67 P.2d 250 | N.M. | 1937
Lead Opinion
From a decree for the appellee (plaintiff below) against appellants (defendants below) quieting title to certain real estate, this appeal has been prosecuted. Only one proposition requires discussion.
The complaint contains a statutory action to quiet title. An answer was filed by one of the defendants (appellant), containing denials and certain affirmative allegations assailing the validity of a tax deed relied upon by plaintiff as the source of his title. A demurrer was filed to the affirmative portions of the answer upon the ground principally that the allegations thereof fail to state facts sufficient to constitute a defense to the cause of action set forth in plaintiff's complaint. This demurrer was sustained and appellant declined to amend; whereupon judgment was entered for appellee.
We assume that when the court ruled upon the demurrer there was presented to him the same picture that is presented to *237 us in the pleadings and briefs of counsel for appellant. So viewing it, it appears that the appellant had been the owner of the property involved; that said property was sold for delinquent taxes and never redeemed; that a tax sale certificate describing said property was issued to Curry county, filed for record, and thereafter by the county sold and delivered to Walter W. Mayes, one of the attorneys for appellee, who delivered same to the treasurer and tax collector of Curry county, who, in turn, issued the tax deed in exchange therefor to appellee; that the said Walter W. Mayes attempted to assign the certificate to plaintiff by indorsement; that said indorsement by Mayes was made in blank; that the name of plaintiff did not appear therein; that it was not dated; that no consideration was specified therein; that the name of plaintiff to whom the tax deed in question was issued appeared no place in the tax proceedings until he appears as grantee in the tax deed. It is assumed that plaintiff, the physical holder of the certificate, presented it to the treasurer and demanded the deed which was issued to him, or that said certificate was presented to the treasurer and demand made by his attorney, Walter W. Mayes, that deed be executed to plaintiff. From these representations, it is claimed that the county treasurer acted in an unwarranted and illegal manner in delivering a tax deed to the plaintiff, and that consequently said tax deed is void.
Appellant relies almost exclusively on the decision of the Territorial Supreme Court in Territory v. Perea,
It is likewise to be noted that the court put much emphasis on the fact that the application of the statute relative to assignment of tax sale certificates was made to a mandamus case and not to a suit in equity.
In considering the views of the Supreme Court of Iowa, for which our court manifested a respect, and in differentiating it, the first thing Judge McFie said after the citation (Swan v. Whaley,
Black on Tax Titles, in section 316, says: "But in some of the states, it has been provided by statute that such certificates `shall be assignable by indorsement.' There is, however, some difference of opinion as to the proper construction of such a statutory provision. We find one case holding that the mere writing of his name by the purchaser on the back of the certificate does not constitute an `indorsement,' and that a person to whom the certificate is delivered by the purchaser, with his name so written upon it, has no authority, by virtue of such delivery, to write a formal assignment thereof above the signature. But this view is not sustained by the weight of authority. On the contrary, the authorities appear to agree that the design of such a statute is to make the certificate quasi negotiable, so that it may pass from hand to hand, carrying all rights with it, by a mere indorsement in blank."
The one case cited is Territory v. Perea, supra. However, we do not quarrel with the dictum of Judge McFie in that case. We merely say it is not persuasive in the case at bar.
There are a number of distinguishing features between that mandamus action and the case at bar, which is a suit in equity. Some of them are of greater importance than others, but we will mention several. The indications are that our Territorial Supreme Court would have been inclined to adopt the holding of the Iowa *239
Supreme Court in Swan v. Whaley et al.,
The court in the Perea Case invoked the argument that it would be a dangerous thing to permit a person claiming to be the holder of a certificate to write a formal assignment over the alleged signature of the assignor after his death. The court suggested that as an assignment is a conveyance, the form of the assignment might be explained by testimony which would disclose whether his act of indorsement on the certificate was intended to be a conveyance or not. Manifestly under the facts in the Perea Case and in a mandamus action, where the officer could not be required to perform an act other than ministerial, and not then unless it was clearly his duty to perform it, and concerning which he would have no discretion to refuse performance, the fact that Moore, the purchaser at the tax sale and the holder of the certificate, was dead before the assignment was written in above Moore's signature on the certificate was an important factor in the court's conclusion. The court said that since Moore's mouth was closed, the adversary of his heirs or personal representative ought not to be permitted by his acts to reflect facts which had occurred before Moore's death. A much less strict view can be taken in the case at bar. Here it appears from the record in an equity case that Walter W. Mayes, to whom the tax sale certificate had been originally issued and who had assigned it in blank to Cavender, the plaintiff, was in court as Cavender's counsel. Not only was Mayes' mouth not closed, but he was opening it to urge the integrity of his assignment of the certificate to Cavender. These differences in circumstances existing in the Perea Case and in the case at bar reflect the differences in the effect that the application of principles may have to divergent situations.
Portions of the decision in the Perea Case may still be useful in another mandamus case, but it places no restraint upon us in the case at bar. The difference between the way the matter comes up, whether in a mandamus case or in an equity suit, may be very important.
We think our decision in State ex rel. McFann v. Hately,
In the Perea Case Judge McFie distinguished the Iowa case because the Iowa court said that no assignment was necessary to warrant the treasurer in executing the deed, inasmuch as an Iowa law (Code 1873, § 894) provided that the "lawful holder" was entitled to the deed upon producing the certificate. Section 4100, C.L. 1897, controlling in the Perea Case, provided: "On demand of the purchaser, his heirs or assigns, and on presentation of the certificate of sale, the collector * * * shall make out a deed," etc. If Judge McFie properly appraised the Iowa decision as above noted, then it would more nearly fit our law as it now exists than at that time, because section 452, c. 133, L. 1921, provides that under designated circumstances, "on demand of the holder of the tax sale certificate, presentation thereof to the county treasurer," a deed shall be issued, etc. We think that the object of this provision is to afford the treasurer certain evidence of who is entitled to the deed when the right to one accrues. If, however, he should, without having the statutory evidence of assignment, execute a deed to the one who in fact and in law was entitled to receive it, the question of its validity would not be affected by the fact that he acted without such evidence. See Swan v. Whaley et al.,
We think the phrase employed in section 455, "assignee of the purchaser," is not limited to a person named as assignee in an indorsement on the tax sale certificate. We apprehend that the interests represented by the certificate being a thing of value may be assigned as a matter of law, as for instance to the personal representative of a deceased owner of a certificate, or through execution sale to a creditor of such owner, and that the phrase "holder of the tax sale certificate" to whom the deed may be issued under the provisions of section 452 is broad enough to cover "heir at law," who under section 455, if named as grantee in the tax deed, is presumptively entitled thereto. And such language would seem to be broad enough to embrace any one *242 who is in law and in fact entitled to the interest represented by the certificate, such as an assignee by operation of law or by indorsement on the certificate. These considerations strongly support the view that "holder" is not limited to a person named in a formal assignment indorsed on the certificate.
It will be noted that section 455 does not say that the tax deed is prima facie evidence that the grantee is the holder of the certificate by indorsement thereof. It says that it is evidence that the grantee named in the deed was the purchaser, or his heir at law or his assignee, which suggests, as was held by the Iowa court in Swan v. Whaley, supra, that assignment of the certificate by indorsement affords the treasurer certain evidence of who is entitled to the deed, but is not the only evidence by which it may be established that the physical holder of the certificate is the assignee of the purchaser. See Christian v. Lockhart et al.,
In American Exch. Nat. Bank of City of New York v. Crooks,
We view the matter on the record before us much as did Mr. Justice David J. Brewer in an opinion prepared for the Supreme Court of Kansas in Gardenhire v. Mitchell,
"The second objection is, that there was no proof of the assignment of the sale certificate. The deed is itself prima facie evidence of everything, from the valuation of the land up to the execution of the deed, and that includes assignments of the sale certificate. (McCauslin v. McGuire,
"But as to one lot, plaintiff offered in evidence the sale certificate, which showed a formal assignment from the county to one Arthur Storms, and on the back the name of Arthur Storms indorsed in blank. No formal assignment from Storms appeared anywhere on the paper, yet the tax deed ran to Jacob Grebe. Counsel contends that such blank indorsement was not an assignment, and that therefore the deed was executed to the wrong party. It will be noticed that neither the county nor Storms is questioning this deed or claiming any interest in the property, and we think the matter is one which does not concern the plaintiff. The county sold to Storms, and contracted at a certain time to give a deed to him or his assignee on surrender of the sale certificate. Grebe, claiming to be the owner, presents the certificate with Storms's name indorsed, and the deed is made. Now if Storms had not actually sold the certificate to Grebe, he and he alone is wronged, and he must come into court for relief. In Woodman v. Clapp, 21 Wis. [350] 354, the court says:
"`The deed recites that the defendant was the assignee of Comstock, who was the assignee of the county. The county is concluded by this recital. If not a ratification of the previously unauthorized act of the clerk, it certainly inures to the benefit of the defendant by way of estoppel; and so long as the county is concluded, it is not an objection of which the plaintiff can avail himself in this action.'
"That case goes beyond this, for here the only question is the fact of the assignment; there, in addition, the validity thereof."
In line with the views expressed by Judge Brewer that only one who has a right to challenge the sufficiency of a tax title may be heard to complain of irregularity in the proceedings, see Kreigh v. State Bank of Alamogordo,
Furthermore, we think the provisions of section 455 of the 1921 Taxation Code, when considered in the light of section 435 of said act, have a material bearing on the case. Section 455 provides in terms that tax deeds shall be prima facie evidence in all courts in all controversies and suits in relation to the rights of the purchaser, his heirs and assigns, to the lands *244 thereby conveyed of certain facts. Nine are enumerated, some of which we quote:
"First. That the real estate conveyed was subject to taxation for the year, or years, stated in the deed.
"Second. That the taxes were not paid at any time before the sale. * * *
"Eighth. That the grantee named in the deed was the purchaser or the heir-at-law, or the assignee of the purchaser."
Section 435 provides that no attack on the title to any property sold at a tax sale in accordance with the provisions of said act shall be entertained by any court, nor shall such title be invalidated by any proceeding, except upon the ground that the taxes were paid before the sale or that the property was not subject to taxation.
It thus appears that the tax deed is properly only prima facie evidence of the first and second facts enumerated since they may be controverted. It would seem, however, that as to facts enumerated in section 455, which are not jurisdictional in their nature and which under section 435 may not be controverted, and the nonexistence of which may not be lawfully urged in any attack upon a tax sale or title, the effect of the tax deed is to make it more than prima facie evidence of such nonjurisdictional enumerated facts; in fact, construing section 435 with section 455, there is strong reason for claiming that the tax deed as to facts enumerated which do not fall within the class of "essentials of taxation" is conclusive evidence thereof.
We have several times held that the restriction of defenses to tax sales and titles to the fact that the tax had been paid or the property was not subject to taxation was a valid exercise of legislative power. See Manby v. Voorhees,
Finding no error, the judgment will be affirmed, and it is so ordered.
HUDSPETH, C.J., and SADLER and ZINN, JJ., concur.
Dissenting Opinion
To maintain his action to quiet title the plaintiff must have some title in the real estate that can be quieted. He must succeed on the strength of his own title, and not on the weakness of his adversary's. If he has no title then he cannot recover, though the defendant may have no title. If he does not have to show a title, good against the whole world, he at least must show one superior to that of the defendant. This court, in Abeyta et al. v. Tafoya,
"The rule is well stated by the Circuit Court of Appeals (Ninth Circuit) in the case of Ripinsky v. Hinchman, 181 F. 786, 105 C.C.A. 462, as follows: *245
"`The general rule, in a suit to quiet title or to remove a cloud, as well as in ejectment, is that the plaintiff must succeed upon the strength of his own title, and not on the weakness of that of his adversary. The very idea of removing a cloud from title presupposes that the plaintiff has a title of some order to defend or to relieve of an alleged or threatened incumbrance or cloud.' * * *
"This being the rule, it must become a question of fact as to whether appellants showed title."
In Stanton v. Catron,
Appellee alleged that he owned the real estate involved, in fee simple. This is the title he seeks to quiet. If he has no title, then the case should be reversed with instructions that it be dismissed.
The demurrer to the answer admits that appellee's title depended upon the validity of a tax deed issued to him on his demand by the county tax collector, under authority of section 452 of chapter 133, N.M. Sess.L. 1921 (hereinafter set out), upon his presentation of a tax sale certificate indorsed in blank by the assignee of the county; and that he has no other evidence of title.
Sections 445 and 452 of chapter 133, N.M. Sess.L. 1921, providing for assignment of certificates of tax sales and the execution and delivery of tax deeds, are as follows:
(445) "Certificates of sale shall be assignable by endorsement only. When issued to the county the said certificates may thereafter be sold and assigned to anyone first applying who will pay the face amount thereof, with accrued interest and a recording fee of fifty cents."
(452) "Any time after the expiration of the term of three years from the date of recording the tax sale certificate, where the property has not been redeemed, on demand of the holder of the tax sale certificate, presentation thereof to the county treasurer, * * * the county treasurer shall execute and deliver to said person a tax deed for said property. The said deed shall vest in the grantee, his heirs, successors and assigns, a perfect and complete title in fee simple to said premises, free and clear of all liens and encumbrances except taxes levied thereon prior or subsequent to the year for which the same was sold."
The majority opinion does not clearly state the legal principles upon which this case is decided, but I believe they are as follows: *246
1. The "holder" of a tax sale certificate is not necessarily one to whom it has been assigned in writing; but a deed may be issued thereon to one to whom it has been delivered by the county or its assignee, with the intent that he shall own it.
2. The record owner of property is not in a position to object to errors and irregularities in the issuance of a tax deed, and the appellant could not raise the question of the invalidity of the assignment of the tax sale certificate or the illegality of the deed.
3. A tax deed is conclusive evidence of the fact "that the grantee named in the deed was the purchaser or the heir at law or the assignee of the purchaser."
I will take up these propositions in the order in which they are named here.
The "holder" of a tax sale certificate is entitled to a tax deed upon his demand upon the county treasurer therefor, accompanied by a presentation of such certificate. This the law provides; but it is plain that only the "holder" of such certificate is so entitled. The original purchaser is of course a holder; but inferentially such original purchaser and his assignee alone are holders; for such certificates are "assignable by endorsement only." It therefore follows logically that unless appellee was the original purchaser of the real estate involved, or unless the tax certificate was assigned to him by indorsement by one legally authorized, he has no title. The county was the original purchaser, and one Mayes its assignee. The effect of the issuance of the certificate to the county and its subsequent assignment to Mayes is fixed by section 442 of the Tax Code of 1921 (chapter 133) as follows: (442) "The tax sale certificate, when recorded, shall vest in the purchaser, his heirs or assigns, or the county and its successors, a complete legal title to the property described therein, subject to redemption as provided by law. Counties shall be deemed purchasers within the meaning of this act."
We held in Alamogordo Improvement Co. v. Hennessee et al.,
We stated in Witt v. Evans,
The English statutes for the prevention of frauds and perjuries, commonly called the "Statute of Frauds" (St. 29, Charles II), is in force in this state, and unless there is statutory exception in case of tax titles, Mayes could only divest himself of title by a sufficient writing signed by him; or by such part performance as would relieve the purchaser of the effect of these statutes; and the payment of the purchase price not accompanied by possession is not sufficient. Osborne v. Osborne et al.,
A tax deed issued without a performance of the statutory requirements authorizing its execution and delivery is void. Black on Tax Title, § 384; Wells v. Bloom et al.,
Some courts sustain the view that an indorsement in blank is sufficient to comply with such statutes upon the theory that tax sale certificates are chattels, title to which may pass by sale and delivery alone; and if the statute is not technically complied with, the purchaser is authorized to add the assignment above the signature of the assignor to conform to the statute. Swan v. Whaley,
The Territorial Supreme Court, in Territory v. Perea,
Assignments by indorsement in blank generally apply to negotiable instruments, and not only pass title to such instruments but are implied contracts to pay them at maturity upon the default of the makers. They have no reference to the assignment of interest in real estate or personal property other than negotiable instruments, in regard to which by statute or usage, technical assignment in writing has been dispensed with. The words "assignment by endorsement" as contemplated by the New Mexico statute in question mean a writing on the back of the tax sale certificate sufficient to transfer to another the interest of the original holder of the tax sale certificate in the real property described therein, and is not substantially complied with by the writing of the holder's name on the back of such certificate.
The authorities are divided on whether a tax sale certificate that is not a conveyance of real estate is assignable by indorsement in blank, but no case holds that property described in a certificate which is in effect a deed or conveyance of real estate can be transferred by endorsing a certificate in blank.
There are but few authorities on the question, and I will here review all that I have found; though the Territorial Supreme Court has held that a blank indorsement did not comply with a similar statute.
It was held in Territory ex rel. Gildersleeve v. Perea, Sheriff,
"The writing of his name in blank by the purchaser on the back of a certificate of tax sale is not sufficient to constitute an `indorsement,' within the meaning of section 2885, Compiled Laws [Code 1884], providing, that such certificates `shall be assignable by indorsement.' By the words `assignable by indorsement' is meant that the assignment itself as well as the name of the assignor shall be written upon the instrument; and a holder of such a certificate, signed on the back by the purchaser in blank, is not authorized to write an assignment above such signature.
"The mere delivery to another of a certificate of tax sale by the original purchaser, with his name written in blank on the back, vests no right or title in the holder." *250
The statutes construed were sections 2885 and 2892, Comp. Laws 1884, and are as follows:
(2885) "The certificate of sale shall be assignable by endorsement, and an assignment thereof, when entered upon the record of sales in the office of the probate clerk, shall vest in the assignee, or his legal representatives, all the right and title of the original purchaser."
(2892) "At any time after the expiration of the term of three years from the date of the sale of any real estate for taxes under the provisions of this chapter, on demand of the purchaser, his heirs or assigns, and on presentation of the certificate of sale, the collector then in office shall make out a deed for each lot or parcel of real estate sold and remaining unredeemed, and deliver the same to the purchaser, his heirs or assigns."
The corresponding sections to be considered here are sections 445 and 452 of chapter 133, N.M.Sess.L. 1921, supra.
The respective statutes are so nearly identical in meaning that unless we overrule the Perea decision we must hold that the mere writing of the holder's name on the back of a tax certificate did not effectuate its assignment.
Said section 452 was an amendment of a prior statute, which follows: "At the expiration of the time for redemption, if such property be not redeemed, the county treasurer upon application by the purchaser or his assignee of any property at tax sale or of any duplicate tax sale certificate, shall execute and deliver to him a deed for the real estate sold; but the execution and delivering of any such deed shall not have the effect of releasing or extinguishing the lien on the property for any unpaid taxes thereon, whether levied before or after the date of the certificate referred to in section 5502." Section 5506, Code 1915.
This statute was construed in Christian v. Lockhart et al.,
"It is to be observed that this statute does not in terms require the assignment of the certificate itself, but contemplates that the assignee of the rights of the purchaser shall be entitled to the deed. A conveyance by warranty deed certainly conveys all of the rights of the vendor in and to the land and in and to all remedies and claims whereby title may be perfected and protected. Here the original assignee had a right and interest, when he conveyed, to present his tax certificate and obtain a deed when the period of redemption had run. This right passed to his vendee under his warranty. See 18 C.J. `Deeds,' § 276; Vos v. Dykema,
"Counsel for appellants cite, in opposition to this conclusion, State v. Winn,
The intimation is that if the law had provided only that the assignee of a certificate was entitled to a tax deed (as it does now), then a warranty deed would not be sufficient basis therefor; but as the statute authorized the issuance of a tax deed either to the assignee of the property, or of the certificate, an assignment of the certificate was unnecessary if the property was assigned.
The majority suggest that the Perea Case was a proceeding in mandamus, and the court in its opinion suggested that it did not hold that the assignee did not have rights that could be enforced in a court of equity. I will refer to that matter later, but at this place I wish to emphasize that it was held in the Perea Case that such indorsement in blank did not comply with the statute. The majority opinion states that the law has been amended since the decision in the Perea Case; that under the statute here involved title to real property is conveyed to the holder, whereas title did not pass under the law construed in the Perea Case. This is true, and all the more reason, as we shall see later, why a strict compliance with the law is necessary to convey title; but is no reason why almost identical statutes should be construed differently. The meaning of "assignment by endorsement" is not different because of the amendment. The Perea Case was decided approximately thirty years before the act of 1921 was passed; notwithstanding which, the Legislature substantially reenacted the laws therein construed. Under such circumstances we should adhere to its holding.
I know of no other state whose court has passed on the question having a law that vests title by tax sale certificate, and this must be kept in mind in determining the effect of our statute. Ordinarily the holder does not obtain title by virtue of the certificate but only rights which entitle him thereto upon complying with the law; whereupon a tax deed is executed to the purchaser or his assigns by an officer who has no interest in the property, vesting title. But it is the law that vests the title. The power of the county treasurer is not coupled with an interest, and his unauthorized acts are void. The question of the effect of such indorsements have been before the courts of a number of states, but I believe in each instance the certificate involved did not vest title. In cases where such indorsements were held sufficient compliance with the law, the certificate was treated as a chattel, subject to bargain and sale, like any other personal property. In this state they are no more a chattel than is a deed; and a blank indorsement thereon is no more effective as a means of divesting title than such indorsement on a deed unless so provided by statute.
The statute of Nebraska required the treasurer to attest the execution of a tax deed with his seal; it was held in Reed v. Merriam,
"The certificate was then canceled and filed with the county clerk. Unless the certificate was presented to the county treasurer, *252 he had no authority whatever to execute a deed. This was a condition precedent to his right to exercise that authority. In other words, the law makes the return of the certificate the evidence upon which the treasurer has authority to act. There is no power to accept secondary evidence in lieu of the certificate, nor to execute deeds to correct errors in former deeds. The second and third deeds, therefore, being made without authority, are null and void, and it being conceded that the first is invalid, the title to the real estate in question did not pass to the plaintiff. * * *
"Whatever may have been the object of the legislature in requiring the treasurer to attest the execution of a tax deed by his seal, the provision is one that cannot be dispensed with, and the want of a seal is no valid excuse. A treasurer acts under a naked statutory power in executing a tax deed, and unless he complies with the provisions of the statute, the deed will be void."
In Morris v. Bird et al.,
It was held in White et al. v. City of Brooklyn,
The majority opinion contains a quotation from American, etc., Bank v. Crooks,
"Section 888 of the Code is as follows: `The certificate of purchase shall be assignable by indorsement, and an assignment thereof shall vest in the assignee or his legal representative all the right and title of the original purchaser. * * * In case said certificate is assigned, then the assignment of said certificate shall be placed on record in the office of the county treasurer in the register of tax sales.' The contention is that this section requires a formal assignment, transferring to the assignee all the rights and interests of the purchaser, to be indorsed upon the certificate. * * *
"It is contended that Whaley was not entitled to receive a deed of the property from the treasurer, because of the insufficiency of the assignment from Phillips to Fairfield, and of the fact that neither of the assignments under which he held were recorded in the treasurer's office. * * * The certificate of purchase is a mere chattel, and, like any other article of personal property, is the subject of bargain and sale. The provisions of section 888, with reference to the assignment and the recording thereof in the register of tax sales, relate merely to the creation and preservation of the evidence of the sale. They are not essential to the sale itself. A right in and to the certificate which would be enforceable in law can be created without either the execution or recording of any written assignment. The object of the provision is to afford the treasurer certain evidence of who is entitled to the deed when the right to one accrues. If, however, he should, without having any evidence of the assignment, execute a deed to the one who in fact and law was entitled to receive it, the question of its validity would not be affected by the fact that he acted without such evidence."
If this doctrine is sound, of which I have serious doubts, it would not apply to certificates conveying title to real estate. Such certificates are not "mere chattels" subject to bargain and sale like personal property. *254
There are two other cases of the same holding; based at least inferentially upon the same reasoning as that of the Iowa case, Chrisman v. Hough et al.,
There certificates were treated as chattels; and the words "assignment by indorsement" as meaning the signing of the certificate holder's name on the back thereof. I doubt if the former is correct, and am quite sure the latter has no such meaning except when applied to negotiable instruments, unless specifically so provided by statute. But in any event these holdings have no application here, for the reasons I have stated.
The case of Gardenhire v. Mitchell,
The conclusion reached in the subsequent case of Morris v. Bird et al., supra, decided later by the same court, is inconsistent with the majority's interpretation of Judge Brewer's opinion. The same statute was construed in the two cases and had been construed in the case of Clippinger v. Tuller,
In Wilson v. Wood et al.,
The nature of such an indorsement was determined in Horn v. Garry,
Nowhere in the opinion of the majority have I been able to find any definition of "assignment by endorsement," or any definite conclusion as to the effect of a blank indorsement on such certificates; but reasoning from the result, I have assumed it is held that an indorsement in blank is sufficient; in effect, holding that such certificate is a "mere chattel"; which cannot be correct. The statute itself provides that in case of the holder's death, title to the tax certificate (or the real estate it represents) vests in his heirs as other real property and does not vest in his personal representatives. Section 442, c. 133, Sess.L. 1921.
My conclusion is that after the time for redemption has elapsed the certificate evidences a title to real estate in fee simple; that an assignment of a tax sale certificate is a conveyance of real estate; that "assignment by endorsement" means a written assignment on the back of the tax certificate, signed by the assignor to the effect that the rights of the assignor in the certificate (if not in the property it represents) are assigned to the assignee.
Whether the tax sale certificate is itself real estate, as held in Eaton v. Supervisors,
It is said in the majority opinion: "In line with the views expressed by Judge Brewer that only one who has a right to challenge the sufficiency of a tax title may be heard to complain of irregularity in the proceedings."
But, as we have seen, the opinion by Judge Brewer, referred to, has no reference to a defendant in possession, but to a plaintiff who has no title to quiet. I do not find that any of the cases cited under that part of the opinion just quoted, support the quoted statement. The court is not concerned about the defendant's title until plaintiff shows title in himself, and by his demurrer he admits he has no title. The defendant, being in possession, has a better right than a stranger to the title out of possession.
The statute (Laws 1921, c. 133, § 455, subd. 8) provides that a tax deed shall be prima facie evidence of certain facts, among which is: "That the grantee named in the deed was the purchaser or the heir-at-law, or the assignee of the purchaser." It is stated in the majority opinion: "There is strong reason for claiming that the tax deed as to facts enumerated which do not fall within the class of `essentials of taxation,' is conclusive evidence thereof." I have not been able to discover one such reason. It would be in the face of a statute, except for which the tax deed would be evidence of nothing except its own execution. The statute specifically provides that a tax deed is only prima facie evidence of certain facts, showing conclusively that such facts are subject to being disproved in the absence of curative statutes; and yet the majority hold that such facts are conclusively proved to be true by a paper shown to be void and therefore not a tax deed — "a scrap of paper." A tax deed (not an instrument in the form of a tax deed that is void) is prima facie evidence of certain facts. The instrument in question is assumed to be a tax deed until the evidence proves its invalidity; after which it is evidence (prima facie, conclusive or otherwise) of nothing.
The tax deed is void; the appellee has no title; and the judgment of the district court should be reversed and the cause dismissed. *258