¶0 1. PUBLIC LANDS--Town Sites--Deeds of Trustees--Proceedings in Land Office--Appeals. Neither the Commissioner of the General Land Office nor the Secretary of the Interior can entertain an appeal from a decision of a board of town site trustees appointed in pursuance of Act Cons. May 14, 1890, c. 207, 26 Stat. 109 (U.S. Comp. St. 1901, p. 1463), after a deed to a town lot has been made and delivered, notwithstanding an appeal was pending at the time of such issuance and delivery. The functions and jurisdiction of that department necessarily close when the title has passed from the government.
2. TRUSTS--Constructive Trusts. One who secures title to property from a trustee, which, under the terms of the trust, should properly go to another, will be deemed, by a court of equity, to hold the same as a trustee for the benefit of the one entitled thereto. Equity will not permit the aims and purposes of a trust to be violated, and those who participate therein to be gainers thereby, but will invest the trust property in their hands with the same character that it possessed in the hands of the trustee.
3. TAXATION--Property Liable--Public Lands Contested Town Lots. The issuance and delivery of a deed to a lot by a board of town site trustees, appointed in pursuance to Act. Cons. May 14, 1890, c. 207, 26 Stat. 109 (U.S. Comp. St. 1901, p. 1463), render the same at once liable for taxes, as other real property, not-withstanding a contest may be pending between adverse claimants therefor.
4.SAME--Sale of Land--Purchase by Interested Party--Effect. One who is under a moral or legal obligation to pay the taxes is not in a position to become a purchaser at a sale for such taxes; and, if such person permits the property to be sold, and buys it in either in person or indirectly through the agency of another, he does not thereby acquire any right or title to the property, but his purchase is deemed a mode of paying taxes.
Error from District Court, Oklahoma County; before C. F. Irwin, Judge.
Action by James A. Garner against John E. Brooks and others. Judgment for plaintiff, and defendants bring error. Affirmed and remanded, with instructions.
The cause of action herein arose over conflicting claims to lot No. 26, in block No. 5, in the city of Oklahoma City, Oklahoma Territory, at the time of the opening of the territory. The defendant in error, James A. Garner, who will hereafter for convenience be denominated "plaintiff," having been refused a deed to said property by the town site trustees, and the deed having been issued to Seymour S. Price, and by him to M. D. P. Scarborough, his sister, and from her to John E. Brooks, plaintiffs in error, who will hereafter be denominated "defendants," filed this suit for the purpose of having himself declared to be the equitable as well as legal owner of said lot.
The cause coming on for hearing, by agreement of the parties it was referred to Frank Wells, to take testimony and make report of the facts and law and recommendation for judgment. The findings of the referee and his conclusions are as follows:
"(1) The plaintiff herein, James A. Garner, and one J. T. Word were contestants before board No. 2 of town site trustees for the lot in controversy in this case; being lot 26, in block 5, of Oklahoma City. Such town site trustees decided on December 1, 1890, that Word was entitled to a deed for said lot, and that Garner was not an occupant thereof under the intent of the law, (2) On December 10, 1890, Garner appealed to the Commissioner of the General Land Office, who on January 2, 1894, decided that Garner should be awarded the deed to the lot, and made, among others, a finding of fact 'that Garner staked the lot before it was claimed by any one else, and that he occupied the same before any house was built thereon, and afterwards his tenants erected the alley structure, Which he took in lieu of rent.' All of the findings of the Commissioner were sustained by some evidence, and on appeal, taken by Word, to the Secretary of the Interior, the Secretary found on April 8, 1895, that the conclusions of fact made by the Commissioner were borne out by the record, and awarded the lot to the plaintiff Garner. (3) That while said contest was pending on appeal, to wit, on May 7, 1892, said board of town site trustees executed and delivered to the defendant Seymour Price, a deed for the lot in controversy; said Price being a grantee of the rights of said Word in said lot. Said deed was placed on record by Price; and he at once took possession of the lot, and he and his grantees have ever since held, and now hold, the same. (4) On June 8, 1893, said Price conveyed said lot by warranty deed to his sister, M. D. P. Scarborough, of Quincy, Ill., which deed was filed for record March 13, 1895. After the execution of such deed Price continued, in apparent control of said lot, to act as agent for his said sister. (5) On September 27, 1898, Mrs. Scarborough conveyed said lot, by warranty deed, to one John E. Brooks, which deed was filed for record on October. 11, 1898. The said Brooks has been in possession of said property ever since about the date of such deed. (6) Soon after Brooks took possession of said lot, the plaintiff Garner notified him that he claimed to be the owner of such lot, and that any further payments made by Brooks on the purchase price of said lot were made at his peril. At this time Brooks had paid but a small amount on the purchase price; but Mrs. Scarborough held his notes for the balance, secured by a mortgage on the lot. The exact amount unpaid on such notes at the time I am unable to determine from the evidence, and I am also unable to determine, if it is material, whether the notes held by Mrs. Scarborough were negotiable. (7). On April 2, 1894, the plaintiff commenced case No. 847 in this court against Seymour S. Price and J. T. Word, asking that the defendants be restrained from transferring said lot pending the contest, that the deed from the town site trustees to Price be canceled, and that the defendants be compelled to account for the rent of such property. Said case, unless it was prematurely brought, was pending in said court until after the commencement of case No. 848, with which case it was then ordered consolidated. (8) On September 19, 1896, tax deed was issued for said lot by John E. Carson, county treasurer, by Charles Seely, deputy, to A. L. Welsh. Said deed is claimed by plaintiff to be void (a) because executed and acknowledged by the deputy treasurer instead of by the treasurer; (b) because the land was not subject to taxation after the year 1893, for which it was sold on account of the contest pending; (c) because it recites that A. L. Welsh was the purchaser at the tax sale, when in fact he was assignee of the tax certificate. The testimony shows that Welsh never had any interest in or made any claim to this lot, but that, shortly before the deed was due, Price brought the tax certificate to Welsh, and asked him to present it when the time was up and take out a deed in his own name, and to then deed the same to Mrs. Scarborough, who then owned the legal title to the lot, which requests Welsh complied with, and afterwards executed and delivered a quitclaim deed for the lot to Mrs. Scarborough. (9) This action was commenced January 23, 1897, to declare a resulting trust, and for an accounting between the parties."
Conclusions of Law.
"From the foregoing facts, I am of the opinion that: (1) The conveyance of the tax title to Mrs. Scarborough operated as a redemption, and that the tax title merged in the other rifle claimed by her. I am of the opinion that the tax deed was not void on account of not being executed by the county treasurer; but whether it was void on account of the land being subject to taxation for the year 1893 on account of the contest pending in the Department of the Interior I consider a close question, and have not attempted to decide the same, nor the effect of Price having had the tax deed taken in the name of Welsh for the benefit of Mrs. Scarborough, as these two questions become immaterial if the conclusion made above be correct. (2) The pendency of the contest over the lot by appeals to the Commissioner of the General Land Office and to the Secretary of the Interior was of itself notice to all persons of the rights of Garner. The' present occupant of the lot, Brooks, had notice, before purchasing, otherwise than by the pendency of the contest in the Land Department, as this suit was commenced January 23, 1897, and he did not purchase until September 27, 1898. Whether Mrs. Scarborough purchased the property for value, and without any actual notice of the claim of Garner, is not shown by the testimony, and I have not considered the question of whether it devolved upon her or the defendants to show that she was such a purchaser. If the appeals pending in the Land Department did not constitute notice, the question would then arise whether Mrs. Scarborough was an innocent purchaser and, if so, whether she could convey to Brooks, who had notice, by the pendency of this suit, of all her rights as an innocent purchaser. For the reasons given above I am of the opinion that the plaintiff should recover, as prayed for in his petition."
The defendants, on the overruling of this motion for new trial, brought the case on appeal to this court.
