Cavender v. Phillips , 41 N.M. 235 ( 1937 )

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, 26 N.M. 346, 192 P. 481, said:

"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:

"`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, 8 N.M. 355, 45 P. 884, 888, the Territorial Supreme Court stated: "The allegation and proof of title have ever been the basis of this form of action in courts of equity prior to the adoption of the statutes in the several states upon this subject. It has ever been the title of the plaintiff which he has sought to have quieted against the demands of an adverse interest. It is his title which is the groundwork of the action. Can it be said that the legislature, in their enactment of these statutes to quiet title, have done away with the necessity of alleging and establishing the very thing which they intend the court shall determine and quiet, to wit, the title of the plaintiff."

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:

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.,40 N.M. 162, 56 P.2d 1127, that the title conveyed by sale of land for the nonpayment of taxes is one in fee simple absolute, created by an independent grant, striking down all previous titles and interests in the property, after the time for redemption had expired. It may be assumed then that Mayes had such title in the property upon the assignment to him of the tax sale certificate, for a tax deed passes no title, and adds nothing to the strength of the title obtained by the execution, delivery, and recording of the certificate and its proper assignment.

We stated in Witt v. Evans, 36 N.M. 365, 16 P.2d 60, 61: "Under the statute in question, the deed is of slight importance. The sale itself, applicable from recordation of the certificate, divests the owner of legal title, leaving him a mere right of redemption. Section 442. The right to redeem from the tax here in question lapsed not later than January 27, 1926. Williams v. Van Pelt, supra [35 N.M. 286, 295 P. 418]; Knollenberg v. State Bank,35 N.M. 427, 299 P. 1077. On that date the county had `complete legal title,' which, on March 28, 1927, it passed to appellant by assignment of the certificate. Evidently the office of the deed was not to pass a legal title which the grantee already had, nor to divest the original owner of a title which he had already lost. It was preserved in the system as a conventional muniment of title, as prima facie evidence of certain facts, and (originally, but not after repeal of section 458 [Laws 1925, c. 102, § 28]) to prevent reversion of title to the original owner on failure to demand deed within six years."

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., 24 N.M. 96, 172 P. 1039; Jones v. Rocky Cliff Coal Mining Co., 27 N.M. 41, 198 P. 284. Title to real property obtained through tax proceedings may be assigned by indorsement and delivery of the tax sale certificate, and this is the foundation of appellee's claim. If the indorsement of the tax sale certificate in blank and its delivery to appellee divested Mayes of title and vested it in appellee, the case should be affirmed; but if it did not, then appellee had no title to "quiet" and though appellant has no title, the appellee's case has failed. Appellant has had possession of the property for many years, paying taxes as they accrue, and this, in any event, is a sufficient defense as against a claim of one who has shown no title to the property.

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., 96 Neb. 430,147 N.W. 1112; De Ford v. Smith, 23 Colo. App. 78, 127 P. 453; City of Chicago v. Collins et al., 302 Ill. 270, 134 N.E. 751; Smith v. Todd, 55 Wis. 459, 13 N.W. 488, 489; People v. Banks et al., 272 Ill. 502, 112 N.E. 269; Empire Ranch Cattle Co. v. Coldren, 51 Colo. 115, 117 P. 1005; Palmaffy v. Cort et al.,100 N.J. Eq. 99, 135 A. 463; Scott v. Warden, 111 Cal. App. 587,296 P. 95; Dennis v. Robertson, 123 Va. 456, 96 S.E. 802; Wilson v. Wood, 10 Okla. 279, 61 P. 1045; Pitkin v. Reibel, 104 Mo. 505,16 S.W. 244; Dimpfel v. Beam, 41 Colo. 25, 91 P. 1107; Pratt v. Pope, 78 Fla. 270, 82 So. 805. The rule is thus stated in 61 C.J., title Quieting Title, § 1872: "* * * Since the purchaser's right to acquire a valid title at a tax sale is statutory and in derogation of the common law, any provisions of the statute imposing on the tax purchaser the duty of complying with prescribed conditions or obligations before taking out his deed are to be considered mandatory and essential to the validity of the deed, and must, therefore, be substantially complied with." I find no law to the contrary. The solution of the problem then depends upon whether Mayes' indorsement in blank was an "assignment by endorsement" as required by section 445 of chapter 133, N.M.Sess.L. 1921, supra. This requirement is mandatory, and unless the tax sale certificate was "assigned by endorsement," it was not assigned at all, and the deed executed by the county treasurer to appellee was void because it was executed and delivered in violation of a mandatory statute.

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, 75 Iowa, 623, 35 N.W. 440; Chrisman v. Hough et al., 146 Mo. 102, 47 S.W. 941; Larson v. Glos et al., 235 Ill. 584, 85 N.E. 926. This class of cases treats the certificate as having some of the qualities of a negotiable instrument, or at least a chattel which, except for the statute, would pass by bargain and sale. On the other hand, it is held by other courts that such certificates are not chattels and not assignable by indorsement in blank, though not a conveyance of real estate. Territory ex rel. Gildersleeve v. Perea, Sheriff, 6 N.M. 531,30 P. 928; Dawson v. Anderson, 38 Okla. 167, 132 P. 666; White et al. v. City of Brooklyn, 122 N.Y. 53, 25 N.E. 243; Wilson v. Wood,10 Okla. 279, 61 P. 1045; Horn v. Garry, 49 Wis. 464, 5 N.W. 897; Reed v. Merriam, 15 Neb. 323, 18 N.W. 137.

The Territorial Supreme Court, in Territory v. Perea, 6 N.M. 531, 30 P. 928, 930, reviewed the authorities as to the meaning of "assignment by endorsement" to which we can add but little in support of the conclusion reached. It was said, "The word `indorsement' has its primitive and popular sense of something written on the outside or back of a paper, on the opposite side from which something else had been previously written," and concluded: "From these general definitions we are inclined to agree with the defendant in error that to write the name upon the back of an instrument would be a proper assignment when applied to negotiable paper, but, as applied to nonnegotiable instruments, such as certificates of purchase at tax sale, the terms of assignment should be written upon the instrument, as well as the name of the assignor, unless there is a specific provision of law that to sign the name upon the back of the instrument is a sufficient assignment to transfer the right, title, and interest of the owner to the assignee." That this is correct, we think is supported by authorities generally, and particularly by the following: Powell v. Commonwealth, 11 Grat. (Va.) 822. "The word `indorsement' has not a definite technical meaning in law or in fact other than `upon the back;' and its meaning is always determined by the context, if in writing, and its connection, if by spoken words. It is as applicable to the receipt of a payment upon the note as to a party to the note, and properly includes filing, or any other memorandum which a person may place upon the back of an instrument. It includes not only such entries as pertain to the contract itself, but many entries which may have no relation to the contract. It may relate to things material to the subject of the contract, or to persons who are parties to the contract, or to such as are entirely immaterial to either." Commonwealth v. Spilman, 124 Mass. 327,329, 26 Am.Rep. 668; Burnsville Turnpike Co. v. State,119 Ind. 382, 20 N.E. 421, 3 L.R.A. 265; Johnson v. Brewer, 134 Ga. 828,68 S.E. 590, 31 L.R.A.(N.S.) 332; State v. Cordray, 200 Mo. 29,98 S.W. 1, 9 Ann.Cas. 1110; Kramer v. Spradlin, 148 Ga. 805,98 S.E. 487. "Assignment by endorsement" means literally an assignment written on the back of an instrument.

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, 6 N.M. 531, 30 P. 928, after a careful review of the authorities, that a tax certificate could not be assigned by indorsement in blank. The following is from the syllabi:

"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."

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.,31 N.M. 331, 245 P. 249, in which we held that a warranty deed from the holder of a certificate was a sufficient assignment to pass title, stating:

"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, 26 Mich. 399.

"Counsel for appellants cite, in opposition to this conclusion, State v. Winn, 19 Wis. 304, 88 Am.Dec. 689. An examination of that case, however, shows that the Wisconsin statute required an assignment on the back of or attached to the tax certificate, which renders the case inapplicable here."

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, 15 Neb. 323, 18 N.W. 137, that the want of a seal was fatal. The opinion states:

"The certificate was then canceled and filed with the county clerk. Unless the certificate was presented to the county treasurer, 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., 71 Kan. 619, 81 P. 185, 186, the Supreme Court of Kansas decided a similar question. It is stated in the opinion: "By the provisions of section 7648 of the General Statutes of 1901, the transfer of a tax-sale certificate must be made by a written assignment indorsed upon the certificate or attached thereto, before the clerk is authorized to issue a deed thereto to the person in possession of the certificate. [Authority.] The holder of a tax-sale certificate properly and regularly issued has an interest in the real estate which cannot be transferred by a mere delivery of the certificate. In order to pass such interest, under our statute, the assignment must be in writing. In Smith v. Todd, 55 Wis. 459, 13 N.W. 488, the court, in passing upon a statute which provided that a tax certificate `may be assigned by the purchaser by writing his name in blank on the back thereof, and by the county treasurer or the county clerk in like manner, with his official character added, or any person's interest therein, may be transferred by a written assignment indorsed upon or attached to the same,' it was held that `the county clerk has no authority to issue a tax deed to the second assignee of a tax certificate whose assignment is not indorsed thereon or attached thereto.' On page 464 of 55 Wis., page 490 of 13 N.W., the court said: `There can be no question that the tax deed so issued and executed in violation of law is absolutely void. Tax proceedings by which the owner of land may be divested of his title must be strictly in accordance with the law. The authority of the county clerk to issue a tax deed must be found in the statute, or it does not exist at all, and the deed he executes without such authority conveys no title.'"

It was held in White et al. v. City of Brooklyn, 122 N.Y. 53,25 N.E. 243, that such an indorsement in blank did not assign a tax sale certificate; that the certificates were void, but that plaintiff could recover the money paid for them. We copy the following from the syllabi: "Also held, that while the defendant might, for the purpose of performance of the contracts contained in the certificates, have treated the purchasers, as the parties entitled to the benefit of them until notice was filed, the provision was no defense in this action, as an assignment of the certificates would be in practical effect an assignment of the claims against the city for reimbursement; but that the certificates were not negotiable instruments transferable simply by indorsement; and that the indorsements alone were insufficient evidence to establish title in plaintiffs to the three certificates."

The majority opinion contains a quotation from American, etc., Bank v. Crooks, 97 Iowa, 244, 66 N.W. 168. This decision follows that court in Swan v. Whaley, 75 Iowa, 623, 35 N.W. 440, 441; to which we should look for the reasons supporting the conclusion reached by that court. The following is copied from the opinion in the latter case, in which the same question was decided:

"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.

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., 146 Mo. 102, 47 S.W. 941, in which that court stated: "Where a purchaser at a tax sale transfers the certificate of purchase to another by a mere indorsement, the latter is authorized in afterwards writing a formal assignment above the indorsement." And Larson v. Glos et al., 235 Ill. 584,85 N.E. 926, 927, from the opinion in which case we copy the following: "The second ground upon which it is said the decree may be affirmed is that the indorsement and delivery of the certificate, and payment therefor, did not amount to an assignment to Timke. In the absence of a statute, a mere indorsement upon an instrument not negotiable is not sufficient to operate as an assignment of the instrument [authorities]; but section 207 of the revenue act [Smith-Hurd Ill.Stats. c. 120, § 193] provides that the certificate of purchase shall be assignable by indorsement, and that an assignment thereof shall vest in the assignee or his legal representatives all the right and title of the original purchaser. An indorsement consists in writing the name of the holder on the back of the certificate, and such an indorsement, completed by delivery, is, under the statute, operative to effect a transfer of all the right and title of the original purchaser. The indorsement by Glos authorized Timke to write above it a formal assignment, if that had been necessary."

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, 21 Kan. 83, the opinion of which was written by Judge Brewer, is cited by the majority on this question. The weight of an opinion by this great jurist would bear heavily against me if it supported the view of the majority, but it has no application here. The plaintiff in that suit claimed under a father, and a deed from his mother and sister, who were the widow and daughter of the owner. The court held that the tax sale was valid and therefore plaintiff had no title whatever, and without a title to quiet he was held to have no interest in the property and therefore was not an interested party. There was no formal assignment of the certificate from its holder to Grebe to whom the deed ran. The certificate was indorsed in blank, as in this case. Judge Brewer, in the opinion, stated: "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." The court does not hold that there was a sufficient assignment of the certificate; in fact, it is intimated otherwise; but because the plaintiff had no title in himself it was held that he was not an interested party, and that is as far as this case goes.

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, 10 Kan. 377, as I am contending, in which Judge Brewer concurred in the opinion. The court in the Clippinger Case stated: "It is true, the plaintiff has a quitclaim deed for the premises covered by the tax-sale certificate from Hidden and Slater to himself. But a quitclaim deed from the holder of a tax-sale certificate is not of itself such an assignment of the tax-sale certificate as will authorize the clerk to issue a tax deed to the grantee mentioned in the quitclaim deed: State v. Winn, 19 Wis. 304, 307. The assignment under the statutes to authorize the clerk to act in such a case must be `a written assignment indorsed upon' or`attached to' the tax-sale certificate: Gen.St., 1048, § 90. It must accompany the tax-sale certificate, be filed away with it, and be preserved as evidence in the office of the county clerk."

In Wilson v. Wood et al., 10 Okla. 279, 61 P. 1045, 1046, the court in passing on a like question, stated: "While the tax certificate does not pass title to the land, it is evidence of an equitable interest, which may ripen into a legal title, and therefore does convey an interest in land. The certificate is a part of, and is essential to, the sale. There cannot be a completed sale without it. It is one of the essentials necessary to confer title on the owner, and hence cannot be dispensed with. It is not a negotiable instrument, and cannot be assigned except where authorized by statute. Then the statutory mode of assignment must be followed. In the absence of a statute authorizing an assignment of a tax certificate, the interest in the land of which the certificate is the evidence can only be conveyed in the manner that real estate is conveyed. Where an assignment is made without authority of law, and a tax deed is made to the assignee, the deed will be void. * * * The assignment relied upon was in fact void. Without an assignment, no valid deed could issue to the plaintiff in error; and, as there was no assignment made in the manner required to transfer the interest in the land represented by the tax certificate, it follows that the deed was not valid as against the mortgagee."

The nature of such an indorsement was determined in Horn v. Garry, 49 Wis. 464, 5 N.W. 897, 901, as follows: "It is, as was said by the court in Eaton v. Supervisors, 44 Wis. [489] 490, a purchase of the lands upon condition that the sale shall be void upon payment made as above stated, otherwise to be valid, and entitled the owner of it to an absolute title to the land. It gives the owner an interest in real estate, and such interest can only be conveyed by writing in the manner prescribed by statute. * * * These provisions of the statute clearly show that these certificates are not assignable by mere delivery, but they are treated as instruments giving the owner an interest in real estate, and consequently require an instrument in writing to convey the right of the owner. * * * The cases cited by the learned counsel for the appellant of the transfer of bills of lading or warehouse receipts made to bearer are based upon an entirely different principle. These instruments relate to personal property, the title to which may be passed by delivery, and when there is a sale in fact the delivery of the documentary evidence of title, with intent to transfer the title, is a sufficient delivery to perfect the transfer of the property itself. * * * In the case at bar the evidence shows that the plaintiff did not sell his interest in the property described in the certificates to McMahon, nor did he make any assignment to him of the interest, if he had any, in the lands described therein; and, the certificates having none of the essential qualities of negotiable instruments, the delivery of the instrument itself passed no title to McMahon which he could transfer to another, so as to affect the rights of those claiming an interest in the lands described therein under him by prior title."

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, 44 Wis. 489, or in effect a deed to real estate, the rights of the holder do not pass by its delivery to a purchaser or by blank indorsement and delivery to one. The policy of the Legislature of this state in the matter of sales of real estate for taxes has always been to require a complete record title to be kept; yet this sound policy is destroyed by the majority opinion, which, in effect, holds that a change of ownership of real estate may be effected by mere delivery of a tax certificate after the first blank indorsement. No such loose manner of transferring title could have been intended.

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.