Lederman v. Bodovitz

RILEY, J. This appeal presents the question of when unallotted tribal land of the Choctaw and Chickasaw Nations, which has been sold under regulations promulgated by the Department of the Interior, becomes taxable. On July 14, 1925,- J. A. Bodovitz, plaintiffs’ grantor, purchased the unal-lotted tract here involved, consisting of ten acres of land in Stephens county, from the Choctaw and Chickasaw Nations, upon his bid of $260. The regulations were promulgated under provi [277] sions of section 14 of the Act of Congress, July 1, 1902, 32 Stat. at L. 641, 642, and section 16 of the Act, April 26, 1906, 34 Stat. at L. 137-143. The regulations, in part, provided that the terms of the sale should be 25% in cash at the time of the sale and the balance in three equal, annual installments of 25% each, payable in one, two, and three years, respectively, from the date of the sale, and that the purchaser shall also pay 5% interest per annum from the date of sale on all deferred installments. The regulations further provided: “If default be made in any payment when due, all rights of the purchaser thereunder shall, at the discretion of the Secretary of the Interior, cease, and be thereby extinguished, and the land shall be taken possession of by the said Secretary of the Interior for the benefit of the Choctaw, Chickasaw and Creek Nations, and the money paid on the purchase price shall be forfeited to said nations. As soon as full payment is made for any tract of the land purchased under these regulations, a deed shall be issued conveying said land to the purchaser without any reservations, except in the case of segregated coal and asphalt land where coal and asphalt are reserved . . .” At the time of purchase, Bodovitz paid $65, which was 25% of the bid, received an official receipt therefor, and went into possession of the land thereunder. Other payments were made as hereinafter set forth, the last of which was on August 12, 1937. The Secretary of the Interior had not, in the exercise of his discretion, canceled the sale nor declared the payments theretofore made, forfeited. In the meantime, on February 21, 1927, J. A. Bodovitz had conveyed the land to plaintiffs, by warranty deed. That deed was recorded in 1932. September 13, 1937, a deed was executed by William A. Durant, Principal Chief of the Choctaw Nation, and Douglas A. Johnston, Governor of the Chickasaw Nation, conveying the land to J. A. Bodovitz. The deed was approved by the Secretary of the Interior September 23, 1937, and was filed for record in the office of the Superintendent of the Five Civilized Tribes at Muskogee, Okla., September 24, 1937, and in the office of the county clerk of Stephens county July 1, 1942. .. / The taxing authorities of Stephens county assessed taxes against the land for the years 1931 to 1940, inclusive. At the November, 1938, annual sale, the county treasurer advertised the land for delinquent taxes for the year 1937. and prior years. There being no other bidder, the land was bid in by the county, and was advertised and sold at resale in 1941 to defendant Julius Lederman. Plaintiffs being in possession then commenced this action to cancel the resale tax deed and quiet title. The sole issue, and it was so stipulated at the trial, is whether the land was taxable for the years 1931 to 1937, inclusive. The trial court held the land not taxable for those years and entered judgment for plaintiffs, and defendant Lederman appeals. Defendant contends that the land was taxable for the period from 1931 to 1937, and in support of the contention, cites Morris v. Board of Co. Com’rs, 74 Okla. 199, 177 P. 900; Bowls v. Oklahoma City, 24 Okla. 579, 104 P. 902; Boone v. Porter, 45 Okla. 615, 146 P. 584; Zimmerman v. Board of Co. Com’rs, 65 Okla. 10, 162 P. 489; Clark v. Board of Co. Com’rs, 143 Okla. 18, 285 P. 127; and Board of Co. Com’rs v. Oklahoma Tax Com., 185 Okla. 625, 95 P. 2d 605. The latter case has no application, for the reason that there the owner of a tractor and the county, to which the tractor was leased for a period of five months, were seeking to have the tractor exempted from the regular motor vehicle registration fee, or motor excise tax, not because they claimed the county was the owner of the tractor, bur because it was in the possession of the county and was being used for public or county purposes. The Boone, Zimmerman, and Clark Cases have no application, for the reason that, as pointed out in each case, the [278] statute under which state school land is sold requires the School Land Commission, as soon as practicable after the sale, to transmit to the clerk of each county in which such lands are sold, a detailed description of each parcel of land so sold, and further provides: “The same shall thereupon become subject to taxation the same as other land.” But in such case, no tax deed can issue for such land. The purchaser becomes subrogated to the rights of the original purchaser from the School Land Commission. Bowls v. Oklahoma City, supra, in a measure supports defendant’s contention. But it appears to be based upon an erroneous holding that Bowls, who purchased the land from the city but had not fully paid the deferred installments, was “likened to one who holds a final certificate for lands purchased from the United States of which said lands it has been held that the purchaser holds the equitable title, and while, of course, not taxable in the hands of the United States, are taxable in his hands.” Examination of the cases bearing on that question will disclose that in purchases of land from the United States, a final certificate does not issue until the purchaser has paid the purchase price in full. It is from that time, and that time only, after the purchaser has done everything necessary to entitle him to a patent, and until a patent is issued, that the purchaser holds the equitable title and the United States holds the legal title in trust for the purchaser. This is clearly pointed out in Rose v. Stalcup, Co. Treas., 78 Okla. 268, 190 P. 396. Therein was involved the sale of the surface of certain segregated coal and asphalt land of the Choctaw and Chickasaw Nations, under rules and regulations of the Secretary of the Interior. In that case, on October 28, 1917, the purchaser was the accepted bidder for the lands involved. He paid 25 % of the purchase price on that day and within 15 days thereafter, or on or before November 12, 1917, paid in full the balance of the purchase price, and received a final receipt therefor, it being designated as a “certificate of purchase.” Patent was not issued until February 4, 1918. The land was assessed for taxes for the year 1918. Rose contended the land was not taxable for that year because the title thereto was still in the Choctaw and Chickasaw Nations on January 1, 1918. Going to the question, the court quotes with approval from 35 L.R.A. (N.S.) 670 the following: “The general rule obtaining as to the right of a state to tax property which has been granted or sold by the United States government, and the title thereto or a lien thereon retained in favor of the public, has been well stated by Mr. Justice Elliott, in State v. Itasca Lumber Co., 100 Minn. 355, 111 N. W. 276, as follows: ‘Usually the possession of the legal title by the United States government determines both the fact and the right of ownership. With respect to the public domain, there is one exception to this general rule, which is as well settled as the rule itself. When Congress has prescribed the conditions upon which portions of. that domain may be alienated, and provided that, upon the performance of the conditions, the United States shall issue a patent to the purchaser, and all the conditions are complied with, it only remains for the United States to issue the patent, and in the meantime it holds the legal title in trust for the purchaser. When the government has no longer any right or interest in the property which would justify it in withholding the patent, and the purchaser is in possession, the latter will be treated as the beneficial owner. This exception rests upon the principle that he who has the right to property and is not excluded from its enjoyment, shall not be permitted to use the legal title of the government to escape his just share of taxation. But before the land can be taxed by the state as the property of the beneficial owner, a perfect equitable title must be vested, and the consideration fully paid to the United States.’ ” Morris v. Board of Co. Com’rs, supra, is distinguishable in that there the sale was not by the United States nor by the [279] United States through the Department of the Interior. It was a sale of land by an individual allottee, which was not taxable in the hands of the allottee. The purchase contract was entirely different. The purchaser gave his promissory notes for the deferred payments; the allottee made and executed a deed conveying the land to the purchaser; and the notes and deed were placed in a bank with an escrow agreement that on payment of the notes, the deed was to be delivered to the purchaser. There, the grantor placed the deed beyond his control, at least so long as the notes were paid as they became due. The opinion does not disclose what the escrow agreement provided in case of default in payment of the notes, or any of them. It does not appear that the vendor had the right, in the event of default in payments, to declare all payments theretofore made, forfeited and retake possession of the land. Hoskins v. Abbott, 191 Okla. 158, 127 P. 2d 815, holds: “Where unallotted lands of the Choctaw and Chickasaw Nations are sold under the supervision of the Department of the Interior and the purchase price is fully paid and certificate of sale issued to the purchaser, such lands thereupon become subject to assessment for ad valorem taxation on the first day of January following, notwithstanding a deed thereto has not been issued to the purchaser pursuant to such sale.” That case lays down the correct rule as to when unallotted lands of the Choctaw and Chickasaw Nations, sold by or through the Department of the Interior on deferred payments, become taxable by the state authorities. It is on the first day of January following the date on which the purchase price is fully paid, and not before. This is true notwithstanding a deed has not at that time been issued to the purchaser. In other words, it is when, and only when, the purchaser has fully paid the purchase price and thereby done everything necessary to entitle him to a deed, that the full, equitable title passes. The legal title passes upon, approval and delivery of a deed properly executed. In this case, as shown by the records of the Superintendent of the Five Civilr ized Tribes, at Muskogee, the purchaser bid the sum of $260 for the land. He paid $65, 25% thereof, in cash. That left a balance of $195, payable in three equal, annual installments, which installments bore interest at the rate of 5% per annum. He paid no more until August 16, 1928, at which time he paid the sum of $200. $30.10 thereof was then due as interest and he was given credit for that amount as interest. The balance of the $2.0.0 payment, $169.90, was credited on the principal. That left an unpaid balance' on the principal of $25.10. Final payment was made August 16, 1937. He then paid $37.53. There was then due interest on the $25.10 from August 16, 1928, to August 12, 1937. He was given credit for interest in the amount of $12.43, and the balance of the $37.53 payment, $25.10, was credited on the principal, which was exactly the full balance of the purchase price. Then it was on August 12, 1937, when the purchaser became the equitable owner of the land. Deed was delivered September 23, 1937. It was then that the full legal title passed. Under the rule stated in Hoskins v. Abbott, supra, the land became taxable on January 1, 1938. Therefore, the land was not taxable for the year 1937 and prior years, and was not legally sold to the county at the 1938 annual sale. The court should' have required the plaintiffs to make good their tender and pay all delinquent taxes, interest, penalties, and costs against the land for the year 1938 and' subsequent years. The judgment is so modified, and, as modified, affirmed. DAVISON, V.C.J., and OSBORN, BAYLESS, WELCH, and CORN, JJ, concur. GIBSON, J., concurs in result. HURST, C.J., dissents.