confirmation of the action of the district con- [ to such pleadings as are filed in suits pending ference in removing respondent as trustee. in court. A demurrer being overruled, the cause was, on defendant's motion, certified to the Supreme Court of Appeals. Dismissed for want of jurisdiction. Our judgment therefore is that this court has no jurisdiction upon this certicate to review the action of the circuit court of Harrison county, and we therefore dismiss the Steptoe & Johnson, of Clarksburg, for plain- certificate. tiff. Ray L. Strother and Harvey W. Harmer, both of Clarksburg, for defendant. MILLER, J. (dissenting). According to the prior decisions of this court and the courts of Virginia, section 4 of chapter 57 of the Code was intended to provide a summary ex parte remedy, always existing in courts of al practice has been to proceed by mere motion, without formal pleadings. Venable v. Coffman, 2 W. Va. 310; Wade v. Hancock, 76 Va. 620, 622, 624. RITZ, P. The Wilsonburg Methodist Episcopal Church, Adamston Charge of the Quar-equity independently of statute, and the usuterly Conference, by J. B. Workman, district superintendent, filed a petition in the circuit court of Harrison county asking that court to confirm the action of the district conference in removing Peter W. Ash as one of the trustees of said Wilsonburg Methodist Episcopal Church. A demurrer was filed by Ash to the petition, which being overruled, the court, upon motion of the said Peter W. Ash, certified to this court for its decision the propriety of the ruling upon the demurrer. In the case here the plaintiff filed a formal petition, with notice to the defendant of the proposed application for his removal as trustee of the church at Wilsonburg. The petition purports in its caption to be that of Wilsonburg Methodist Episcopal Church of the Adamston Charge Quarterly Conference, and is so signed, by J. B. Workman, District Superintendent, and by Steptoe & Johnson, Counsel. My associates are of opinion that this petition is not a pleading within the meaning of section 1, chapter 135 of the Code. The remedy given by section 4 of chapter 57 of the Code is cumulative of the remedy already existing in courts of equity. I think the case falls within the spirit and purposes of that statute. The allegations of the petition are that by an order of the circuit court, made on February 13, 1920, John B. Strother, J. B. Whiteman, Peter Ash, J. L. Thompson, Oliver Windom, Hugh Thompson, William Hurst and O. J. Hanna were duly appointed trustees of said church; that at a regular session of the Quarterly Conference of said Wilsonburg Methodist Episcopal Church, held on March 28, 1920, at Adamston, Harrison County, on motion duly sustained by unanimous vote, it was ordered that said P. W. Ash theretofore appointed trustee by the name of Peter Ash, be removed from the Board of Trustees of said church for the following reasons: This proceeding is had under the provisions of section 4 of chapter 57 (sec. 3295) of the Code, providing that the circuit court, on the appplication of the proper authorities of the church, may from time to time appoint trustees, or change those appointed whenever it may appear proper. The question is certified by virtue of the latter paragraph of section 1, c. 135, of the Code of 1918 (Code Supp. 1918, sec. 4981), providing that the sufficiency of a summons or a return of service, or any pleading, may be certified to this court. Is the paper filed in this case, which is called a petition, a pleading within the meaning of that statute? The statute contemplates the settlement of preliminary questions arising upon the pleadings, or the sufficiency of a summons or return of service thereon in advance of the hearing, so that in case such pleadings, or the summons or the return thereon are not good, the error may be corrected before the expense of a trial is incurred. The appointment or removal of church trustees is made by the circuit court upon the application of the proper authorities of the church. No formal pleading is required for this purpose. In fact we know that in most cases no written motion is even made for the purpose, the action of the court being simply invoked by presenting the evidence that the proper church authorities have acted, which action is thereupon ordinarily confirmed. We do not think, in such case, that there is any necessity for the filing of any written petition or pleading, unless some rule of practice of the court should require such motions to be filed in writing. In that event they are not pleadings within the meaning of section 1, c. 135, of the Code. A proceeding for the appointment of church trustees is not a lawsuit in any sense of the term, and the term plead-pointment and removal by the court. 1. Because of his failure and refusal to give any ministerial support to the pastor. 2. Because of his failure to indorse checks properly authorized and drawn, for services rendered by the sexton and for supplies purchased for the church. 3. Because of his contempt of an order of the quarterly conference and for other reasons. A copy of the minutes of said quarterly conference is vouched and exhibited with said petition in support thereof. And the petition alleges that the petitioner is the proper authority of said church to elect and remove trustees and to make application for their ap (105 S.E.) the removal of said Ash as trustee, and that { promoting the purpose of the conveyance, etc., said John B. Strother, J. B. Whiteman, J. L. and securing the property conveyed or dediThompson, Oliver Windom, Hugh Thompson, cated, to the use of those justly entitled to William Hurst and O. J. Hanna be and it. It may be a little difficult to see how any constitute the trustees of said church, being of the specific grounds assigned in the minall those appointed by the order of the court utes are involved in the question of effecting made February 13, 1920, except the said Ash, or promoting the purpose of the conveyance removed. or dedication of the church property, although some or all of them may have relation thereto. Besides those specifically stat ed, the third ground says, "and for other reasons." On the inquiry before the court I do not think it would be confined to the grounds assigned for the action of the church authority; it might consider other grounds which under the statute would justify re The demurrer challenges the sufficiency of the petition, upon two grounds, stating them in logical order as follows: first, because petitioner is not a corporation nor competent to sue as such; second, because the grounds assigned in the minutes of the quarterly conference are not good grounds for removal of a trustee. On the first proposition, section 4 of chap-moval or appointment of a trustee. ter 57 of the Code authorizes the court to act upon the application of the proper authorities of the church, congregation, etc. As stated, the petition is brought in the name of Wilsonburg Methodist Episcopal Church, Adamston Charge Quarterly Conference, by J. B. Workman, District Superintendent. The statute does not contemplate formality in pleadings. The petition alleges that petitioner is the proper authority of said church to elect and remove trustees. The demurrer admits the allegation, if well pleaded. Though the petitioner may not be a corporation or a legal entity capable of suing, yet if it be authorized collectively to act in the premises, we think good practice in cases of this kind authorizes the proceedings to be in the name of the collective body or organization by one or more of the parties, proceeding on behalf of all. McConnell v. Gardner, Morris (Iowa) 272. If the church as a collective body or quarterly conference is the proper authority contemplated by the statute to take action, as petitioner alleges, there must be some one to take the initiative. Usually the action of the court has been invoked by mere motion, without pleadings. I am of opinion that the point of demurrer for want of proper parties is without merit. The next point of error, that the grounds of removal recited in the minutes are insufficient to justify removal of the defendant as trustee, I think can not be sustained. The statute gives the court authority to appoint trustees on the application of the proper authorities of the church "whenever it may appear to the court proper to effect or promote the purpose of the conveyance, devise or dedication and secure the same to the use of those justly entitled thereto." The statute seems to limit the authority of the court to To the grounds of demurrer assigned by defendant petitioner's counsel interpose the proposition that a member of the church must submit to its ecclesiastical jurisdiction, and however dissatisfied he may be with that jurisdiction, he has no right to invoke the power of the civil courts where no civil rights are involved. This proposition is well settled by the authorities cited, including the leading case of Watson v. Jones, 13 Wall. 679, 20 L. Ed. 666, and our case of Sanders v. Meredith, 78 W. Va. 565, 89 S. E. 733. But this proposition would seem to pertain rather to one's rights and obligations as a member of the church and to the discipline of the church authorities relating thereto, than to his rights as trustee of the church property. The case of Watson v. Jones, supra, involved the rights of trustees to act as such and also to their rights in the use of the property as a place of worship. I do not know from the pleadings what may be the policy of the church as to the personnel of the trustees, nor for what grounds they may be removed or disciplined by the church authorities. The statute assumes some authority or jurisdiction over them, in their appointment or removal as trustees, and the courts will be moved to action of the application of the proper church authorities. In such proceeding the court may not be disposed to regard as sufficient for its action those grounds relied on by the church authorities; but if other and additional grounds should be urged on the hearing of the motion or proceedings, it would have jurisdiction to act thereon independently of those assigned by the church authorities for their action. I see no error in the rulings of the court on the demurrer and would so certify to the circuit court. (87 W. Va. 643) JARRETT v. KIMBROUGH. (No. 3992.) advertised for sale and sold as the land of one who bears the same family name, but whose Christian name differs to some extent from (Supreme Court of Appeals of West Virginia. that of the person who, at the date of the de Feb. 8, 1921.) (Syllabus by the Court.) linquency, was the true owner of the property; wherefore, the only irregularity affecting the validity of the sheriff's deed to defendant is Taxation 770-Tax deed held not void for the variance between the assessment roll misnomer of owner. A tax sale and deed thereon based are not rendered void and subject to annulment because the owner's name appears in the delinquent list, and in the sheriff's published sales list of property to be sold by him for nonpayment of taxes, as "Norena Lambert," instead of Norma E. Lambert," the correct name; such misnomer being an irregularity cured by sections 6 and 25, chapter 31, Code. Miller, J., dissenting. Appeal from Circuit Court, Putnam County. Suit by James W. Jarrett against Mary E. Kimbrough to cancel a tax deed. Plaintiff's bill was dismissed on demurrer, and he appeals. Affirmed. and the delinquent list and published advertisement of sale. The sole question presented for discussion and decision, therefore, is whether a sheriff's sale is invalidated by the discrepancy in the names occurring in the tax proceeding based upon a proper assessment. Although the bill purports to file certified copies of Mrs. Lambert's deed to the plaintiff and the sheriff's deed to Mary E. Kimbrough as Exhibits Nos. 1 and 2, neither of them is in the record; nor is there any other exhibit of any kind in it. The record consists of nothing more than the process to answer, the return of service, bill of complaint and order filing it, the demurrer to the bill and order filing it, and the final order James B. Menager, of Charleston, for ap- denying relief and dismissing the cause. pellant. There is no exhibit showing anything re C. E. Kimbrough and D. L. Salisbury, both specting the manner of assessment or any of Charleston, for appellee. LYNCH, J. The decree reviewed for error denied the relief prayed for, dismissed plaintiff's bill upon demurrer, after his refusal to avail himself of the leave granted to amend, and the cause is here for the correction of the error so committed, if any be found in the record. The purpose of the suit is the cancellation of a tax deed for land sold at a sheriff's sale for taxes assessed against it in the name of plaintiff's grantor, Norma E. Lambert. Her deed to him bears the date of July 30, 1913, at which time the land was delinquent for the taxes charged against it and unpaid for the year 1911. At the sale made in 1913, several months after plaintiff obtained his deed, Mary E. Kimbrough became the purchaser, and to her the sheriff conveyed the land in February, 1917, and she promptly caused the deed to be admitted to record in the proper office and county. Shortly thereafter plaintiff brought this suit to cancel the deed as a cloud upon his title. The only ground relied on for cancellation is that said land was returned delinquent, advertised for sale, and sold by the sheriff in an entirely different name from that of "Norma E. Lambert," who was the owner of said property before it was conveyed to the plaintiff, and in which name it was assessed for taxation prior to the sale to plaintiff, to wit, in the name of "Norena Lambert," and not in the name of "Norma E. Lambert." In other words, though properly assessed for taxation in the correct name of the owner, as alleged in the bill, the land was returned delinquent and irregularity in it of any kind—nothing from which can be seen or even inferred the existence of any defect in the tax proceeding leading up to and including the assessment of the land for taxation purposes. The bill does, however, as noted, aver the regularity of the enrollment of the land in the name of Norma E. Lambert, the grantor of plaintiff, prior to her conveyance to him. With these allegations in mind it must be assumed that the taxes, to enforce payment of which the sale became necessary, were assessed in the name of Norma E. Lambert, whose duty it was to pay them; and also that whatever irregularity exists, if any sufficient to avoid the deed to the purchaser at such sale, occurred subsequent to the assessment of the unpaid taxes for which the sheriff sold the land. The use of the term "Norena Lambert," instead of the true name "Norma E. Lambert," in the sheriff's published list of property to be sold by him for unpaid taxes, is an irregularity in the proceeding which is cured by section 6, ch. 31, Code. That statute provides that "No sale of any such real estate as is sold by such sheriff, as aforesaid, or deed therefor to the purchaser thereof, shall be, in any way or manner affected by reason of any mistake in the publication, or posting, of such list or notice, * as to the name of the owner, (105 S.E.) port of this conclusion it is necessary to cite But the bill further charges the existence "And no irregularity, error or mistake in the Clearly the misstatement of Mrs. Lambert's We are not now dealing with a misstate- "Of course errors in the delinquent list and There is a similar holding in Collins v. It may be urged by appellant, however, in support of his contention, appellant may But to this contention two answers may be But as a matter of fact, the designation Of course, although that part of section Va. 611, 72 S. E. 650; Shrewsbury v. Horse | ceded that the assessment must be valid Creek Coal Land Co., 78 W. Va. 182, 88 S. E. 1052. But we merely mention this in passing, and express no opinion as to what might constitute possible defects in pro cedure so serious and vital as to withdraw them from the category of irregularities within the meaning of the statute. For these reasons, therefore, we affirm the decree of the circuit court dismissing plaintiff's bill. MILLER, J. (dissenting). The demurrer to the bill admits as true that the land involved was returned delinquent and sold in the name of Norena Lambert instead of Norma E. Lambert, in whose name it was assessed for taxation. The error occurred in the delinquent return and it was carried into the sales return, etc. I think this was a fatal mistake in the delinquent list, and according to our prior decisions amounted to no return quo ad the land of plaintiff. True, the mistake occurs in the Christian name, but "Norena" is not the equivalent of "Norma E." The mistake was such as might mislead and deceive plaintiff, the purchaser from Norma E. Lambert. The fact that the mistake occurred in the Christian name instead of the surname is not material if it was such as might mislead or deceive the owner of the land. In the case of Friedman and in the name of the owner, so as to import full notice to the owner, and it is so decided in Male v. Moore, supra. The assessment and delinquent return are most essential to this end, and I cannot see how a defect in the assessment which would defeat a deed after sale would not do the same thing if carried into the delinquent return, the next important step in due process. In Plaster v. Harmon, 70 W. Va. 634, 74 S. E. 905, we decided that the absence of the proper affidavit by the sheriff at the time of presenting the delinquent return to the county court was a fatal omission, which would render a tax sale depending thereon void after deed. In Wilkinson v. Linkous, 64 W. Va. 205, 61 S. E. 875, we held that though the oath of a tax return is subscribed by the sheriff, but it does not appear that the oath was subscribed by a person authorized to administer oaths as required by the statute, is absolutely void. Applying the rules heretofore adopted by this court, I think the decree ought to be reversed. (87 W. Va. 727) ARNOLD et al. v. MYLIUS et al. MYLIUS et al. v. ARNOLD et al. FARNSWORTH v. MYLIUS. (No. 4142.) v. Craig, 77 W. Va. 223, 87 S. E. 361, cited (Supreme Court of Appeals of West Virginia. in the opinion of the court, the delinquent return contained the name of "Joseph Fredman," and the assessment was in the name of "Joseph Freedman," instead of the true name of the plaintiff, "Joseph Friedman." No one could have been misled or deceived by this mistake in the delinquent return. In the case of Collins v. Reger, 62 W. Va. 195, 57 S. E. 743, we decided that the assessment and sale of land in the name of "Martha Hedrick" of land belonging to "Martha Helmick" was void after deed. In Male V. Moore, we held that the assessment and sale of the land of "Hornbrook" in the name of "Hoonbrook" was a substantial departure from the true name and did not import full notice to the owner or taxpayer and make the proceedings due process of law. It amounted to no delinquent return of the owner's land, and the omission was not cured by the statute. As is said in Ritchie Lum ber Co. v. Nutter, 66 W. Va. 444, 66 S. E. 646, the acts to be performed antecedent to the tax sale are in their nature jurisdictional, and are generally essential to confer due process of law; they are in a sense analogous to judicial process, or summons, by attachment, or to judicial proceedings in rem, the last one of those antecedent acts, intended to give notice to the landowner and others interested in the payment of taxes, being the public sale of the land at a certain time and place, designated by law. It is con Feb. 15, 1921.) (Syllabus by the Court.) 1. Partition 17(2)-Questions of title dependent location of boundary lines under different titles cannot be heard in suit for partition. Questions of title to land dependent upon issues of fact proper for jury determination and arising out of uncertainty as to the location of boundary lines between tracts of land held under different and hostile titles, one of them by three persons and the adjoining tracts by two of them, cannot be heard and determined by a court of equity in a suit for partition of the tract owned by all of them as co tenants. 2. Partition 17 (2)-Court held not to have Jurisdiction to determine ownership where boundaries in dispute. Even though, in such case, the title of one of the cotenants in the subject of partition is merely equitable, and he is a cotenant with another one of the three in the adjoining lands, there is no jurisdiction in such suit to determine the ownership of the lands in dispute by reason of the conflicting claims as to the location of the boundary lines. 3. Partition 17(2)—That hostile titles go back to common source held not to confer jurisdiction. In such case it is immaterial that the titles to all of the tracts of land so situated go back to a common source. When land once held as |