Seitz v. Largent ( 1943 )

I dissent. The real question is whether Largent could acquire a tax title based in part on the taxes that were assessed against the land during the years 1932 to 1936, inclusive, while he was in possession as owner, and defeat the claim of Mrs. Seitz. Ordinarily one who owes a legal or moral duty to pay taxes on land cannot acquire a tax title on the land based upon a sale for such taxes. Brooks v. Garner, 20 Okla. 236,94 P. 694; Curry v. Frerichs, 194 Okla. 230, 149 P.2d 95; 51 Am. Jur. 919. Largent owed a legal duty to the state to pay the taxes for the five years he was such owner. 68 Ohio St. 1941 § 351[68-351]. As grantee of the mortgagor, he owed a moral or equitable duty to Mrs. Seitz, holder of the mortgage, to pay the taxes for those years. 134 A.L.R. 303, 306, note. Assuming that he could, by contract with Mrs. Seitz, absolve himself from such duty to her (Shoup v. Central R.R. Co., 24 Kan. 547), the record does not show that he did so. There is testimony that in 1937 he conveyed the land to Mrs. Seitz or some one for her, but the deed was not introduced in evidence and there is no evidence as to its terms or that Mrs. Seitz or her agent assumed payment of the taxes for those years. The fact that Largent conveyed the land to Mrs. Seitz or her agent, standing alone, did not, in my opinion, relieve him of the duty to pay the taxes for those years so as to enable him to acquire a tax title based in part on the taxes he was under duty to pay and defeat the lien or title of Mrs. Seitz. Blackwell, Tax Titles (5th Ed.) § 566; Baldwin v. Barber, 164 Wis. 622, 160 N.W. 1052.

Mr. Justice BAYLESS concurs in these views.