to time and shall be kept in said auditor ’s office as part of the public records of said office.(1893, c. 41, §2; Code 1923, c. 68A, §2.)

§3. Copies From Records as Evidence; Fees.—All copies in whole or in part of books, records, documents and papers, which have heretofore been or which shall hereafter be procured from the State of Virginia by the agent of the governor of this State, under and by virtue of said act of the general assembly of Virginia, and which shall be placed and kept in the auditor’s office under the provisions of this act, shall be treated and held to be prima facie correct, and may be used for all purposes in like manner and with like effect as the originals from which they were copied could be used: Provided, however, That any person shall have the right to prove that any such copy or any part thereof was not correctly made from the original in Virginia, and that it is not a correct copy of such original. The auditor shall take charge of and be the custodian and keeper of the books, documents and papers mentioned in this article, and make and certify copies or abstracts thereof. The books in the secretary of state’s office, containing the record of land grants, surveys and plats shall be transferred to the auditor’s office, and the auditor shall be the custodian and keeper of such books; and copies thereof attested by the auditor shall be held to be prima facie correct and may be used for all purposes in like manner and with like effect as the originals from which they were copied could be used. For making searches and certifying copies and abstracts from such books, documents and papers the auditor shall charge such fees as are allowed by law to clerks of the county courts for like services, which fees shall be allowed when the services are rendered. A record and account shall be kept of all such fees. Such fees shall be paid into the state treasury at the end of every six months.(1893, c. 41, §3; 1897, c. 52; Code 1923, c. 68A, §3.)

§4. Fees.—The provisions contained in sections seven and eight, article one, chapter fifty seven of this Code shall apply to a copy of or from any of the books, records, documents or papers, or copies of books, records, documents or papers, which shall be placed and kept in the auditor’s office under the provisions of this article, attested as provided in said sections; and to any certificate of the auditor based in whole or in part upon the contents of any such books, records, documents and papers, or copies of books, records, documents and papers, as to the return of any real estate as delinquent, or sale thereof for taxes or payment or nonpayment of taxes or forfeited or delinquent lands, or nonentry of lands, or the books, of the commissioners of the revenue.(1893, c. 41, §4; Code 1923, c. 68A, §4.)

§1. Informality in Deeds and Other Instruments.—Any instrument, executed before this Code takes effect, shall be as valid and effective as it would be, according to the provisions of section four, article three, chapter thirty-six of this Code, if executed after this Code takes effect.

§2. Validation of Instruments, Acknowledgments and Records.—No deed or other writing conveying or purporting to convey or release or assign real estate, or any interest therein, or to create any power of attorney relating to real estate or any interest therein, heretofore made or executed and delivered by any person or persons whomsoever, or by a husband and wife to a bona fide purchaser for good and valuable consideration, and acknowledged by him or them before an officer duly authorized by law to take such acknowledgments, if such deed, writing or power of attorney was made, executed, acknowledged and delivered prior to the day this Code takes effect, shall be deemed, held, or adjudged invalid, or defective, or insufficient in law or in equity, by reason of any informality or omission in setting forth the particulars of the acknowledgment made before such officer aforesaid in the certification thereof, or in stating the official character of such officer, or the place of taking the acknowledgment, or by reason of the fact that the wife executed such instrument prior to the execution thereof by the husband, or by reason of the fact that the parties making or executing the instrument or writing, or any of them omitted to seal the same; but every such deed or writing shall be as good, valid, and effectual in law as if the law with respect to acknowledgments and seals, in force at the date of such deed or writing, had been fully complied with in regard to the matters hereinbefore mentioned; and the record of the same duly made in the proper office for recording deeds in the State of West Virginia, or in the State of Virginia before the formation of West Virginia, and exemplifications of the same duly certified, shall be legal evidence in all cases in which the original would be competent evidence: Provided, however, That this section shall not apply to suits now pending and undetermined insofar as it amends laws existing at the time such pending suits were instituted, nor to any suit that may be brought within one year after the day this Code takes effect, insofar as it amends laws existing at the time this Code takes effect; nor shall this section apply to any deed or other writing which has heretofore been declared or held invalid by any court of competent jurisdiction.(1915, c. 75, §1; 1921, c. 63, §6a; Code 1923, c. 73, §6a.)

§3. Validation of Acknowledgments Defective in Other Respects.—Where the acknowledgment of any deed or other writing, or the privy examination of a married woman respecting the same, has been taken, either within or without the State of West Virginia, by a notary public, justice of the peace, or president of a county court, whether he used an official seal or a not, or by two justices of the peace in any county in the State of Virginia prior to the reorganization of the state government thereof, or by any justice out of his district or township, or it does not appear by the certificate of the justice that such acknowledgment or privy examination was taken within his district or township, or county, the same shall nevertheless be sufficient, unless here be other lawful objections; and the admission to record and recordation of any such deed or writing heretofore had or made upon any such acknowledgment or privy examination shall like wise be sufficient and valid unless there be other lawful objections: Provided, That this section hall not affect the rights of any party to any pending suit instituted prior to the twenty-fifth day of May, nineteen hundred and eleven.(1865, c. 48, §1; 1875, c. 67, §11; 1882, c. 149, §11; 1883, c. 13, §11; 1895, c. 10, §11; 1911, c. 43, §11; Code 1923, c. 73, §11.)

§4. Validation of Records Where Failure to Comply With §9, c. 73, Code 1868.—All deeds and other writings admitted to record under chapter seventy-three of the Code of West Virginia of eighteen hundred and sixty-eight, are hereby declared to be as legal and valid as if the provisions of the ninth section of said chapter, and of all acts amendatory of said section, had been fully complied with.(1877, c. 112, §1; Code 1923, c. 73, §11a.)

§5. Presumption of Jurisdiction in Cases of Judicial Sales.—When any land or any interest in land in this State has heretofore been sold, partitioned or disposed of prior to the formation of this State, under the order, judgment or decree of any court of competent jurisdiction of the State of Virginia, or has heretofore been or shall hereafter be sold, partitioned or disposed of under the order, judgment or decree of any court of competent jurisdiction of this State, it shall be presumed, in the absence of evidence to the contrary, that every such court obtained due jurisdiction in the cause by the institution of all proper proceedings and by the service or execution of proper process over any and all persons whose names appear in any part of the record of the cause as persons embraced therein or against whom the court proceeded, and this presumption shall apply to any person or persons named by the designation of child, children, heir-at-law, heirs-at-law, devisee, devisees, or other sufficient designation or classification from which it can be shown by the record or otherwise the person or persons included therein or in tended thereby.[1907, c. 76, §1; Code 1923, c. 132, §8a(1).]

§6. Presumption of Authority of Commissioners and Certain Other Officers, in Certain Cases.—When any deed has heretofore been made prior to the formation of this State for land or any interest in land therein, which purports on its face to be made under judicial proceedings of a court of the State of Virginia by a commissioner, special commissioner, guardian or other person, or when any deed has heretofore been made or shall hereafter be made for land or any interest in land in this State, which purports on its face to be made by a commissioner, special commissioner, guardian or other person under the judicial proceedings of a court of this State, then in every such case it shall be presumed, in the absence of evidence to the contrary, that the person executing such deed was authorized by the court to convey the land or interest therein which is conveyed by such deed, and if any such deed was duly, or shall hereafter be duly admitted to record in any county, and not less than ten years shall have elapsed after such record thereof, it shall be presumed, in the absence of evidence to the contrary, that the title of all persons which said deed professes to convey, under such judicial proceedings, did in fact pass by such deed.

For the purpose of this and the preceding section a court of the United States shall be deemed a court of the state within which it has been or may be held.[1907, c. 76; Code 1923, c. 132, §8a(2)(3).]

§1. Survey by Magnetic Meridian; Variations; Measurement.—When any surveyor is required to survey lands which have been surveyed before, he shall make such survey by the magnetic meridian, but shall also return and certify in his plat the degree of the variation of the magnetic needle from the true meridian, at the time of the resurvey; and also (if the same can be done) the degree of such variation at the time of the original survey; and every survey, whether original or not, shall be made by horizontal measurement, unless otherwise provided by deed or contract.(Code 1849, c. 111, §11; Code 1860, c. 111, §9; Code 1868, c. 67, §2; Code 1923, c. 67, §2.)

§2. Execution of Orders of Survey.—Every surveyor shall promptly and faithfully execute any order of survey made by any court, of lands lying in his county, and make due return of a true plat and certificate thereof; and, if he fail to do so, he shall forfeit fifty dollars to the party injured by such failure.(Code 1849, c. 111, §12; Code 1860, c. 111, §10; Code 1868, c. 67; Code 1923, c. 67, §1.)