McNutt v. Lovelace

WATSON, Chief Justice. This is a suit to quiet title; the complaint being in statutory form. There was an answer and cross-complaint, upon the allegations of which the plaintiff obtained judgment on the pleadings. Defendant has appealed. According to the allegations of the cross-complaint, appellee’s title, quieted by the judgment, is thus derived: Taxes were assessed upon the property for the year 1915. At the 1916 tax sale, the land was struck off to the county, to which vyas issued a tax sale certificate dated September 11, 1916. This certificate was assigned to appelleeMarch 27, 1930, and on the same day he obtained his tax deed. Appellant’s first contention is that the land' was not subject to taxation in 1915. To sustain this point, he pleaded that “on the 27th day of August, A. D. 1914, the * * * United States * * * made and executed, to the Santa Fé Railroad Company its patent * * * ” for the lands, and that such patent was not recorded in the county records until September 15, 1915. We are unable to see how these facts, establish appellant’s position. It may be, as he contends, that the date of execution of the patent does not conclusively fix the-time of passage of legal title from the gov-eminent. It seems certain, however, that the date of recording in the county records is immaterial. Appellant, having assumed the burden-of establishing that the land was not subject to taxation, has failed to plead facts sufficient for the purpose. There is some argument as to the meaning of Laws 1913, c. 84, § 6, in force when this assessment was made. It provided that: “ * * * Lands entered or purchased under any Act of Congress shall not be subject to taxation until patent therefor has been issued, except in cases where the issuance of patent has been delayed by the neglect or default of the entryman or purchaser, or of his assigns.” Whatever the word “issued” may mean, we are satisfied that it does not include a recording of the patent in the county records. If there was delay in the delivery of the patent “made and executed” in August, 1914, such that the legal title did not pass until some time in 1915, appellant has failed to plead the fact. Appellant further contends that appellee’s tax deed is void. His proposition is that the certificate, then held by the county, was affected by the Tax Act of 1929, chapter 114, with the result, either that limitation had run against it under section 15 (Comp. St. 1929 § 141-715), or that the new procedure prescribed by that act for foreclosure of tax liens was necessarily to be followed. We do not consider section 15 as having been intended to raise the bar of limitation as against then outstanding tax sale certificates. What this section bars is proceedings “for the collection of taxes, or for the foreclosure of tax liens.” Presumably such proceedings had already been had, according to the laws then in force, and had resulted in the tax sale certificate to the county. Nor do we agree that the county, owning a tax sale certificate issued in 1916, must proceed to have it converted into a new certificate of lien, and then institute suit to foreclose it under the new procedure. After considering the whole act, and particularly the saving clause, section 22 (Comp. St. 1929, § 141-722), we are compelled to conclude otherwise. From the time of the tax sale in question until chapter 114 took effect as law, there was always in force some statute under which the county could sell the certificate and convey the land to its assignee. If such statute was repealed by chapter 114, it nevertheless remained in force “as to tax sale certificates * * * issued prior to the effective date of * * * ” that act. Finding no merit in appellant’s contentions of error, the judgment will be affirmed, and the cause remanded. It is so ordered. SADLER, HUDSPETH, BICKLEY, and ZINN, JJ., concur.