Mattocks v. Mclain Land & Inv. Co.

• Decision Date: 18 February 1902
• Citation: 1902 OK 8,11 Okla. 433,68 P. 501
• Parties: A. J. MATTOCKS AND J. J. MATTOCKS v. THE MCLAIN LAND AND INVESTMENT COMPANY.
• Court: Oklahoma Supreme Court

1902 OK 8

68 P. 501

11 Okla. 433

A. J. MATTOCKS AND J. J. MATTOCKS v. THE MCLAIN LAND AND INVESTMENT COMPANY.

Supreme Court of Oklahoma

Decided: February 18, 1902

Error from the District Court of Kingfisher County; before C. F. Irwin, Trial Judge.

This is an action brought by The McLain Land and Investment company to recover possession of land from plaintiffs in error, J.

J. Mattocks and A. J. Mattocks, his wife. The evidence showed that the company was entitled to the relief sought for, unless it should be found that a tax deed taken by the wife, A. J. Mattocks, was valid. The deed was issued March 11, 1898, and the suit was begun May 11, of the same year.

The evidence showed that the land was sold for the taxes of 1894 to L. A. Bigger, who signed his name to the assignment of the certificate in blank, and it was in this condition when presented to the treasurer for a deed on April 11, 1898. The name of Mrs. A. J. Mattocks was inserted in the certificate, at the time, by the deputy treasurer, at the request of one Horton. The assignment of the certificate bore no acknowledgment.

A tax warrant was issued by the county clerk to the county treasurer, authorizing him:

"To collect the within tax of 1894, in and for King-fisher county, O. T.

"Witness my hand and seal of office this 12th day of December, A. D. 1894.

"W. C. LONG, County Clerk.". .

The tax warrant did not bear the official seal of the county clerk.

Syllabus

¶0 1. TAX WARRANT--Form of. Since there is no authority to the county treasurer for the collection of taxes, except upon the warrant issued to him under the law by the county clerk, which provides that the warrant shall be issued "under the hand and official seal" of the county clerk; and as the county clerk is an officer having an official seal, it is held that a warrant issued by him without the use of the official seal is invalid, and contains no authority for the collection of taxes.

2. TAX CERTIFICATE-- Assignment. Under the statute which authorizes an assignment of a tax certificate, but that the assignment shall be acknowledged before some officer having authority to take acknowledgments of deeds, an assignment of a tax certificate without such acknowledgment is void.

Bradley & Bradley, for plaintiff in error.

W. C. Stevens, for defendant in error.

MCATEE, J.:

¶1 It has heretofore been held in this court in Frazier v Prince, 8 Okla. 253, 58 P. 751, that "a sale of real estate by the county treasurer without having previously received. the warrant of the clerk directing the collection of taxes for which the real estate was sold, is without authority of law, and a tax deed for such real estate issued to the purchaser thereof, by the treasurer, is absolutely void."

¶2 Section 5631 of the Statutes of 1893, authorizing the sheriff to collect taxes, provides that "the county clerk shall attach to the lists, his warrant under his hand and official seal, in general terms requiring the treasurer to collect the taxes therein levied according to law * * * *."

¶3 It is stated by Judge Cooley in his work on Taxation, 292, that "before the treasurer is authorized to proceed in the collection of taxes, he must have his warrant for the purpose, in due form of law * * * *Whatever the statute provides for, in this regard, the collector must have, and he is a trespasser if he proceeds to compulsory action without it.

"Upon this point the decisions are numerous and uniform * * * *.

"There must also be a law authorizing the issue of a warrant, and some person authorized to issue it, and it must conform to the law authorizing it, and be issued by the proper person designated by law, or it is no protection to a collector. No question is made anywhere of the correctness of this doctrine. Whatever may be the requisites of the warrant under the statute, care

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