
    Smith et al. v. Stephenson et al.
    1. Principal and Agent: authority op agent. Authority given by a principal to an agent to invest his money, and look after his business generally, will not enable the agent to sell his principal’s property, even such as may be acquired as the result of the investment.
    2.--: tax purchase. Where one is buying at a tax sale for himself, and is also, acting in some purchases as the agent of another, it will be presumed that the purchases made in his own name, 'and upon which he takes the certificates, are not made for his principal but for himself.
    3. Tax Sale: assignment. Where a tax purchaser assigned his certificate to another, the assignment not being recorded, and after the expiration of three years from the time of sale, but before the execution of the deed, executed a quit claim deed to the owner of the property, held that the quit claim deed conveyed no title, and that the assignment of the certificate was valid.
    
      Appeal from, Adams Circuit Court.
    
    Thursday, April 19.
    Action in equity to set aside a tax deed and quiet plaintiffs’ title. Tbe plaintiffs’ land was sold at tax sa\e to the defendant, Stephenson. He assigned the tax .certificates to the defendant Atkins, and Atkins executed a bond- for a quit claim deed to the defendant Bixby. After the expiration of the three years from the time of sale, but before the execution •of the tax deed, the defendant Stephenson executed a quit claim deed for the consideration of $50 to the plaintiffs, and agreed to deliver to them the tax certificates. They claim that he was the owner of the tax certificates at the time, or if not that he was Atkins’ agent with authority to sell or surrender them, and that the tax claim upon the property by reason ' of the said transaction became extinguished.
    Other facts are stated in the opinion. Decree' for defendants. Plaintiffs appeal.
    
      Davis c& Anderson, for appellants.
    
      John Bixby do Son, for appellees.
   Adams, J.

The tax sale took place October 1st, 1866. The tax deed recites that the certificates were assigned by Stephenson to Atkins February 15th, 1867, and the tax certificates purport to show the assignment of that date. This was long before Stephenson’s quit chxixn to plaintiffs, and if the assignment was x’eally made on that day the plaintiffs took notlxixxg by their transaction with Stephenson, unless Stephenson had authority to act for Atkins ixx the matter, and unless also his act was in such form as to bind Atkins. Thex'e is xxo evidence tending to show when the certificates were assigned other than that above set forth.

The assignmexxt of course took place at the tixne of delivex-y. On this point there is no dii’ect evidence whatevex*. The exe-. cution of the tax deed to Atkins would be px-esnmptive evidence that the certificates had been delivered to him before that time, and a delivery being shown we think the presnmption is that they were delivex’ed at the date of the assignment. We must consider then that Atkins became the owner of the cei’tificates on the 15th day of February, 1867. The transaction between plaintiffs and Stephenson took place August 2d, 1870. The appellants contend, it is true, that there is evidence tending to show that the certificates had not been assigned at that time.

They introduced Stephenson as a witness, who said: “As to sale of tax certificates I rexnexnber by reference to this deed (his deed to plaintiffs), that I sold the certificates to I. R. and Myron Smith, plaintiffs, through Mr. Cumxnins, of Qxiixxcy.” But this cannot, we think, be construed as a statement that he owned them at that time. ITe undertook to sell them and did sell them so far as he could do so. We think he meaixt nothing more, because he says: “I don’t.I'emember whether I assigned the certificates of purchase to O. B. Atkins before or after the sale.”

Taking it then as established that Atkins becxime the owner before the transaction between Stephenson and plaintiffs, we have to inquix-e wnether Stephenson, as Atkins’ agent, was authoxhzed to make such tx’ansaction.

It appears from the evidence that Stephenson had been accustomed to invest money for Atkins in purchasing land at tax sale, and where the land was afterwards redeemed he had been accustomed to draw the redemption money. Whether the certificates in question belonged to Atkins from the beginning, as being certificates of sales in which he furnished the purchase money, or whether they belonged to Stephenson and were by him sold to Atkins, does not appear. Stephenson says: “The assignment to Atkins was a bona fide transaction and for a valuable consideration.”

But this statement is consistent with either theory. As to the extent of Stephenson’s agency, he says: “During the time I was superintending the investment of tax money f°r Atkins my authority was general. He told me ¡;0 ]00k after his business and I did so.” To our mind the record fails to show that Stephenson was authorized to release Atkins’ interest in land, where the time of redemption had expired.

This involved the waiver of a right, or the sale of property. Authority given by a principal to his agent to invest his money, and look after his business generally, would not, we think, enable the agent to sell his principal’s property, even such as might be acquired as the result of the investments.

But the evidence fails utterly to show that the certificates in question were issued upon sales in which Atkins furnished the purchase money. The purchases were made jn Stephenson’s name and the certificates issued to him. During this time Stephenson was buying at tax sales for himself as well as Atkins. The presumption must be that these certificates belonged originally to Stephenson and were by him sold to Atkins. If such was the fact, it seems entirely clear to us that it was not within the scope of Stephenson’s agency to re-sell the • certificates or release Atkins’ interest in the land. If we are correct, we need not inquire whether his attempt to release or convey simply his own interest could have the effect to release or convey Atkins’.

The appellants claim that, as they had no notice of the assignment to Atkins, either actual or constructive, at the time they parted with their money in their transaction with Stephenson, they ought to be protected.' Ourattention js caj]eci to section 888 of the Code, which provides that “in case the certificate is assigned, the assignment shall be placed on record in the treasurer’s office in the register of sales.” In this case no record was made of the assignment. But we think that none was necessary. The assignment was made before the Code, and no provision of law appears to have been made at that time for a record of the assignment. By section 778 of the Revision it is provided that “ the certificate of purchase shall be assignable by indorsement, and an assignment thereof shall vest in the assignee or his legal representatives all the right, title and interest of the original purchaser.”

The appellants, in support of their theory, cite McCarver. v. Nealey, 1 G. Greene, 860. . In that case it was held that a judgment debtor who had paid the judgment to the plaintiff’s attorney of record should be protected in such payment, notwithstanding the judgment had been previously assigned, it not appearing that the judgment debtor had notice of the assignment.- But this decision, to our mind, is not. applicable to the case at bar.. It would not be claimed that if the judgment creditor had sold and assigned the judgment, and after-wards, pretending still to be the owner of it, he had made another sale and assignment of it to a person, without notice, that such person would -be protected. At the time of the transaction between plaintiffs and Stephenson they sustained in contemplation of law the same relation to the certificates that any other person would have sustained who should have purchased them and taken a quit claim deed .of the land. Their right of redemption at that time had expired. Such being the case, we think they should have taken notice at their peril as to whether Stephenson was still the owner of the certificates.

After this suit was commenced Atkins executed a quit claim -deed to plaintiffs. The appellants claim that at that time, if Atkins ever owned the land, he still owned it, and that he then elected to stand on the penalty of his bond to Bixby, so that, whether the assignment was made before or after the quit claim deed of Stephenson, the decree of the court below is erroneous.

The decree was substantially that Atkins’ quit claim deed to plaintiffs be declared null and void. This was in accordance with the prayer of Bixby, and we think that he was entitled to have the deed so declared. According to the view we have taken of the case, Bixby was the equitable owner of the land at the time this suit was commenced, holding a title bond to the same. The plaintiffs knew that he so claimed, and made him defendant herein. Afterwards they obtained from his vendor the said, quit claim deed. We think that they are entitled to no advantage thereby.

Affirmed.  