The Commercial Investment Trust, Inc., sued, in the district court of Carter county, W. J. Farve and others, upon a note executed by Ada Tubby la Fountaine, the 23rd day of June, 1923, which note was due in partial payments each 30 days from date of its execution, the last payment being due more than eight months from date of execution. The payees in the note were W. J. Farve and John Baptiste, who assigned the same to plaintiff, who made the purchase thereof in the city of New York four days after the *Page 135 execution of the note, to wit, June 27, 1923. The note bore on its face:
"Negotiable and payable at the office of the Commercial Investment Trust, Inc., Liggett Building, 42nd Street at Madison Avenue, New York City, with exchange on New York."
The judgment of the trial court was on demurrer to the undisputed evidence. The execution of the note was not denied. That it was payable at the office of the plaintiff appeared on its face; that it was immediately assigned and transmitted and received by the plaintiff four days after its execution is the undisputed evidence. The demurrer was sustained by the trial court, and judgment rendered for the defendants, for that the tax provided for by section 9608 was not shown to have been paid. The opinion quotes the said section 9608, but there is nothing therein which makes the tax referred to due at any particular date, but the said section does provide that the note or chose in action on which the suit is brought is inadmissible in evidence, unless the tax is paid on such "located in the state of Oklahoma."
The writer cannot agree that there is anything in this section of the statute requiring this character of tax to be paid as a condition precedent to the admissibility of the note in evidence, unless the subject of taxation is located in the state of Oklahoma at the time when it must, under the statute, be registered for taxation, or be subjected to a penalty, unless perchance that it be assigned to a nonresident of the state for the purpose of evading and avoiding the payment required by said section. Section 9610 provides in part:
"* * * All other property subject to taxation under the provisions of this act shall be listed for taxation as provided for herein, within 60 days from date of the execution of the evidence of such indebtedness."
Section 9612 places a penalty for failure to pay the tax within the time provided by section 9610. The two sections show it is not due until then. At the time this note was assigned, there was no provision of the statute which made the tax due thereon or fixed any penalty for failure to pay the same, and under the first-named section (9608), it was not due by a nonresident who bought and paid, as in the instant case, in good faith, for the property, before the tax became due thereon. In the case of White v. Grounds, 121 Okla. 171,249 P. 271, this court refers with approval to the case of Pappas v. Guaranty Securities Co., 92 Okla. 25, 217 P. 474, and McIntosh v. Advance-Rumely Thresher Co., 117 Okla. 248,246 P. 403. In the last-named case, the note was executed in Adair county, and forwarded to the plaintiff in the state of Arkansas. This court in the said opinion recites:
"The statement of facts in Pappas v. Guaranty Securities Co., and McIntosh v. Advance-Rumely Thresher Co., supra, shows that, while the notes in question there were executed in the state, yet, upon their execution, they were forwarded to non-resident owners, and only sent back to the state when due for collection, and this court very properly held that, the situs of the notes not being in the state, the owners thereof were not required to pay the tax as provided by section 9608, C. O. S. 1921, as a condition precedent to offering them in evidence."
The two propositions then are: First. The undisputed evidence showed that the note was to be transmitted immediately to the plaintiff, a resident of the state of New York. This wasdone, and the note was received there four days after its execution. Under authorities cited, it did not have a taxable situs at the time fixed by the statute for the payment of this tax within the state of Oklahoma. Second, the note showed on its face that by its very terms, it is due, but was accelerated by failure to pay any one of the 30-day payments, and had the suit been brought immediately upon default, it would have certainly been admissible to show the contractual obligation to pay each payment, up to the expiration of 8 months from its date. If not admissible as to the payments due more than 8 months (which I shall not discuss), even conceding that it had a taxable situs in the state, the contractual amount due after the expiration of 8 months could have been properly eliminated by a proper instruction of the trial court.
In the opinion of the writer, the judgment of the trial court in sustaining the demurrer on the ground that the note was inadmissible is reversible error, and for this court to sustain the same is reversing its position in the cases above cited, if indeed it is not giving to the statute, under the guise of a rule of evidence, an unconstitutional construction by the impairment of an obligation of a contract, which impairment did not exist at the time the plaintiff in the action became the holder in due course for value. *Page 136