Reeves v. Caldwell , 179 Okla. 501 ( 1937 )

I disagree with the majority opinion in this case and deem the matter of sufficient importance to warrant an expression of my views.

As I interpret the majority opinion, it has fallen into the error of indulging the presumption that a public officer has properly discharged his duty in order to support a defective tax title. It is said in the majority opinion:

"The treasurer is presumed to have discharged this duty * * *"

— and again:

"In view of * * * the presumption of performance of official duty. * * *"

The rule as established in this jurisdiction upon this point is stated in paragraph 3 of the syllabus in Henderson v. Langley, 173 Okla. 550, 49 P.2d 167, which reads:

"The presumption that public officials have discharged their duty cannot be indulged to sustain a tax title."

It is my judgment that we should either follow the established rule or repudiate the same. Further discussion of this point is unnecessary.

In my judgment the deed involved in this case is invalid and ineffective as a conveyance of title by reason of its premature execution. It was executed, as the majority opinion reflects, prior to the conclusion of the resale. It was, therefore, as I view the statutes of this state, executed prior to the commencement of the 30-day period during which the county treasurer is by law authorized to execute a resale deed.

The procedure by which property owners are divested of their estate in land is governed by statute. One of the most valuable rights accorded or reserved to the owner by such statutes is the right to redeem through payment of the delinquent taxes. Under our law this right continues until a valid tax deed has been issued. Section 12751, O. S. 1931, provides that such right continues until "such real estate is conveyed by deed to a purchaser." This provision applies to resale as well as certificate deeds. Michie v. Haas, 134 Okla. 57, 272 P. 883. See, also, section 12751, O. S. 1931. (Note also amendment of 1933 allowing redemption in special cases, but not applicable here, section 1, ch. 41, S. L. 1933.) This right of redemption guaranteed by legislation has been jealously guarded by the judicial department of government. It has accordingly been held that any attempt to make a conveyance before the time authorized by law for the execution thereof is without force and effect, since it constitutes an unlawful effort to shorten the period of redemption. Thus the prevailing view in almost all jurisdictions is that a deed prematurely executed is not only voidable but void. This view obtains without regard to the existence of resulting prejudice to the owner in the particular case under consideration. Cooley on Taxation (4th Ed.) vol. 3, p. 2900; Maine v. Thornton, 20 Cal. App. 194, 128 P. 766; Flint v. Koplin, 104 Or. 193, 207 P. 468; Lewis v. Tipton, 29 N.M. 269, 222 P. 661. See, also, Moore v. Brown, 11 How. 414, 13 L. Ed. 751; Redfield v. Parks, 132 U.S. 239, 33 L. Ed. 327,10 S.C. 83: McGavoch v. Pollack, 13 Neb. 535, 14 N.W. 659.

In Cooley on Taxation (4th Ed.) p. 3018, it is said:

"* * * Throughout the tax proceedings the general rule is, that the taking of any one important step is a jurisdictional prerequisite to the next."

And the same authority, at page 2900, says:

"The deed will be void if prematurely issued."

Our statutes contemplate a resale of property commencing on the third Monday in April of each year (section 9744, C. O. S. 1921, amended in other respects in 1929, now section 12754, O. S. 1931), and continuing thereafter from day to day until all of the real estate offered for sale is sold (section 12755, O. S. 1931).

With reference to the time when the property may be conveyed by deed to the purchaser and the owner's right of redemption thereby terminated, it is provided in section 12756, O. S. 1931, that "Within 30 days after such resale the county treasurer shall file in the office of the county clerk a return of his resale of such real estate. * * * And within said 30 days the county treasurer shall execute, acknowledge and deliver to the purchaser or his assigns a deed. * * *"

It is thus provided by statute that within the same 30-day period commencing after the resale, the county treasurer shall file his return of sale and execute deeds to the purchaser. Since the statutes contemplate a resale embracing numerous tracts of land, which resale may by continuances be extended from day to day over such time as may be necessary for its completion, and since section 12756 contemplates the filling of but one return instead of separate returns for each tract of real estate sold, it is obvious that the single 30-day period referred to could not commence before the completion of the entire resale. To hold otherwise would immensely complicate tax resales and keep the county treasurer in motion between his own office and that of the county clerk for the purpose of filing separate returns of separate tracts sold.

The statute provides a full 30-day period for the performance of the acts contemplated. That 30-day period cannot commence until the completion of the sale.

Our statutes provide, in effect, that the resale shall be closed before a deed is issued. Thus authority to execute a resale tax deed prior to the close of the resale does not exist. Consequently the want of authority to do that which was attempted renders the act a nullity.

For the reasons stated, and other reasons reflected by the record and the briefs, which I shall not discuss further, I respectfully dissent from the majority opinion.