Jones v. Black
| Decision Date | 15 February 1907 |
| Citation | 88 P. 1052,18 Okla. 344,1907 OK 50 |
| Parties | JONES v. BLACK. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
A person holding a mortgage upon real estate, as security for a debt, is under no obligation to pay the taxes upon such property, unless there is some provision in the mortgage requiring him to do so.
[Ed Note.-For cases in point, see Cent. Dig. vol. 35, Mortgages §§ 526-531.]
A person holding a mortgage upon property may acquire title to the mortgaged premises by purchase at tax sale and obtaining tax deed therefor.
[Ed Note.-For cases in point, see Cent. Dig. vol. 35, Mortgages §§ 285-289.]
In an action brought for an accounting and to cancel a tax deed, which in substance alleges that B., while holding a mortgage upon the real estate of J., purchased the same at tax sale, thereby defeating the title of J. and his right of redemption, and alleging a demand for settlement of their account, does not state a cause of action.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 35, Mortgages, §§ 285-289.]
Error from District Court, Logan County; before Chief Justice John H. Burford.
Action by John L. Jones against C. B. Black. Judgment for defendant, and plaintiff brings error. Affirmed.
For dissenting opinion see 90 P. 422.
Brown & Stewart and Devereux & Hildreth, for plaintiff in error.
Cotteral & Horner, for defendant in error.
This case presents but one legal proposition. The issues arise upon a demurrer to the petition, which was sustained by the court below. The question presented is: Can a mortgagee acquire title to the mortgaged premises by his purchase of a tax certificate and obtaining the tax deed therefor so as to cut off the rights of the mortgagor in the premises?
The cases have been before the various courts in various forms and, while a casual reading might indicate that there is some conflict in the authorities upon the proposition, yet, after a careful reading of the different statutes and the different cases as presented, the seeming conflict does not, in fact exist. Under the old rule, where the mortgagee held the legal title, he was held not to be able to acquire title through tax sale. The same rule applies to a mortgagee in possession. Under our statute, a mortgagee holds his mortgage as security for the debt only, and, where there is no obligation in the contract on the part of the mortgagee to pay the taxes on the property, the authorities are uniform that he may acquire title through tax sale. In this case there was a provision in the mortgage that, in case of failure on the part of the mortgagor to pay the taxes, the mortgagee should have the right to pay the same. This provision, however, simply reiterates the right which he would have had without any such provision being contained in the mortgage. The provision does not obligate him to pay the taxes, but it gives him the right to do so upon a failure of the mortgagor to pay. This right the mortgagee would have had without this condition, and it neither broadens nor limits the legal rights of the respective parties. Under the present law and the condition of the parties as they exist in this case, there is no relation of trust or...
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