Scudder v. Hart ( 1941 )

I agree with the conclusion announced in the opinion of Mr. Justice Bickley that the relationship of agency between the owner, Drake, and the mortgagee, Prendergast, no longer existed when the treasurer notified the former of the mistake later discovered in giving what purported to be a correct statement of the amount necessary to clear the property of delinquent taxes. Drake was delegated by Prendergast to inquire of the treasurer the amount of taxes delinquent on the property and to write said amount in the blank check furnished him by Prendergast and deliver same to the treasurer. This is exactly what Drake did and his agency automatically terminated when he did it. Moore v. Stone, 40 Iowa 259; Bragg v. Bamberger, 23 Ind. 198; People ex rel. Douvielle v. Manistee Supervisors, 40 Mich. 585; Atlanta Savings Bank v. Spencer, 107 Ga. 629, 33 S.E. 878. Notice, later, to Drake concerning the subject matter of the former but completed transaction could not have the effect to revive the agency and thus bind the principal through him, as agent. Moore v. Stone, supra. That Prendergast understood Drake was his agent to do only what actually was done is demonstrated by the fact that he gave Drake only one blank check. The latter of necessity would have to return to his principal for a new grant of authority if any payment were to be made beyond that evidenced by the delivered check. Hence, the notice to Drake was not notice to Prendergast.

I am not content to dispose of the absent owner, Drake, with the mere statement that the effect of the tax deed as between him and Mrs. Hart, its holder, the appellee, is not finally adjudicated herein. The opinion of Mr. Justice Bickley says in substance that the tax deed should not prevail against Prendergast because until notified of the treasurer's mistake and given an opportunity to redeem from the overlooked tax sale certificate, his tender stood as the equivalent of redemption and forestalled the right to sell. This seems to me a correct view. But, by this same process of reasoning, Drake, who did have notice would lose in a contest with Mrs. Hart, holder of the tax deed. Of course, we cannot adjudicate finally Drake's rights here as against the tax deed because we do not have him before us. But we can announce principles here which become stare decisis and when Mr. Drake does come before the court all that remains to be done is to apply them to him. This, it seems to me, is what the opinion by strong implication does. When, for want of notice, it makes impregnable Prendergast's defense against the tax deed, by the same reasoning, unless we explain the inapplicability of such reasoning to Drake who had notice, we render quite vulnerable his defense against the tax title.

It is for this reason that I think the situation calls for an announcement touching the effect of redemption by Scudder, Prendergast's successor in interest. If he is to avoid the tax deed, it is only because until notified and given an opportunity to pay the overlooked taxes, the right to sell did not accrue. Prendergast's tender, made good, would forestall the right to sell. Damon v. Carmean, 44 N.M. 458, 104 P.2d 735. And a redemption by Scudder would inure to Drake's benefit as an inevitable legal consequence even if an undeserved one. Property may not be redeemed piecemeal. It is either wholly redeemed or not at all. A void tax deed, of itself, confers no rights on anyone. Upon redemption, the state gets the total tax and reconveys the whole title. Everyone interested in the property, deserving it or not, gets the benefit of that redemption.

I concur in the result.

ZINN, J., concurs.