State ex rel. Com'Rs of the Land Office v. Bd. of Com'Rs of Nowata Cnty.
| Decision Date | 17 October 1933 |
| Docket Number | Case Number: 21592 |
| Citation | 1933 OK 543,25 P.2d 1074,166 Okla. 78 |
| Parties | STATE ex rel. COM'RS OF THE LAND OFFICE v. BOARD OF COM'RS OF NOWATA COUNTY et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Taxation--Exclusive Statutory Method of Collecting Delinquent Taxes on Real Estate--Foreclosure of Tax Liens in District Court not Authorized.
Article 28, chapter 66, O. S. 1931, provides a full and comprehensive system by which delinquent taxes on real estate may be collected by a sale of such real estate by the county treasurer, the collecting agency. Such method, being the only one authorized by the statutes, is exclusive for the enforcement of such tax liens, and a foreclosure of such liens in the district courts of this state is unauthorized.
2. Same -- Courts -- Enforcement of Tax Liens in Courts not Authorized by Constitution or Statute.
The judicial system of this state is the creature of the Constitution and the statutes of the state. The supreme sovereign power of this state rests in the people of the state. The exercise of this power must be through the Legislature or the people by means of the initiative or referendum, and this supreme sovereign power having never authorized the enforcement of tax liens in the courts of this state, no such power or jurisdiction is vested in the district courts.
3. Same--Schools and School Districts--Landowner not Required to Pay Taxes on Land to Prevent Sale Under Mortgage Given to Secure Loan of State School Funds.
In an action to foreclose a mortgage on real estate given to secure a loan of state school funds from the Commissioners of the Land Office there is no authority of law for the trial court to require the owner of the land to pay the taxes on the land in order to prevent a sale of the land under a mortgage.
4. Taxation -- Personal Judgment Against Landowner for Taxes Due not Authorized.
There is no authority of law for the rendition of a personal judgment against the owner of land for the amount of taxes due thereon.
5. Same--States -- Action Against State to Have Its Lien for Taxes Decreed Subordinate to Other Lien not Authorized.
No action can be maintained against the state for the purpose of having its lien for taxes decreed to be subordinate to some other lien, without a legislative enactment authorizing such suit against the state. There has been no such legislative enactment.
6. Same -- Action to Foreclose Mortgage Given to Secure Debt Due Commissioners of Land Office--County Treasurer or Board of County Commissioners not Proper Parties by Reason of State's Lien for Taxes.
The fact that the state has a lien for taxes due to it does not make the county treasurer or the board of county commissioners a necessary or proper party in an action to foreclose a mortgage given to secure a debt due to the Commissioners of the Land Office.
7. Same--State's Mortgage Lien and State's Tax Lien Held of Equal Rank.
The lien of the state under a mortgage given to the Commissioners of the Land Office and the lien of the state for taxes due to it are co-equal, that is, of equal rank.
8. Same -- Statute Making Tax Lien Secondary to State's Mortgage Lien Construed.
The provisions of section 12758, O. S. 1931, apply only when land, upon which any mortgage or other lien exists in favor of the state of Oklahoma or the Commissioners of the Land Office or any other commission, board, or officer having power to loan public funds or any funds under the control of the state upon real estate security, shall be sold for delinquent taxes.
9. Same.
Under the provisions of section 12758, O. S. 1931, when such lands have been sold for delinquent taxes, such tax shall be secondary at all times to the lien of the state or of the Commissioners of the Land Office, or of such commission, board, or officer.
10. Same.
The evident purpose of the provisions of section 12758, O. S. 1931, was to obviate the necessity of the state paying taxes on land upon which it held a mortgage, in order to prevent a sale of such land for taxes and the consequent loss to the state of the amount of indebtedness secured by its mortgage.
11. Same.
The provisions of section 12758, O. S. 1931, were intended to apply only when there has been a sale of such land for delinquent taxes to some person other than the state, and where there has been a sale of such land for taxes to the state and a subsequent issuance of a tax sale certificate or tax deed to some person other than the state, which would operate to defeat the lien of the state for the amount of the indebtedness secured by the mortgage.
12. Same.
The meaning of the provisions of section 12758, O. S. 1931, is that the lien of the state for taxes on land and the lien of the state for an amount secured by a mortgage on land are co-equal, but that the lien of the state for the amount of any indebtedness secured by a mortgage on the land should be superior to the lien of any individual for taxes.
13. Same--Case Overruled in Part.
The statement in State ex rel. Com'rs of Land Office v. National Bank of Commerce, 139 Okla. 134, 281 P. 579, that the proceeds of the sale should be applied to the payment of the tax lien for delinquent taxes, is specifically overruled.
14. Same--Sale in Foreclosure of State's Mortgage or Sale of Land for Taxes not Operative to Extinguish the Other Lien.
A sale in foreclosure of a mortgage to the Commissioners of the Land Office is made subject to the existing tax lien in favor of the state; a sale of land for taxes is made subject to an existing mortgage on the land in favor of the Commissioners of the Land Office, and a sale in satisfaction of either lien does not operate to extinguish the other lien.
15. Same--Real Estate Acquired by State not Subject to Taxes Previously Assessed.
Real estate which is acquired by the state in its sovereign capacity is thereupon absolved and freed of further liability for the taxes previously assessed against it, and a county treasurer is thereafter without legal authority to sell the same at a resale for taxes.
16. Same.
When land is sold in foreclosure of a mortgage given to secure an amount due to the Commissioners of the Land Office, the purchaser takes the title thereto subject to the lien of the state for taxes due to the state, but, if the purchaser thereof is the state acting through the Commissioners of the Land Office, the land is absolved and freed of further liability for the taxes and the lien therefor.
17. Same--Taxation of State's Property Inconsistent With Theory of Government.
The object of taxing property is to produce the revenues with which to conduct the business of the state, and it is entirely inconsistent with our theory of government for the property of the state to be taxed, or sold for taxes, in order to produce money to be expended by the state.
Appeal from District Court, Nowata County; Wayne W. Bayless, Judge.
Action by the State on relation of the Commissioners of the Land Office against the Board of County Commissioners of Nowata County et al. From the judgment, plaintiff appeals. Reversed and remanded, with directions.
Geo. E. Merritt and Haskell Paul, for plaintiff in error.
J. A. Tillotson, Co. Atty., for defendants in error.
¶1 Suit was instituted in the name of the state of Oklahoma on the relation of the Commissioners of the Land Office, in the district court of Nowata county, Okla., against the makers of a promissory note and a real estate mortgage securing the same, and other persons claiming interest in the land covered by that mortgage. It sought to recover a judgment for the amount due to it, to have its mortgage foreclosed, and to have all of the defendants barred of any interest in and any right or title to the land secured by the mortgage. Included among the defendants were the county treasurer and the board of county commissioners of Nowata county. They filed an answer in which they claimed a lien for unpaid taxes. The defendant Commerce Trust Company filed an answer in which it claimed a lien by virtue of a certain tax sale certificate owned by it, which evidenced unpaid taxes against the land. The county treasurer and the board of county commissioners asked that they be decreed to have a lien on the land superior to that of the plaintiff. The Commerce Trust Company asked that it be decreed to have a lien thereon co-equal with that of the plaintiff. The cause was tried to the court on an agreed statement of facts. The court rendered judgment in favor of the plaintiff for the amount due to it under its mortgage and for the foreclosure of its mortgage lien on the premises. It rendered judgment in favor of the county commissioners and the county treasurer of Nowata county for the amount of the taxes due to the state, for which amount it adjudged that they have a lien superior to the lien of the plaintiff. It rendered judgment that the lien of the plaintiff was superior to the lien of the Commerce Trust Company. It ordered that, in case the defendants failed for six months from the date of the rendition of the judgment to pay the amounts so found to be due, an order of sale should issue to the sheriff of Nowata county, commanding him to advertise and sell according to law, without appraisement, the land and to apply the proceeds as follows: First, in payment of the lien for taxes due to the state; second, in payment of the costs of the action, including the cost of the sale; third, in payment of the amount due to the plaintiff; and fourth, in payment of the claim of the holders of tax sale certificates, in the inverse order of their issuance. From that judgment the plaintiff appealed to this court.
¶2 That judgment is erroneous in a number of particulars. It is erroneous in that, by its terms, in order to prevent a sale of the land, the owner thereof not only must pay the amount due to the state under the note and mortgage given to the Commissioners of the Land Office, but it must pay all of the taxes due to the state and all amounts...
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