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(47 Wash. 186)

was required of them as a further exacLIBERT v. UNFRIED et ux,

tion and extraordinary charge of interest for (Supreme Court of Washington. Sept. 18,

the use of the $3,000 loaned them by plain1907.)

tiff. The plaintiff denies this, claiming that

he sold to Fred Unfried a one-half interest 1. USURY-PENALTIES AND FORFEITURES.

Under 3 Ballinger's Ann. Codes & St. $ in a partnership existing between himself 3671, providing that if, in an action on a con and Unfried, and took the note as payment. tract for payment of money and interest it be The plaintiff alleged that the defendants had shown that a greater rate of interest than 12 per cent. per annum has been contracted for or

impaired his security by selling 200 head ot taken, plaintiff sha!l only recover the principal, the sheep without his knowledge or conless the amount of interest accruing thereon at sent, and that by reason thereof he had at the rate contracted for, and defendants shall recover costs, and, if interest shall have been paid,

his option declared the secured notes to be judgment shall be for the principal, less twice due and payable. Upon plaintiff's ex parte the amount of the interest paid, and less the application the trial court, on April 19, 1906, amount of all accrued and unpaid interest,

appointed one Owsley receiver of the mortwhere plaintiff loaned defendants $5,000 and received their notes for that amount, bearing 12

gaged sheep, and directed him to take imper cent. interest, secured by mortgage, and mediate possession and hold the same pendas a bonus for the loan also received their un ing the foreclosure proceedings. Upon mosecured note for $1,000, bearing 12 per cent. interest from maturity, and plaintiff, exercising an

tion of the defendants this order was afteroption, foreclosed the mortgage before some of

wards vacated, and from such interlocutory the notes secured were due, but after the $1,000 order of vacation the plaintiff prosecuted a note had by its terms matured, defendants are

preliminary appeal to this court, which we entitled to have deducted from the $5,000 notes, as accrued interest thereon, all of the $1,000

hare dismissed on this date in cause No. note and interest thereon after its maturity. 6,427. 91 Pac. 774. The record on this pres2. SAME-ATTORNEY'S FEES.

ent appeal shows that on the appeal from Under Ballinger's Ann, Codes & St. $ 3071, the interlocutory order the plaintiff gave providing that in an action on an usurious con

2 supersedeas bond, that under such bond tract all that can be recovered is the principal, less certain deductions, and that defendants shall

Owsley has continued in possession of the recover costs, plaintiff cannot recover attorney's sheep, that he has clipped a large amount fees,

of wool, that he has turned the proceeds 3. CITATTEL MORTGAGES — SIIEEP_"INCREASE thereof into the custody of the clerk of the THEREOF." The words "increase thereof." in a chattel

superior court, that the plaintiff claims a mortgage of "ewe sheep and their increase," and

lien on this wool under his chattel mortgage, "two year old wether sheep," do not include the and that the defendants claim they are enyearly clip of wool, but the offspring only. titled to the wool, or the proceeds of its Appeal from Superior Court, Garfield

sale, free from any lien. County ; Chester F. Miller, Judge.

Upon trial the court made findings from. Action by William A. Libert against Fred

which, with others, the following facts apUnfried and wife. From an adverse judg-pear: That the defendant Fred Unfried had ment, plaintiff appeals. Affirmed.

violated the terms of the chattel mortgage

by selling certain of the sheep without plainCharles L. McDonald, Ben F. Tweedy, and

tiff's knowledge or consent; that $133.60, a G. W. Jewett, for appellant. I. N. Smith

portion of the proceeds of such sale, was and Gose & Kuykendall, for respondents.

paid to plaintiff on November 21, 1905, $50

being applied on account of interest and CROW, J. This action was commenced by $385.60 on the principal of his notes; that the plaintiff, William A. Libert, against the the unsecured note for $1,000, dated October defendants, Fred Unfried and Sylvia Un 25, 1905, executed by Fred Unfried, was fried, his wife, to foreclose a chattel mort without consideration, except that it was gage. In the fall of 1905 the defendants were given as an exaction of the plaintiff, made about to purchase a large flock of sheep from upon the defendant Fred Unfried for the one Hamilton Gill, and the plaintiff loaned loan of $5,000, evidenced by the three sethem $3,000 to pay the purchase price. To cured notes; and that the chattel mortgage secure such loan he took from the defend does not cover the clip of wool from the ants three notes, dated October 23, 1903, one sheep. The court also stated the following for $1,000, falling due June 15, 1906, one conclusions of law: "First. That the transfor $2,000, falling due June 15, 1907, and action set forth in plaintiff's complaint and one for $2,000, falling due June 15, 1908, in defendants' affirmative answer, arising out all bearing 12 per cent. interest from date, of the loan of defendants of the sum of five and being secured by a mortgage on land thousand ($3,000) dollars, and the exaction in Garfield county and a chattel mortgage by plaintiff of the rate of interest specified on the flock of sheep. About October 25, in said notes, together with the further sum 1905, the defendant Fred Unfried executed of one thousand ($1,000) dollars as a further and delivered to the plaintiff his additional and additional exaction for the use of said unsecured note for $1,000, due March 15, money, constitutes a usurious transaction, 1.908, with 12 per cent. interest from matu and that said one thousand ($1,000) dollar rity. The defendants claim this $1,000 note note was and is a usurious exaction and

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an unlawful charge for the loan of money, no papers were drawn, and that no partnerby way of a premium wbich the plaintiff, ship business was actually transacted. In William A. Libert, demanded and exacted fact, according to appellant's testimony nothof the defendant Fred Unfried,

ing was done except the making of the orThird. That by reason of the usurious na al agreement. Appellant, howerer, contends ture of the loan, and of the transaction set

that, within an hour, or less time, after the forth in this case, the plaintiff is not entitled

formation of the partnership, the respondent to recover interest or attorney's fees or costs Unfried purchased his interest in the firm herein. Fourth. That defendants are enti

and its anticipated profits for $1,000, giving tled to the following credits on said five thou his unsecured note in payment, and that insand ($5,000) loan: (a) The sum of $1,000 as

mediately thereafter appellant made the $5,accrued usurious interest represented by the

000 loan as an entirely separate transaction, note. (b) The sum of $100, as being double thereby furnishing funds which enabled the the interest actually paid on November 24,

respondent Fred Unfried to individually pur190.). (c) The sum of $385.60, as being pay chase the sheep from Ilamilton Gill. The rement on the principal of date November 21,

spondents contended, and Fred Unfried testi1905. (d) The sum of $375.20, being the fied, that the appellant exacted the $1,000 amount of unpaid accumulated interest on note as a consideration or bonus for the the $3,000 notes from November 24, 1905, to $5,000 loan, in addition to 12 per cent. inAugust 1, 1906, the date of decree. (e) The

terest. The court found with the respondent sum of $12, as being the amount of interest

on this issue, and we are satisfied with such on the $1,000 note contracted for from date finding. it being sustained by the evidence. of maturity thereof (March 15, 1906) to Au Section 5701, Pierce's Code (section 3669, 3 gust 1, 1906, date of decree. Fifth. That Ballinger's Ann. Codes & St.), reads as folthe plaintift is entitled to recover judgment lows: "Any rate of interest not exceeding against the defendants, Fred Unfried and twelve (12) per centum per annum agreed to Sylvia Unfried, for the sum of three thou in writing by the parties to the contract, sand ninety-four and 20/100 ($3,094.20) dol shall be legal, and no person shall directly lars, without interest, attorney's fees, or or indirectly take or receive in money, goods costs." Upon these findings and conclusions or thing in action, or in any other way, any a final decree was entered, awarding plain greater interest, sum or value for the loan or tiff $3,094.20 debt, without attorney's fees forbearance of any money, goods or thing in or costs, and foreclosing the chattel mort action than twelve (12) per centum per angage upon the sheep, but not on the clip num.” As the appellant's three secured notes of wool. The plaintiff has appealed.

by their terms call for this maximum rate There is a motion to dismiss the appeal, of interest, he was contracting, not only for because (1) the notice of appeal is insuffi 12 per cent. on the $5,000 actually loaned, cient and (2) the certificate of the trial judge but also for $1,000 in addition thereto, as to the statement of facts is defective. We compensation for such loan, which made the find no merit in either contention. The mo contract usurious. Section 5706, Pierce's tion to dismiss is denied.

Code (section 3071, 3 Ballinger's Ann. Codes By his assignments of error the appellant & St.), provides: "If a greater rate of interest contends that the trial court erred (1) in

than is hereinbefore allowed shall be coufinding that the $1.000 unsecured note was

tracted for or received or reserved, the conpart of an usurious contract and without

tract shall not, therefore, be void; but if in other consideration; (2) in deducting ex any action on such contract proof be made cessive amounts as penalty for the usurious that greater rate of interest has been directly contract, if it be held usurious ; (3) in holding or indirectly contracted for or taken or rethat the clip of wool was not subject to the served, the plaintiff shall only recover the chattel mortgage lien; and (4) in refusing principal, less the amount of interest acto award appellant attorney's fees or any cruing thereon at the rate contracted for, costs.

and the defendants shall recover costs; and The unsecured note for $1,000 and the three if interest shall have been paid, judgment secured notes for $5,000 were, as we find shall be for the principal less twice the from the evidence, parts of the same trans amount of the interest paid, and less the action. The appellant claims that he and the amount of all accrued and unpaid interest." respondent Fred Unfried entered into an oral Appellant's principal contention seems to be contract to join in purchasing the sheep that the trial court should not have deducted from Hamilton Gill, that the appellant was to the entire $1,000, the face of the unsecured advance the necessary funds to make the pur note, as interest accruing on the $5,000 loan chase, that the respondent Unfried was to at the rate contracted for. He contends that care for the sheep, and that the two were the statute should be strictly construed as to be partners in the sheep business. His against the respondent, that only interest evidence shows that the sheep were not joint accrued at the date of judgment should be de. ly purchased, that he never paid any money ducted, and that the $1,000 was not accrued on the alleged contract of partnership, that interest. The trial court was right in its

C. J.,

conclusion on this point. The $1,000 un that the defendant shall recover costs. If the secured note by its terms had matured, and, appellant was only to recover a portion of his with $18 interest thereon, was due and pay principal, he certainly was not entitled to able at the time of the entry of final judg recover any further sum, whether it be called ment herein. It had undoubtedly been given attorney's fees or costs. We think the statas compensation to appellant for the use of ute is not susceptible of any construction oththe $25,000, in addition to the maximum rate er than the one given it by the honorable trial permitted by statute. Had it been paid by court. the respondents, appellant could not serious The judgment is affirmed. ly contend that they would not be entitled to credit for twice the amount as interest paid. IIADLEY,

and RUDKIN and The evident purpose of section 3671, 3 Bal MOUNT, JJ., concur. linger's Ann. Codes & St., was to compel the money lender who makes an usurious loan to credit his debtor with every dollar of accrued value which he has contracted to re

(19 Okl. 107) ceive as compensation for the debtor's use

KELLER V. HAWK. of the money actually loaned. Under any fair

(Supreme Court of Oklahoma. Sept. 5, 1907.) interpretation the $1,000 was past-due in

1. TAXATION-REAL ESTATE-SALE FOR TAXES terest, and, being usurious interest, was

-TAX DEED. properly deducted from the appellant's claim. When a tax deed shows on its face that This is also true of the $378.20 additional in several lots in a town were sold at one sale, terest which had matured on the $5,000 after and that the county purchased them as a compet

itive bidder, the deed is void. While the counthe payment of November 24, 1905, and the

ty treasurer has the right under the law, to is$42 interest which had matured on the $1,000 sue a second tax deed for the purpose of curing note.

defects in the first, such authority cannot be ex

ercised to overcome by false recitations in such A proper construction of the chattel mort

second deed, the record upon which it is based. gage requires us to 'hold that it did not

[Ed. Yote.-For cases in point, see Cent. Dig. give appellant a lien on the clip of wool. The vol. 45, Taxation, $$ 1361, 153.5.] mortgage described "twelve hundred head of

2. SAME--TAX CERTIFICATE-CoXSTRUCTION. ewe sheep and their increase; three hundred

A tax certificate, under the law, does not head of two-year-old wether sheep." Appel pass title to the land sold. It is a written cerlant contends that the words "and their in

tification by the county treasurer of the facts

regarding the sale of real estate for taxes, and crease" applied to the yearly clip of wool.

is the legal pridence upon which the holder (alifornia has a statute reading as follows: thereof is, at the proper time, entitled to a deed, "Mortgages may be made upon the following or the redemption money. It is prima facie

evidence of the correctness of the facts recited personal property and none other : * *

therein, and, being made by the treasurer at or Sixteenth. Weat cattle, horses, mules. swine, , near the time of sale, where the recitations sheep, goats, and the increase thereof." In thereof are in conflict with the recitations of Alferitz v. Borgwardt, 126 Cal. 200, 38 Pac.

the tax deed based thereon, the recitations of

the tax dood will prevail. 400, the Supreme Court held that the words

TEd. Yote.-For cases in point, see Cent. Din. "and the increase thereof," as applied to vol. 1.). Taxation, $ 1163.] sheep in a chattel mortgage, did not include

3. SAJE-SALE-PURCHASE BY COUXTY. their wool, but their offspring only. String Where a county purchases real estate at a fellow v. Sorrells, 82 Tex. 277, 18 S. W. 089. tax sale as a competitive bidder, the sale is void. Considering the terms of appellant's mortgage

anil a tax certificate or tax deed which recites

such fact or other facts from which such comin the light of the evidence and all the sur

petition is necessarily disclosed is void. rounding circumstances, we construe

Ed. Note.--For cases in point, see Cent. Dig. words "and their increase" to apply merely to vol. 45, Taxation, $ 1301.] the increase of lambs from the ewes. If it

1. SAME-SALE-LOTS IX CITY. had meant wool, language definitely referring Each lot in a city or town must be assesser to the increase of wool from all the sheep and sold separately, and, where a tax (ertificate would certainly have been used, and not lan

or deed shows upon its face that several lots

were sold together in one sale, such certificate guage which excepted the wether sheep by

or deed is void. referring only to the increase from the ewes.

3. SAJE-ACTION TO TRY TITLE. The evidence show's that at the time of the

Where one purchases real estate at a tax trial there had been an increase of about sale, and goes into possession of the same under 500 lambs, and the trial court properly held

a void sale and deed, and the original owner

brings an action in ejectment to recover possesthey were subject to the mortgage lien, and

sion, he is not required, as a condition precedent that the clip of wool was not.

to bringing the action, to tender to the tax deel The trial court did not err in refusing to

holder the amount of taxes paid by him. allow appellant any attorney's fees or costs.

TEd. Yote.For cases in point, see Cent. Dig. The statute (section 5706, Pierre's Code; sec

vol. 1., Taxation, $ 1386.] tion 3071, 3 Ballinger's Ann. Codes & St.) pro

6. ADVCRSE POSSESSIOX-VOID TAX DEED. vides that he shall recover only principal,

A tax cleed which is void upon its face is

not admissible in evidence to support an adverse less certain deductions therein named, and possession under a statute of limitations. A

tax deed which is void upon its face cannot be aided by the statute of limitations.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 1, Adverse Possession, 462; vol. 45, Taxation, $ 1594.)

Burford, C. J., dissenting. (Syllabus by the Court.)

Error from District Court, Cleveland County ; before Justice Clinton F. Irwin.

Action by S. C. Hawk against E. J. Keller. Judgment for plaintiff. Defendant brings error. Affirmed.

C. L. Botsford, for plaintiff in error. J. W. Hocker, for defendant in error.

BURWELL, J. The appellee, S. C. Hawk, was the owner of lots numbered 17 to 32, inclusive, in block numbered 11, in the town of Lexington, in Cleveland county. These lots were sold for taxes and bid in by the county. The county sold the certificate of purchase to the appellee, E. J. Keller, who, on December 24, 1898, obtained a tax deed for the same, and went into possession of the lots. On October 30, 1900, the appellee commenced this action in ejectment. The appellant answered, denying generally the allegations of the petition, and then affirmatively pleaded bis tax deed. On the final trial judgment was rendered for S. C. Hawk, and Keller appeals to this court.

On December 24, 1898, the county treasurer made to Keller a tax deed, but this deed showed upon its face that all of these lots were sold together, that the county bought them as a competitive bidder, and that the sale was made at the door of the courthouse. Recognizing that this deed was void, Keller on November 13, 1900, obtained from the county treasurer another deed, which recited that there were no bidders other than the county, that the lots were sold separately (giving the amount for which each sold), and that the sale took place at the treasurer's office. This second tax deed was obtained after the commencement of this action. This fact, however, is not considered by us in deciding the case.

The certificate of sale was issued by R. Aniol, who was county treasurer and who made the sale. The first deed was executed by him also, and its recitations are in barmony with the tax certificate. The second deed was executed by J. W. Stow, who was

These certificates are made out by the treasurer while the facts are fresh, and when there is slight probability of error of memory. And, where there is no other evidence. offered as to what actually occurred at a sale, the recitations of the tax certificate will prevail over conflicting recitations in a deed executed by another treasurer some four years after the sale occurred, when the recitations in the tax certificate shows that the treasurer had no legal authority to execute the deed. It is true, perhaps, that, if there were a discrepancy between the records of the treasurer's office and the recitations in the tax certificate, the former will prevail; but in this case the facts, as recited in the tax certificate, are not controverted. The validity of the deed depends upon the validity of the proceedings leading up to it. If those proceedings are void, the deed is void also. The only evidence offered on the trial as to what was actually done is the tax certificate and portions of the record which are not in conflict. The tax certificate recites that these lots in question were purchased by the county; it "being the highest and best bidder," and this court has held that such a recitation shows that the county was a competitive bidder, and, if so, the deed is void. Hanenkratt v. Hamil, 10 Okl. 219, 61 Pac. 1050. And under the rule announced in the case of Wilson v. Wood, 10 Okl. 279, 61 Pac. 1045, the recitations of a tax deed do not overcome facts in conflict therewith, as shown by the tax certificate. In this last case the court expressly held the recitations of a tax deed might be contradicted by one claiming adversely to it. The tax certificate also shows that these lots were sold at one sale for $8.73. This alone would render the sale void. Each lot in a city or town should be assessed and sold separately, and, while more than one lot may be included in the same deed, the deed must affirmatively show the amount for which each lot sold. Frazier v. Prince, 8 Okl. 253, 58 Pac. 751; Lowenstein v. Sexton (Okl.) 90 Pac. 410 (not officially reported); Eldridge v. Robertson, de cided at the present term of court (not yet officially reported) 92 Pac. 156.

The contention that, when a deed is de fective, another deed may be issued to conform to the facts, adds nothing in favor of the appellant. The second deed should conform to the facts, and it is said in 27 Cyc. p. 963, that "the authority to issue a second deed] cannot be exercised to overthrow by false recitals in a deed the records upon which it is based." That is exactly the effect of the second deed in this case. The recitals therein, when compared with the rec ord, are false. It is also suggested by counsel for the appellant that the appellee, plaintiff below, never tendered the taxes to the appellant. No tender was necessary. As we have heretofore said, the tax deed was

charge of the office at the end of Mr. Aniol's term. The tax certificate, under the law, does not pass title to the land sold. It is a written certification by the county treasurer of the facts regarding the sale of real estate for taxes, and is the legal evidence upon which the holder thereof is, at the proper time, entitled to a deed, or the redemption money. It is a prima facie evidence of the correctness of the 'facts

of the facts recited therein.

void. The United States Circuit Court of be seen upon its face and by its own terms Appeals for the Eighth Circuit, in the case that it is absolutely void." To the same efof Paine v. Germantown Trust Co., 136 Fed. fect are the following cases : Coulter v. 327, 69 C. C. A. 303, said: “Where a tax Stafford (Circuit Court of Appeals for the sale of land is void, the payment of the taxes: Ninth Circuit) 56 Fed. 561, 0 C. C. A. 18; by the purchaser was the act of a mere Moore v. Bro: 1), 11 How. (U. S.) 411, 13 L. volunteer, so that the landowner was not Ed. 751; Daniels v. Case et al. (C. C.) 45 bound to pay the taxes, and interest so paid | Fed. 813 ; Id., 159 U. S. 251, 15 Sup. Ct. 1038, by such purchaser as a condition to his right 40 L. Ed. 110; Callahan v. Davis, 90 Mo. 78, to have the purchaser's certificates and deeds 2 S. W. 210; Land & River Imp. Co. v. Barvacated.” The Supreme Court of Kansas · don (C. C.) 45 Fed. 706; Shoat v. Walker, had occasion to consider the question in the 6 Kan. 65; Sapp v. Morrill, 8 Kan. 677; Hubcase of West v. Cameron, 39 Kan. 736, 18 bard v. Johnson, 9 Kan. 632. The last three Pac. 894. That case, like this one, was a ; cases were where the original owner of the suit in ejectment. The court said: "In an land remained in possession, but in the case action of ejectment, when it appears that of Watterson v. Deroe, 18 Kan. 223, the the plaintiff is the owner of the property, | Supreme Court of Kansas said that, even and that the defendant holds the same under though the purchaser at the tax sale was in a void or voidable tax deed, as in this case, possession, the statute of limitations would the plaintiff's action cannot be defeated by not run in favor of his tax deed, which was showing that the plaintiff has not tendered void upon its face. The justice who wrote the amount of the taxes paid by the defend this opinion cites the other Kansas cases reant on the land"-citing authorities. The ferred to above. And again, in the case of above rule should apply in this case, espe Larkin v. Wilson, 28 Kan. 513, Chief Justice cially in view of the fact that the plaintiff Ilorton, speaking for the court, said: “This tendered the taxes to the treasurer and they court has already held that a tax deed, to be were refused. The court, however, as a con sufficient when recorded to set the statute dition precedent to giving possession to the of limitations in operation, must of itself be appellee, required him, in the judgment, to prima facie evidence of title; that a tax deed pay the taxes.

void upon its face will not start the statute The appellant also insists that the action of limitations; and also that a tax deed void of appellee was barred by the statute of upon its face will not protect a person in poslimitations, by reason of it not having been session of the premises for two years therecommenced within the statute after the first under.” See, also, the following cases: deed was recorded. The first deed was void Mason v. Crowder, 85 Mo. 526; Sheehy V. upon its face. Therefore the statute of limi- Hinds, 27 Minn. 259, 6 N. W. 781; Cutler v. tations did not run against it. There is ap Hurlbut, 29 Wis. 152; Wofford v. McKinna, parently some conflict in the decisions upon 23 Tex. 36, 76 Am. Dec. 53. And in the case this point; but an examination of some of of Hurd v. Brisuer et al., 3 Wash. 1, 28 Pac. these cases will show that the courts render 371, 28 Am. St. Rep. 17, it is said: "If the ing them failed to distinguish between a sale was void [referring to a tax sale), which deed which is void upon its face and one we think it was, none of the claims made by which appears upon its face to be regular, the appellant under the statute of limitabut may be defeated by reason of the irregu tions are good.” It is true that there are larity of the prerequisite steps, or total fail some cases holding that statutes of limitaure to perform some necessary duty named tions will run against a void deed, but the in the statute as the basis for a tax deed. weight of authority is against that doctrine, The Supreme Court of the United States in and with the latter line of authorities are the case of Rerfield v. Parks, 132 U. S. 239, the decisions of the Supreme Court of the 10 Sup. Ct. 83, 33 L. Ed. 327, in an opinion United States. These decisions are binding prepared by Mr. Justice Miller, reviews the upon this court; and, besides, we believe authorities, and in positive language de that the Legislature did not intend that time clares that the statute of limitations cannot should breath life and force into an instrube invoked in aid of a tax deed which is ment from the face of which it could be seen void upon its face. The court considered the that it was absolutely void. The law was statutes of Arkansas, which were equally as intended to protect purchasers at tax sales favorable to a purchaser at a tax sale as our and their grantees from hidden defects in the own. Finally the court said: “We do not proceedings, and not from those which the discover in the statute of Arkansas, nor in tax deed shows upon its face, and which, unthe decisions of its courts cited by counsel, der the law, persons dealing with the title for defendant, anything to contravene these are bound to know. views, and we think that both the weight The judgment of the lower court is here of authority and sound principle are in favor by affirmed, at the cost of appellant. All of of the proposition that, when a deed founded the Justices concurring, except IRWIN, J., on a sale for taxes is introduced in support who presided at the trial below, not sitting, of the bar of a possession under these stat BURFORD, C. J., dissenting, and GARBER, utes of limitations, it is of no avail if it can J., absent.

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