John H. Bryan, Esq.
Union, West Virginia
Attorney for Earl J. and Anna Reynolds, Appellants
Jeffry A. Pritt, Esq.
Union, West Virginia
Attorney for Jerry I. Hoke, Sr.,
Thereafter, the county clerk published a notice to redeem the land in the local newspaper for three consecutive weeks. The notice to redeem was addressed to Bill Reynolds and Rose Reynolds, The Unknown Heirs and Creditors of Bill Reynolds and Rose Reynolds. The appellee also mailed a notice of the right of redemption via certified mail to Bill and Rose Reynolds and to Beverly Haynes. (See footnote 4) Ms. Haynes accepted and signed for both the notice mailed to Bill Reynolds and Rose Reynolds and the notice mailed to her. The property was not redeemed. On April 15, 2008, the County Commission of Monroe County, by its clerk, conveyed the land to the appellee by a tax deed.
On June 23, 2008, the appellants filed a petition to set aside the appellee's tax deed. The appellants asserted that as persons with a redeemable interest in the property, they were not notified by the appellee of their right to redeem the property. Furthermore, the appellants claimed that the appellee failed to properly examine the title to the property in order to ascertain the names of all individuals with an interest in the property.
The appellants' claim to the property arises out of a quitclaim deed executed to them pursuant to a settlement agreement between Beverly Haynes and the appellants, resolving a lawsuit involving the Estate of Bill Reynolds filed in Boone County. (See footnote 5) As a result of the settlement agreement, Beverly Haynes conveyed the property by quitclaim deed to the appellants. The first paragraph of the deed provides that [t]his QUITCLAIM DEED made and entered into this 8th day of February 2006, by and between BEVERLY HAYNES, grantor, party of the first part, and ANNA REYNOLDS and EARL J. REYNOLDS, Grantees, parties of the second part. The body of the deed stated that this was a conveyance of the property in the estate of Bill Reynolds. This quitclaim deed was recorded in the office of the Clerk of the County Commission of Monroe County on June 7, 2006, by the appellant, Earl J. Reynolds, which was approximately four and one-half months before the subject property was sold at the sheriff's tax sale.
On July 14, 2008, the appellee filed a response to the appellant's petition to set aside the tax deed in which he asserted that the appellants are not record owners of the property and therefore not entitled to relief. The appellee also averred that he complied with all statutory provisions applicable to tax deeds. The appellee subsequently filed a motion for summary judgment to which the appellants responded. After a hearing on the matter, the circuit court granted summary judgment to the appellee in its July 1, 2009 order.
Specifically, the circuit court found in its order that pursuant to W. Va. Code § 11A-4-4(b) (1994), the appellants must prove by clear and convincing evidence that the appellee did not exercise reasonably diligent efforts to provide them with notice of their right to redeem the property. According to the circuit court, the appellants were not reasonably identifiable from the records in the clerk's office. The circuit court explained that the appellants' quitclaim deed was not indexed under the name of Bill Reynolds or Rose Reynolds or indexed in such a manner as to allow a title examiner to determine that an interest in lands owned by Bill Reynolds and Rose Reynolds was being conveyed to another person. Furthermore, reasoned the circuit court, there were no probate or other records filed in the clerk's office giving notice to any interested person of the pendency of an estate for Bill Reynolds and Rose Reynolds. Moreover, the circuit court found that the burden is on the person seeking to protect himself or herself against the claims of others to see that all of the prerequisites of a valid and complete recordation are complied with. The circuit court concluded that the appellants failed to do this by not having their quitclaim deed indexed in such a manner as to give constructive notice to third parties of the appellants' interest in the subject property. (See footnote 6)
No title acquired pursuant to this article (See footnote 7) shall be set aside in the absence of a showing by clear and convincing evidence that the person who originally acquired such title failed to exercise reasonably diligent efforts to provide notice of his intention to acquire such title to the complaining party or his predecessors in title. (Footnote added.).
Black's Law Dictionary 523 (9th ed. 2009), defines reasonable diligence as [a] fair
degree of diligence expected from someone of ordinary prudence under circumstances like
those at issue. As noted above, the circuit court found that the appellants failed to show
a lack of reasonable diligence on the part of the appellee. According to the circuit court, the
appellants were not reasonably identifiable from the records in the clerk's office. We
disagree with the circuit court.
In this Court's recent opinion in Wells Fargo Bank, N.A. v. UP Ventures, II, 223 W. Va. 407, 675 S.E.2d 883 (2009), we held in Syllabus Point 1 that,
Under W. Va. Code, 11A-3-19(a), a tax sale purchaser is required to provide notice to parties who are of record at any time after the thirty-first day of October of the year following the sheriff's sale, and on or before the thirty-first day of December of the same year. W. Va. Code, 11A-3-19(a)(1) does not require a tax sale purchaser to supplement this list going forward to discover parties who became of record after the thirty-first day of December of the year following the sheriff's sale, or to provide additional redemption notice before the tax deed is delivered.
As set forth above, upon purchasing the tax lien on the subject property, the appellee received a certificate of sale from the sheriff which listed the names of both Bill Reynolds and Beverly Haynes as taxpayers of the property that was delinquent for the taxes. The appellee mailed a notice of the right to redeem the subject property to Bill Reynolds and he searched the public records in the county clerk's office for any deed transfers indexed under the name of Bill Reynolds. The appellee also mailed a notice of the right to redeem to Beverly Haynes. Significantly, the appellee failed to search the public records in the county clerk's office for deed transfers indexed under the name of Beverly Haynes who was listed as a taxpayer on the property in the certificate of sale given to the appellee. If the appellee had done so, he would have discovered the February 8, 2006 quitclaim deed conveying the subject property by Beverly Haynes to the appellants and filed in the county clerk's office on June 7, 2006. Because Beverly Haynes' name appeared as a taxpayer on the certificate of sale received by the appellee upon purchasing the tax lien for the subject property, this Court finds as a matter of law that reasonable diligence required that a search of the public records in the county clerk's office be made to determine whether there were any deed transfers indexed under the name of Beverly Haynes. (See footnote 8)
Further, the appellants' deed was of record in the county clerk's office during the applicable time period as having received the subject property by quitclaim deed from Beverly Haynes. Consequently, the appellee was charged with exercising reasonable diligence to provide notice to the appellants of their right to redeem the property. Moreover, there is evidence in the record that the sheriff's office assessed the appellants for taxes on the subject property for the year 2007. Specifically, the record contains a statement of taxes due for the year 2007 sent by the Sheriff of Monroe County to the appellants. Pursuant to W. Va. Code § 11A-3-23(a) (1998), (See footnote 9) the owner of, or any other person who was entitled to pay the taxes on, any real estate for which a tax lien thereon was purchased by an individual may redeem at any time before a tax deed is issued for the real estate. (Emphasis added). Therefore, also as persons entitled to pay taxes on the property, the appellants can redeem the property. (See footnote 10)
In sum, this Court finds as a matter of law that reasonable diligence required the appellee to search the public records in the county clerk's office for any deed transfers indexed under the name of Beverly Haynes in light of the fact that Beverly Haynes' name appeared as a taxpayer on the certificate of sale issued by the sheriff to the appellee after the appellee purchased the tax lien on the subject property. Because the appellee failed to conduct such a search, we conclude that the appellee failed to exercise reasonably diligent efforts to provide notice of the right of redemption of the subject property to the appellants. Accordingly, we reverse the circuit court's grant of summary judgment on behalf of the appellee, and we remand this case to the circuit court for proceedings consistent with our holding herein and for the court to permit the appellants to comply with W. Va. Code § 11A- 4-4(a) and (c).