David v. Whitehead

• Decision Date: 31 December 1904
• Citation: 13 Wyo. 189,79 P. 19
• Parties: DAVID v. WHITEHEAD ET AL
• Court: Wyoming Supreme Court

79 P. 19

13 Wyo. 189

DAVID v. WHITEHEAD ET AL

Supreme Court of Wyoming

December 31, 1904

Rehearing Denied March 6, 1905, Reported at: 13 Wyo. 189 at 207.

ERROR to the District Court, Laramie County, HON. RICHARD H. SCOTT Judge.

Action by Edward C. David against James R. Whitehead, Elizabeth Wilson and Edwin J. Smalley, as sheriff, to enjoin the foreclosure of a mortgage and the sale of certain real estate alleged to be owned by the plaintiff. The plaintiff claimed under a tax deed. The defendant Wilson claimed under a mortgage executed by her co-defendant Whitehead. Judgment was rendered for defendants, and plaintiff prosecuted error. The points involved and the material facts are stated in the opinion.

Reversed and remanded.

W. R Stoll, for plaintiff in error.

Upon the conveyance of real property title does not pass until delivery of the deed; the date of the deed or the date when it takes effect is the date of its delivery. (Chase's Black., Book 2, 254; 3 Wash. Real Prop. (5th Ed.), 299, 303; 9 Ency. Law (2d Ed.), 150-152; 1 Devlin on Deeds, 177, 264; 1 Cyc., 514.) A tax deed forms no exception to the general rule that a deed can only take effect from the date of its delivery; and the date of a tax deed, therefore, is the date of its delivery. (3 Devlin on Deeds, Sec. 1409; Black on Tax Titles, Sec. 392; Jackson v. Schoonmaker, 2 Johns., 230; McMichael v. Carlyle, 53 Wis. 504.) It is true that in the absence of other controlling evidence it will be generally presumed that the date of the execution of the deed shows the date of its delivery; and courts have been divided on the question as to when the law will presume a delivery the deed bearing one date and the acknowledgment another. It is submitted, however, that under statutes similar to those of this state the law is as follows: When an acknowledgment is necessary to give validity to the deed, and the acknowledgment is taken subsequently to the execution of the deed, the law will presume, if anything, that the date of delivery is the date of the acknowledgment; at least it will presume that the date of delivery was not prior to the date of acknowledgment. (3 Washburn Real Prop. (5th Ed.), 303; Blanchard v. Tyler, 12 Mich. 339; Johnson v. Moore, 28 id., 3; Eaton v. Trowbridge, 38 id., 454; Dresel v. Jordan, 104 Mass. 407; Loomis v. Pingree, 43 Me. 299; Henry v. Bradshaw, 20 Iowa 355; Portz v. Schantz, 70 Wis. 497; 1 Cyc., 561; Black on Tax Titles, Sec. 392; 9 Ency. Law (2d Ed. ), 152, 153; 1 Devlin on Deeds, 177-181.) An acknowledgment is essential to the validity of a tax deed. (R. S. 1899, Secs. 1894, 1896, 1897.) Clearly, if the treasurer should refuse to acknowledge a tax deed, the grantee could claim nothing thereunder, especially as against one claiming title to the same property. The tax deed not having been acknowledged until several days after the period for redemption had expired, the presumption must be that the deed was not delivered until it had been acknowledged.

The requirements of the statute upon a tax sale, in order to validate a deed, must be complied with by the treasurer. The acknowledgment required by statute must be made essentially as prescribed or the deed will be void. (R. S. 1899, Sec. 1897; Black on Tax Titles, Sec. 393; 3 Devlin on Deeds, Sec. 1409; 1 Cyc., 514, 547; Leftwich v. Richmond (Va.), 4 S.E. 651; Reddick v. Long (Ala.), 27 So. 403; Smith v. Watson, id., 254; Armstrong v. Hufty (Ind.), 55 N.E. 443; Goodykoontz v. Oleson (Ia.), 6 N.W. 263.)

The actual time of the delivery of a deed may always be shown by extraneous evidence. (1 Cyc., 560, 561; 1 Devlin on Deeds, Sec. 102; 9 Ency. Law, 152, 153.) The question of tender by the defendant Whitehead of the amount of the taxes is not before the court for consideration, because, in the first place, the case had not reached the state at which the matter of tender could have been considered in the trial court, and, in the second place, the only possible connection in which the so-called tender could have with the ultimate determination of this case could only be made apparent, if at all, when the defendant should prove that he did tender the money to the County Treasurer on September 16, 1901, and that the treasurer refused the same. It is submitted that the questions involved are so elementary that the further citation of authority is unnecessary; and that the judgment should be reversed upon two grounds at least--(1) that the deed offered in evidence was not void on its face, and (2) that the court erred in refusing to permit the plaintiff to prove the date of actual delivery.

D. W. Elliott, for defendants in error.

The general rules concerning the date of a deed, its delivery and acknowledgment, do not affect the matters at issue in this case. This is a case where the government by special statute undertakes to subject the property of a citizen to the use of the government. Hence, the question here is not the usual one occurring between individuals, but involves the exercise of a special statutory power. Therefore, if the tax deed was not made in accordance with the laws authorizing its execution, it must be held void, notwithstanding the general statement of the principles contended for by counsel for plaintiff in error. The government has no inherent power to deprive a citizen of his property for public use; and when the necessity therefor arises it can be done only by virtue of some statute specifically providing therefor; and this is particularly true of a proceeding for the sale of lands for unpaid taxes. (Cooley on Taxation, 470.) Statutes authorizing the sale of lands for taxes must be strictly construed and rigidly followed. (Id.; Blackwell on Tax Titles, 377; Black on Tax Titles, 256; Reeds v. Moulton, 9 Mo. 878; Brown v. Veazie, 25 Me. 359; Gomer v. Chaffee, 6 Colo., 314; Potts v. Cooley, 51 Wis. 353; Gage v. Bani, 141 U.S. 344; Clason v. Baldwin, 152 N.Y. 204; Burroughs on Taxation, 312, 313.) Surely the observance of the statute, as to the time allowed for redemption, is more than a mere formality.

A deed made under statutory power, such as a sheriff's deed on execution or mortgage sale, or a tax deed, can be made only at the time provided by statute, and if made previously it is absolutely void. (Freeman on Ex., p. 316; Pingrey on Mortg., Sec. 1981; Gorham v. Wing, 10 Mich. 485; Hall v. Yoell, 45 Cal. 584; Gross v. Fowler, 21 id., 391; Bernal v. Gleim, 33 id., 668; Dubois v. Hepburn, 10 Pet., 4; Anan v. Barker, 49 N. H., 161; Ex parte Bank, 7 Hill, 177; Blackwell on Tax Titles, Sec. 377; 25 Ency. Law, 419; Burroughs on Taxation, 326; Wood v. Coad, 94 N.W. 264.)

The tax deed in controversy being dated September 14, 1901, was executed before the time allowed by the statute for the redemption of the land sold had expired, and is, for that reason, void and conveys no title or interest in, or to, the land. (Anan v. Barker, 49 N. H., 161; Safford v. Conan, 60 N.W. 429; Whittlesey v. Happenyan, 39 id., 355; Wood v. Coad, 94 id., 264; Wettig v. Bowman, 39 Ill. 416; McGavock v. Pollock, 13 Neb. 535; Ward v. Phillips, 89 N. Ca., 215; Noble v. Douglas, 42 P. 328; Sprecher v. Wakeley, 11 Wis. 432; Lindsay v. Fay, 25 id., 460.) The deed itself was not introduced in evidence, the record in the office of the County Clerk being offered in its place, which record showed recording September 21, and that record is scarcely conclusive proof that the deed was really acknowledged on that date. But if it be conceded that the deed was not acknowledged until September 21, it would not show on its face its execution as of that date. The certificate of acknowledgment is not a part of the execution of the deed. At common law a deed was executed when signed and sealed, and the matter of acknowledgment is purely statutory and of comparatively modern origin. The official acknowledgment is only evidence of the fact of execution, namely: of something that had previously occurred. (Cooley's Black., pp. 294, 306.) The day of sale is to be excluded from the period allowed for its execution. (R. S. 1899, Secs. 1890, 1894, 3423; Daley v. Anderson, 7 Wyo. 1; White v. Hinton, 3 Wyo. 753.) Hence, the sale having occurred September 15, 1898, the regular redemption period would not expire until the last moment of September 15, 1901, but the date last named having fallen on Sunday, which is alleged in the separate answer of defendant Whitehead, and admitted in the reply to the separate answer of defendant Wilson, the taxpayer had all of the following day in which to redeem, namely: September 16, as Sunday must be excluded under the statute. (R. S. 1899, Sec. 3423; English v. Williamson, 34 Kan. 212; Gage v. Davis, 129 Ill. 236; Cable v. Coates, 36 Kan. 191.) The defective execution of a statutory power cannot be corrected or amended, and equity cannot supply defects in a tax title. (Burroughs on Taxation, 366; Black on Tax Titles, Sec. 211; 25 Ency. Law, 683, 681, 682.) Hence, the deed is void and not voidable. Courts may correct many recitals in ordinary deeds by evidence aliunde, but cannot correct or supply recitals in tax deeds. (Cartwright v. McFadden, 24 Kan. 662; Grimm v. O'Connell, 54 Cal. 522; Hubbell v. Campbell, 56 Cal. 527; Duff v. Neilsen, 90 Mo. 93; Eustis v. Henrietta, 91 Tex.)

Though ordinarily the date of a deed may be immaterial and need not be inserted, it is particularly important in the case of a tax deed, for the purpose of showing the time of the exercise of the statutory power. The pleadings, moreover, by the admissions contained in the reply, show that the plaintiff did apply for and obtain a tax deed on September 14, 1901; and it is submitted that the deed could not have been obtained at that time unless delivered. A deed is presumed to have been delivered at its date.

The judgment...