« 이전계속 »
erally and in due course as aforesaid offered for sale and bid off by the county treasurer of said county for the whole amount of taxes and charges then due and remaining unpaid on each of said parcels, tracts, and lots of said property hereinbefore described for the year 1892, and severally numbered, to wit: * * *
On the parcel, tract, or lot in said description numbered 15, nine and 56/100 dollars ($9.56). On the parcel, tract, or lot in said description numbered 16, seven and 77/100 dollars ($7.77). Whereas, the certificates for said lots and parcels of land above described were respectively made out, by the county treasurer of Logan county, to said Logan county, and retained in his office, in the name of the county treasurer, at such sale; and whereas, afterwards, the Bank of Indian Territory being desirous of purchasing the interest of said county of Logan in and to said real estate, lots, parcels, and tracts of land respectively, above described, by reason of the county treasurer bidding the same off in the name of, and for, said county of Logan; and whereas, the said Bank of Indian Territory did thereafter, and on the 29th day of December, A. D. 1893, pay to said county treasurer the amount of taxes, penalty, interest, and costs of sale and transfer up to said date for said parcels, tracts, and lots of land, respectively, to wit: For tract numbered 15, above described, ten and 53/100 dollars ($10.53); for tract numbered' 16, above described, eight and 60/100 dollars ($8.60). Being, as to each of said parcels, tracts, and lots of land, equal to the amount of taxes, penalty, interest, and cost of sale, and transfer of said tracts, respectively, paid to said county treasurer of Logan county on the 29th day of December, 1893, the said treasurer did then and there assign and deliver to said Bank of Indian Territory certificates of purchase respectively held by said county for said real estate as in such case made and provided by law, for and concerning each of the said tracts, parcels, and lots, and assigned the same to the said Bank of Indian Territory aforesaid, thereby transferring to the said Bank of Indian Territory all the interest of said county of Logan in and to said property;, and, whereas, the subsequent taxes for the year 1893 and the year 1894, amounting for each of said years respectively on each of said tracts and lots as hereinbefore numbered and described, as follows: On those numbered 15 and 16, assessed together, for the year 1893, seven and 15/100 dollars ($7.15); for the year 1894, thirteen and 73/100 dollars ($13.73), having been paid in full to the county treasurer of Logan county, Oklahoma Territory, in the above amounts, by the said Bank of Indian Territory, for the above lots, tracts, and parcels of lands, respectively, as provided by law. And whereas, the said Bank of Indian Territory did, on the 5th day of November, A. D. 1895, produce to the undersigned Jo
seph Stiles, treasurer of the county of Logan, in the territory of Oklahoma, the said certificates of purchase, respectively, for the tracts and parcels above described, in writing, the said certificates bearing date of the 7th day September, A. D. 1893, signed by Joseph Stiles, who at said date was the treasurer of said county of Logan, the said assignment of said certificates to the said Bank of Indian Territory being in writing and bearing the date of the 20th day of December, A. D. 1893, signed by the said Josepi Stiles, who at said date *
county treasurer of said county of Logan; and it appearing that the said Bank of Indian Territory is the legal owner of said certificates of purchase, and the time fixed by law for redeeming the said tracts, lots, and parcels of land therein described, respectively, haring now expired, and the same not having been redeemed as provided by law, and the said Bank of Indian Territory having demanded a deed for the said tracts and lots mentioned in said certificates, and the same being the least quantity of the tracts above described that would sell for the amount due thereon for taxes, costs, and charges. as above specified respectively, and it appearing that the said lots were legally liable for taxation and had been properly assessed and properly charged on the tax book or duplicate for the year 1892, and subsequent years above named, and that said lands had been legally advertised for sale for said taxes and were sold on the 7th day of September, A. D. 1893, now, therefore, this indenture made this 5th day of November, A. D. 1895, between the territory of Oklahoma, by Joseph Stiles, the treasurer of said county of Logan, of the first part, and the said Bank of Indian Territory, of the second part, witnesseth: That the said party of the first part, for and in consideration of the premises, and the sum of one dollar in hand paid, hath granted, bargained, and sold, and by these presents doth bargain, sell, and convey unto the said party of the second part, the Bank of Indian Territory, its successors and assigns, forever, the tracts or parcels of land mentioned in said certificates, and respectively described as follows, to wit: (15) All of lot numbered one (1) in block numbered eighty-four (84) in that portion of the City of Guthrie known as 'Guthrie Proper,' according to the duly recorded plat thereof. (16) All of lot numbered two (2) in block numbered eighty-four (81) in that portion of the city of Guthrie formerly known as 'Guthrie Proper,' according to the recorded plat thereof. Each of said tracts, lots, and parcels of land situate in the county of Logan and territory of Oklahoma. To have and to hold the same, with all the appurtenances thereunto belonging, to the said party of the second part, its successors and assigns, forever, in as full and ample a manner as the treasurer of said county is empowered by
law to sell the same. In testimony whereof, themselves acknowledge the execution there. the said Joseph Stiles, treasurer of said coun of to be their free and voluntary act for ty of Logan, has hereunto set his hand and the purpose named. Witness my hand and seal on the day and year aforesaid. Joseph official seal the date above written. Avery Stiles, County Treasurer. [Seal.]
A. Humphrey, Notary Public. [Seal.] My “Territory of Oklahoma, County of Logan - Comm. exp. Jan. 8, 1896."
Before me, R. Emmett Stewart, a “Filed for record May 9, 1900, at 2:15 p. county clerk, in and for the above-named
m. J. J. Nelson, Reg. of Deeds. [Seal.]” county and territory, on this 5th day of
“Territory of Oklahoma, Logan CountyNovember, A. D. 1895, personally appeared Joseph Stiles, to me known to be the county
ss.: I, J. S. Mabon, register of deeds in
and for said county and territory, do hereby treasurer of Logan county, Oklahoma Terri
certify that the within and foregoing writtory, and to me known to be the same person who executed the above and foregoing
ing is a full, true, and correct copy of the
original instrument as recorded in Book conveyance of land, to me known not to be the homestead of the grantor, and duly ac
A of Q. C. D. on page 418 of the records in knowledged the execution thereof to be his
my office. Witness my hand and official seal voluntary act and deed for the purposes
this 10 day of Sept., 1902. J. S. Mabon, Reg. named.
of Deeds, by H. A. Herwig, Dept. [Seal.)” Witness my hand and official seal the date above written. R. Emmett Stewart, To this petition a demurrer was interposed County Clerk. [Seal.] My commission ex
by defendant in the following words: pires
"Comes the defendant, Ananias Carnes, "Filed for record, November 8, 1895, at
and demurs to the plaintiff's petition for the 3:50 p. m. G. H. Dodson, Reg. of Deeds.
following causes: First, because his petition [Seal.]
fails to show facts sufficient to constitute "Territory of Oklahoma, County of Logan
a cause of action. Second, because plaintiff -ss.: I, J. S. Mabon, register of deeds
fails to show that he has made the necessary in and for the said county and territory do
tender, if defendant hold by defective tax hereby certify that the within and forego
title. Third, because plaintiff fails to show ing writing is a full, true, and correct copy a defective tax title. Fourth, because plainof the original instrument as recorded in
tiff fails to show that said tax deed should Book 6 of Deeds, on pages 365 to 373, in
be set aside and canceled, and that plain(lusive, of the records in my office. Wit
tiff is entitled to the possession of said real aess my hand and official seal this 10th day
property. Ananias Carnes, Def., by John of Sept., 1903. J. S. Mabon, Reg. of Deeds,
D. De Bois, Atty." by H. A. Herwig, Dept. [Seal.]"
This demurrer having been brought on for Exhibit B:
hearing was by the court sustained, and “Quitclaim Deed. The Bank of Indian plaintiff given five days in which to amend. Territory to Ananias Carnes. Know all Thereupon plaintiff amended her petition men by these presents that the Bank of Indi in manner and form following, to wit: an Territory, by U. C. Guss, President, and “Comes now the plaintiff, and by leave L. N. 1. Crozier, Cashier, for and in con of court, files this her amendment to her sideration of seventy-five (75.00) dollars original petition herein, and states and alin hand do hereby sell and quitclaim to leges: That the plaintiff is entitled to the Ananias Carnes the following real prop immediate possession of lots one (1) and two erty situated in Logan county, territory of (2) in block eighty-four (84) Guthrie Proper, Oklahoma, to wit: Lots one (1) and two (2) city of Guthrie, Logan county, 0. T. That in block eighty-four (84) in that part of the the pretended tax deed marked 'Exhibit A' city of Guthrie known as 'Guthrie Proper' and made a part of the petition herein is with all its appurtenances to said Ananias null and void and of no force and effect, Carnes or his administrators or heirs. Sign for the reason that the grantee, the said ed and delivered this eleventh day of Novem Bank of Indian Territory had no authority ber, 1897. The Bank of Indian Territory, and no power under its articles of incorporaU. C. Guss. President, L. N. F. Crozier, tion, and the laws under which it was charCashier.
tered, and the laws which were in force at “Territory of Oklahoma, County of Logan the time of the pretended sale, to acquire -Ss.: Before me Avery A. Humphrey, a no title to real estate other than for the purtary public in and for the above-named
pose of locating its banking business. That county and territory on this 16th day of the property herein mentioned, to wit, lots Nov., 1897, personally appeared U. C. Guss. one and two, in block eighty-four, Guthrie President, and L. N. F. Crozier, Cashier, of Proper, city of Guthrie, was not needed or Bank of Indian Territory to me known (or used for the location of any building or proven) to be husband and wife, and ex other purpose of said Bank of Indian Terriecuted the above conveyance of lands to tory. That a copy of articles of incorporame known (or proven) to be the homestead tion of said Bank of Indian Territory is filed for known to me or proven not to be the herewith and made a part hereof, marked Exhomestead of the grantors and each for bibit C. That under said articles of incor
poration and the only power and privilege of allegations of error are set out in the brief the Bank of Indian Territory was to do a gen of plaintiff in error, but, as they are all eral banking business, under the laws of contained under four general heads, they will Oklahoma; that is, that it was to be a be thus considered in this opinion. The bank of deposit and discount, and not of plaintiff by his petition in this action seeks issue. V. J. Jones, Attorney for Plaintiff.” to recover lots 1 and 2 in block 81 in the city
To the petition as thus amended, defend of Guthrie which had been sold in September, ant again demurred, which demurrer is in
1893, for the taxes of 1892. The defendant the following words:
was in possession at the time of bringing the "Comes defendant, Ananias Carnes, and action, claiming an estate therein under and demurs to plaintiff's amendment to his orig by virtue of a deed issued pursuant to such inal petition for the following causes: (1) tax sale. The cause was tried in the court Because it fails to state facts sufficient to below upon a demurrer to the plaintiff's constitute a cause of action. (2) Because petition, which was sustained by the trial it fails to state facts suflicient to show that court. the tax deed through which defendant. The plaintiff, complaining of this judgment Ananias Carnes, holds land does not give of the court, says that, under the provisions defendant prior title to the lots therein con of the statute, in an action to recover posveyed. John D. De Bois, for Def. Ananias session of real property, it is only necessary Carnes." Indorsed: “No. 3786. In the Dis to state that he has a legal or equitable trict Court in and for Logan Co., 0. T. M. estate therein, and is entitled to the possesM. Jones, Plf., v. Ananias Carnes, Def. De sion thereof, and that the defendant umlawmurrer to Plaintiff's Amended Petition. Filed fully keeps him out of the possession, and Dec. 31, 1902. Thos. A. Neal, Clerk Dis that such allegations may be found in the trict Court."
petition. In this the plaintiff is unruestionOn the 10th day of February, 1903, the able correct. If the petition had contained cause again came on for hearing upon the only these simple recitals of fact required by demurrer of defendant to the plaintiff's peti
the statutes, probably no demurrer would tion, and after hearing counsel the court have been lodged thereto. The defendant in again sustained the demurrer, the orders of
such case would have been compelled to anthe court thereon being in the following
swer, which he might do by a general denial, words:
and thereafter the facts upon which the "Comes now the plaintiff and defendant rights of either party was based, would have by their respective counsel, and the de
to be shown by evidence produced upon fendant submits a demurrer to the amended the trial. The plaintiff, however, instead of petition herein, and, the court being fully following the simple remedy prescribed by advised, it is by the court ordered that the the statute, set forth in his petition first, said demurrer be and it is herehy sustained;
the character and nature of his title, and to said ruling the plaintiff excepts, and an
the source from which it was derived, and nounces to stand on the pleadings herein."
then proceeds to set out in full the defendOn the same day. February 10, 1903.
ant's title, and the source from which it was plaintiff filed her motion for a new trial,
derived, to wit, the tax proceeding above which motion is as follows, to wit:
referred to. Apparently the purpose was to “Comes now the plaintiff and moves the
get the facts all before the court, so that the court to grant her a new trial in this cause,
case might be fully determined upon the adfor the reason that the judgment of the
mission confessed by the demurrer. While court is contrary to the law and the plead
the allegation required by the statute may be
found by a careful reading of plaintiff's long ings. U. M. Jones, Attorney for Plaintiff.” Indorsed: "3786. Jones v. Carnes. Motion
and cumbersome petition, covering with the for new trial. Filed February 10, 1903.
exhibits some 35 pages of closely printed legal T. A. Veal, ('lerk, hy C. II. Griswold, Dep
(ap, yet such allegations must be considered
in connection with all the other facts pleaded nty." Which being by the court overruled, and
and admitted by the plaintiff; and we think denied, the case comes to this court upon
the plaintiff is in error in his argument when
he claims that the three statements of fact error.
required by the statutes to make a good U. M. Jones, for plaintiff in error. John
petition being found in this petition, it is D. De Bois, for defendant in error.
therefore good, independent of any other facts
therein contained. If such other facts thereGILLETTE, J. (after stating the facts). in contained negative the truth of the allegaThe ultimate object of this action is to de tions required by the statute, then he has termine the validity or invalidity of the i simply pleaded too much, and the demurrer tax (leed to lots 1 and 2 of block St in the would have to be sustained, notwithstanding city of Guthrie, issued for the delinquent tax the statutory requirements are found in the es for the year 1892, for which tax the petition. lots were sold by the treasurer of Logan The next contention of the plaintiff in er(ounty on the 7th day of September, 1893, ror is that the court erred in holding that and were bid in by said treasurer. Twelve the tax deed was valid on its face. This
position of plaintiff is taken because the tax tax deed in question was not void under its deed of the defendant is set out in the preti- recitals, vorrectly determined that question. tion, and he has pleaded the invalidity there The third proposition presented by the of as a ground of his right of recovery. plaintiff in support of his petition as against The only infirmity complained of in the tax the demurrer is that "the tax sale under deed is that it fails to show that at the which defendant Carnes claims adversely is time of the sale of the property, there were roid for various reasons other than tiose no bidders therefor offering the amount of whirlper on the face of the deed." the taxes for the same (the property having He urges that the petition sets up illisgal been purchased by the county at the sale), lovies and assessments for which the propand the title of the defendant depending | erty was sold, which are admitted to be true upon the validity of the purchase by the coun by the demurrer. Under this contention thie ty at the tax sale, and as assignment of the plaintiff seeks to show by the allegations title so purchased. Inder the determinations of the petition that the tax deel of defendof this court, llanenkratt y. Ilamil, 10 Okl. ant is void for reasons not appearing on 219, 61 Pac. 10.30, and Wade v. Crouch, 14 its face, and which reasons he urges have Okl. 593, 78 Pac. 91, it is necessary to a been set out in the petition. The correctvalid tax deed wliere the property was pur
ness of this contention must be determined chased at tax sale by the county, that such
by a determination of the sufficiency of the deed should show that the land at the time allegations of the petition to show that the of the sale could not have been sold to deed was void. The allegations of the petisome other party for the same price, provided tion upon which this contention is founde that treasurer of the county had not made his are as follows: "That said written instrubid or offer. And it is now urged by the ment is void and illegal and of no legal plaintiff that the tax deed set out in the efi'ert for that interest, penalties, costs, and petition does not show the authority of the expenses were attached to, and charged county treasurer to buy the same at the tax against, said real property before the taxes sale, by showing that there were no other for the year 1892 were delinquent, said taxbidders offering the amount due for taxes. es, together with said interest, penalties, To so hold with reference to the deed in costs, and expenses being the taxes for which question would be equivalent to requiring a said real property purports to have been soll. strict construction to be given to the statute That said written instrument is void and authorizing the sale of real estate in satis illegal and of no legal effect and convey's faction of taxes levied against the same.
no right, title, or interest in or to said real The deed under consideration recites as fol- property unto the said defendant, for that il low's touching the sale: "Whereas at the Separate siliool tax was levied and chargeil place aforesaid, neither of said parcels, tracts against said real property for the year 1992, or lots of property could be sold for the
for which said tax said real property puramount of taxes and charges thereon, and ports to have been sold. That said written each of them was severally and in due instrument is void and illegal and of no lega! course as aforesaid offered for sale and bid effect and conveys no right, title, or interest off by the county treasurer of said county, in or to said property unto the said defendfor the whole amount of taxes and charges aut for that a special tax (city)' was levied then due and remaining unpaid." The lan and vharged against said real property for guage, "neither of said pureels, tracts or the year 1892, and said 'special tax (city) lots of property could be sold for the amount made a part of the taxes for which said of taxes and charges thereon," we think by
real property purports to have been sold." a fair construction brings the transaction
is hereinbefore determined, tlie defendant's within the meaning of the statute which
tax deell was sufficient on the face of it to provides that the county treasurer is auihor
sustain his title. The plaintiff by the aboveizeil to bid off all real estate offered for sille
quoted allegation is seeking to present to only "in case there be no other buyers offer.
the court legal grounds for avoiding such ing the amount due." The statutes touch
deed, not shown by the deed itself, but whicli ing transactions of this kind sertion 0037
arose under the procedure by which the Wilson's Rev. & Ann. St. 1903. provides:
county treasurer acquired authority to issue
such deed and thereby convey the plaintiff's "The rule that tax proceedings are to be
property. strictly construed as against the tax pur
There are three grounds above stated for chaser, shall not apply to proceedings under
avoiding this tax deed, and the question here this act, but in all courts its provision shall
presented under the demurrer is, does any be liberally construed, to the end that its
one of them state suflicient facts? The first provisions in all proceedings thereunder shall
is that illegal interest, penalties, costs, and be sustained." Under the liberal construction
expenses were charged against said property here authorized we think the language used before the taxes of 1892 were delinquent. in the deed equivalent to a declaration that There is no allegation that the plaintiff offerthe lots in question could not be sold to ed to pay such taxes before they were deany other buyer offering the amount due, and linquent, minus the interest, costs,' penalties, the trial court, therefore, in holding that the and expenses, nor is there any allegation
that such items were improperly taxed when and therefore could convey none to defendit became delinquent. The presumption is ant in error. The charter of the bank is set that they were properly charged as items due out in the plaintiff's petition, from which it from the plaintiff when he became delinquent appears that the bank was organized under in the payment of his taxes. In addition, we the laws of the territory of Oklahoma, the llo not think it sufficient to state these mat second section of the articles of incorporaters in such a general way. What interest, tion providing: “This corporation is formed charges, costs, and expenses were illegally for the purposes of carrying on the business taxed should have been specifically stated in of a bank of discount and deposit but not of order that the court might determine from issue, and as such bank of discount and dethe allegations of the petition itself whether posit, doing a general banking business.” or not the property had been sold and con The charter bears date of May 31, 1892. It veyed to cover illegal charges. The second is suggested in defendant's brief that "there proposition is that the deed is of no legal is nothing in the pleadings showing that the effect because a separate school tax was Bank of Indian Territory did not have some levied and charged against the property for kind of an interest in, or lien upon, said lots the year 1892. This allegation is not suffi at the time of sale.” But +'?t being a fact (ient to avoid the deed, unless such tax was particularly within the knowledge of defendlevied without authority of law. The court ant is one for him to plead and cannot be takes judicial notice that in 1890 the Legis- presumed by the court. The doctrine that lature authorized the establishment of sepa corporations possess only the powers expressrate schools for white and colored children, ly conferred upon them and those incident and provided for the levy of a tax for the and necessary to enable them to carry out support of such separate schools. The court and enforce those directly conferred has long cannot, therefore, examining this allegation been too well established to now admit of of the petition, say that a separate school argument or need citation of authorities, so tax was not properly chargeable against this that, if it were necessary to resort to such property, for the law authorized it and it presumption in order to determine this case, was done, and, in the absence of any allega it would have to be decided against the detion in the petition showing some illegality fendant. But we do not think it necessary, in the manner in which it was levied and in order to determine the rights of the parharged against this property, the presump ties in this controversy, to indulge in any tion is that it was levied in accordance with speculation upon this subject. The bank took the provisions of the law. This allegation the title to the property in the manner set of the petition, therefore, is insufficient upon out in the petition. So much is certain, and, lemurrer to present any question to be deter if its right to so purchase and obtain the mined by the court. The third allegation, title to the premises is now open to be chalthat a special city tax was levied and charged lenged by this plaintiff, the plaintiff must unagainst the property for the year 1892, is an doubtedly recover. No doubt the power of a insufficient allegation, for the same reasons corporation to purchase and hold real propstated above in reference to the second ob erty is limited by the objects of its creajection. The statute of 1890 authorized cities tion, and, even where there may be no exof the first class to levy special taxes for press restrictions, it cannot purchase for a making and repairing sidewalks, and for purpose foreign to those objects. As stated paving, macadamizing, curbing, and gutter in Ency. of Law, vol. 7, p. 718, "when a coring streets and alleys, and taxing the same poration is not organized to deal in land, as to abutting lot owners, which assessment, in case of railroad companies, banking comunder the provisions of the act, is certified panies, insurance companies, religious and to the county clerk to be placed on the tax educational corporations, etc., the purchase roll for collection, and thereafter collected of land not needed in its business, for the by the county treasurer subject to the same mere purpose of holding and selling it again, penalties for nonpayment as other taxes. It is ultra vires,” etc. But, while this is true, follows, therefore, that, for a sufficient al it does not follow that an executed contract legation in this respect to challenge the tax or a wholly performed transaction in which deed, it was necessary to set out wherein a corporation has received and passed to the special city tax was void and illegal. another the title to real estate, in a manner Otherwise the presumption is in favor of its and for a purpose foreign to the object of its regularity. We are therefore unable to find creation, can now be inquired into and set reversible error in the judgment of the court aside as void, in a case to which the corporabelow holding the petition insufficient upon tion is not a party, and at the instance of any demurrer on the grounds and for the reasons private party holding an adverse claim to last-above enumerated.
the premises, upon the ground that the conBut one other proposition is relied upon tract or transaction was ultra vires. In such and discussed by the plaintiff in error, and case only the sovereign can complain and that is that the Bank of Indian Territory | punish the corporation for a violation of its (from whoin defendant in error received the powers. title) had no right, power, or authority to In the case of Thomas v. Railroad Co., 101 receive title to the premises in question, U. S. 71, 25 L. Ed. 950, Mr. Justice Field, de