Wilson v. Wood

• Decision Date: 30 June 1900
• Citation: 1900 OK 87,10 Okla. 279,61 P. 1045
• Parties: JANE WILSON v. WALLACE WOOD, JR., A. P. BOND, AND W. J. PATTERSON.
• Court: Oklahoma Supreme Court

1900 OK 87

61 P. 1045

10 Okla. 279

JANE WILSON v. WALLACE WOOD, JR., A. P. BOND, AND W. J. PATTERSON.

Supreme Court of Oklahoma

Decided: June 30, 1900

Appeal from the District Court of Garfield County; before B. F. Burwell, District Judge.

Syllabus

¶0 1. TAX CERTIFICATE ASSIGNMENT. A tax certificate represents an interest in real estate, and can only be assigned so as to entitle the assignee to a deed thereon, by the assignor executing such assignment and acknowledging the same before some officer having power to take acknowledgement of deeds. If the assignment is made by an attorney in fact, the power of attorney must be executed and acknowledged in the same manner that deeds are executed and acknowledged. No mere agent has power or authority to assign and acknowledge the assignment of a tax certificate so as to authorize a tax deed to issue to such assignee.

2. TAX DEED--Certificate and Assignment Necessary to Validity. A tax certificate and a valid assignment thereof, where the assignee claims title under a tax deed, are essential and necessary to the validity of the deed, and to the authority of the taxing powers to divest the title of the former owner or those claiming through him.

3. TAX DEED, CONCLUSIVENESS. The legislature has no power to declare a tax deed or the recitals therein conclusive evidence of a compliance with those matters which are essential to the exercise of the taxing power, or to those matters which are necessary to be done in order to divest the title of the former owner or those claiming through him, and to execute a valid deed of conveyance.

4. CONSTITUTIONAL LAW--Trial Required. In judicial investigations the law of the land requires an opportunity for a trial, and there can be no trial if only one party is suffered to produce his proofs. Except in those cases which fall within the established doctrine of estoppel at the common law, or cases resting on like reasons, it is not within the power of the legislature to declare that a particular item of evidence shall preclude a party from establishing his rights in opposition to it.

J. S. Jenkins, for plaintiff in error.

H. B. Mitchell, for defendants in error.

BURFORD, C. J.:

¶1 This was a suit in equity to cancel a tax deed. The plaintiff in the court below was the holder of a mortgage upon the real estate described in the tax deed. Alfred P. Bond was the owner of the land, and Jane Wilson the holder of the tax deed. The land was sold for taxes, and a certificate of sale issued to W. J. Patterson, and it was alleged in the petition that the tax certificate had never been properly assigned to Jane Wilson, but that a pretended assignment had been made by one John Holzapfel, as agent, who had no authority to make said assignment, and that on said pretended assignment the county treasurer had executed a pretended deed to Jane Wilson, which was in violation of the rights of the mortgagee. It was further alleged that a tender of a sufficient sum of money had been made to pay all taxes, penalties, costs and interest for which the property had been liable, and the tender was further offered in court. The plaintiff asked for a foreclosure of his mortgage, the cancellation of the tax deed, and sale of the land to pay his mortgage debt. The tax certificate and assignment thereon, and the tax deed, were each made exhibits to the petition. The certificate shows that it was issued by the county treasurer of Oklahoma county on the 18th day of November, 1895, to W. J. Patterson, the purchaser at tax sale of the real estate described therein. It bears a written assignment, executed January 13, 1898, to Jane Wilson, signed, "W. J. Patterson, by John Holzapfel," and on the same day Holzapfel acknowledged the execution of the assignment before a notary public, as his own free act and deed, as agent for W. J. Patterson. The tax deed was executed on June 28, 1898, by the county treasurer to Jane Wilson, on presentation of the certificate and assignment above described.

¶2 A demurrer was filed to the petition and overruled. The defendant Jane Wilson then filed her answer in which she denied that her tax deed was void, denied that the tax certificate or the assignment from Patterson was void or invalid, and averred that she paid full value for the same, and received said certificate; that she delivered said certificate to the county treasurer and received said deed, and that no tender of the amount of taxes "admitted to be due" had been made to her. She prayed that her title be quieted, and plaintiff's mortgage cancelled. A demurrer was filed to this answer, which was sustained by the court. The defendant elected to stand on the answer, and the court rendered judgment for plaintiff as prayed in his petition. From this judgment Jane Wilson appeals.

¶3 But one question is presented and argued by plaintiff in error. It is contended that the statute, sec. 5667, makes a tax deed conclusive, "That the grantee named in the deed or his assigns was the purchaser," and that the court erred in considering the assignment of the tax certificate and holding such assignment void. This incidentally presents two questions, viz: First, How may a tax certificate be legally assigned, and Second, Is the certificate and assignment essential to the validity of the estate conveyed by the tax deed? Section 5657 provides:

"The purchaser of any tract of land sold by the county treasurer for taxes will be entitled to a certificate in writing describing the land so purchased and the sum paid and the time when the purchaser will be entitled to a deed, which certificate shall be assignable and said assignment must be acknowledged before some officer having power to take acknowledgment of deeds; such certificate shall be signed by the treasurer in his official capacity, and shall be presumptive evidence of the regularity of all prior proceedings."

¶4 Section 5666 provides:

"That if the land is not redeemed within two years, and the certificate of purchase has not been returned for cancellation, the treasurer shall execute a deed to the purchaser, his heirs or assigns, which deed shall vest in the grantee an absolute estate in fee simple in such land."

¶5 While the tax certificate does not pass title to the land, it is evidence of an equitable interest, which may ripen into a legal title, and therefor does convey an interest in land. The certificate is a part of, and is essential to the sale. There cannot be a completed sale without it. It is one of the essentials necessary to confer title on the owner, and hence cannot be dispensed with. It is not a negotiable instrument, and cannot be assigned except where authorized by statute; then the statutory mode of assignment must be followed. In the absence of a statute authorizing an assignment of a tax certificate, the interest in the land of which the certificate is the evidence can only be conveyed in the manner that real estate is conveyed. Where an assignment is made without authority of law, and a tax deed is made to the assignee, the deed will be void. (Black on Tax...