State Ex Rel. Com'rs of the Land Office v. Roberts

1930 OK 525, 293 P. 262, 146 Okla. 47, 1930 Okla. LEXIS 252

Opinions

FOSTER, C.

The plaintiff in error, Commissioners of the Land Office of the state 'of Oklahoma, commenced this action to foreclose a real estate mortgage given by Samuel K. Roberts and Mary Roberts to secure a loan in the sum of $1,500, out of the trust funds held by said plaintiff in error. M. Squires, a tax sale certificate holder, was made party defendant, and J. C. Redden, also a tax sale certificate holder, intervened. The trial court made an order in which it decreed that the lien of the plaintiff, under its mortgage out of the common school funds of the state, is coequal with the lien of the defendant M. Squires,, 'and the intervener, J. C. Redden, under their tax sale certificates, and it is from this 'order that the plaintiff prosecutes this appeal.

The only question presented is whether or not a holder of a tax sale certificate has a coequal lien with the state under its mortgage for a loan of its trust funds, the common school funds of the state. Defendants in error state in their brief that this precise point was presented in the case of State ex rel. Com’rs of the Land Office v. Nat. Bank of Commerce, 139 Okla. 134, 281 Pac. 579. In this contention we think the defendants are correct, and believe the question here presented was there decided in favor of the plaintiff. We will therefore not discuss the propositions and authorities presented by the briefs of the parties, as we .think the matter has been determined in the said case of State ex rel. v. Nat. Bank of Commerce, supra.

It therefore follows that this cause should be reversed, with directions to the trial .court that the decree be modified, declaring the mortgage lien of the Commissioners of the Land Office to be superior to the tax sale certificates held by M. Squires and J. C. Reddeh.

BENNETT, TEEHEE, LEACH, and REID, Commissioners, concur. SWINDALL and RILEY, JJ., dissent.

By the Court: It is so ordered.