Larkin v. Hiittenmeyer , 195 Okla. 669 ( 1945 )

The parties to this appeal appear here in the same order as they appeared in the trial court, and for convenience we refer to them herein as plaintiff and defendants, respectively.

The plaintiff instituted this action to quiet title to land sold at tax resale to Mayes county and thereafter conveyed by the board of county commissioners of said county by commissioners' deed to the defendant C.C. Hiittenmeyer.

The plaintiff's action was brought upon the theory that the resale and commissioners' deeds both are void by reason of insufficient publication of notice of original tax sale and notice of tax resale upon which said defendant's title rests, the said notices being for periods of time less than that required by statute.

All material facts were sufficiently stipulated by counsel, including the fact that the notice of sale, pursuant to which tax sale certificate was issued, was published in three issues of the newspaper, but the time intervening between the first notice and the first day of the sale was 18 days and not 21 days; and that the notice of sale, pursuant to which the resale tax deed was issued, was published in four issues of the newspaper, but the time intervening between the first publication and the date of sale as announced in the notice was 24 days and not 28 days.

Under the provisions of 68 O. S. 1941 § 382, notice of sale of real property is required to be published "once a week for three consecutive weeks"; and under the provisions of 68 O. S. 1941 § 432b, notice of the resale of real estate is required "once a week for four consecutive weeks preceding such sale."

On the trial the parties, in the presence of the court, engaged in certain conversations in the nature of stipulations of fact covering the title deed of plaintiff, and the parties and court treated the allegation of title and possession by plaintiff as true.

It is urged that the judgment herein must be reversed under authority of Welborn v. Whitney, 190 Okla. 630, 126 P.2d 263.

By reason of there being involved in the instant case an additional issue and facts not involved or presented in the Welborn Case, there is introduced on this appeal a material element not therein considered which warrants a further consideration of the doctrine there announced.

In the Welborn Case the question was whether the period of notice of original or certificate sale of real property for delinquent taxes prescribed by 68 O. S. 1941 § 382, which had theretofore been held to be mandatory by a long line of decisions, was to be deemed directory by reason of the curative provisions of 68 O. S. 1941 § 452. And in the instant case there is the same question and also the further question whether the period of notice of resale prescribed by 68 O. S. 1941 § 432b is to be deemed mandatory or directory by reason of the curative provisions of 68 O. S. 1941 § 432h.

In the Welborn Case the losing party claimed title through what is termed a commissioners' deed, the land having been previously acquired by the county at a resale. The title was held to fail because the notice on which certificate sale was held was for less than 21 days, which was held to be required by said section 382.

In this case there is involved not only a defect in notice of certificate sale like that which obtained in the Welborn Case, but also a defect in the notice of the resale in that the notice thereof, though appearing in four issues of a weekly newspaper, afforded only 24 days between the first publication and the time of sale and thus less than 28 days.

There is a material difference between the two statutes in relation to the curative provisions. The material language of the certificate sale statute, which is ". . . shall give notice . . . by publication thereof once a week for three consecutive weeks . . . preceding the sale," has continued unchanged since early statehood (R.L. 1910 § 7397).

The material language of the resale statute (R.L. 1910 § 7410) was originally as follows: "The Treasurer shall give notice of the sale . . . by the publication thereof once a week for four consecutive weeks preceding the sale," and conformable to the construction of the certificate sale statute (68 O. S. 1941 § 382) this court has consistently construed said language as mandatory, thus requiring at least 28 days' notice (Sharum v. Foster, 109 Okla. 218, 235 P. 489; Sitton v. Hernstadt,106 Okla. 140, 233 P. 676; Cook v. Vincent et al., 111 Okla. 95,238 P. 471).

In 1923 (S. L. 1923, ch. 158, sec. 4) the language last above quoted was changed to read: "The Treasurer shall give notice of the resale . . . by the publication thereof once each consecutive week for four publications preceding the resale." Such continued to be the language employed until the passage of the Act of 1939 (68 O. S. 1941 § 432b), when by section 3 of the act the language was changed to read: "The County Treasurer shall give notice of the resale . . . by publication thereof once a week for four consecutive weeks preceding such sale. . . ."

Apart from the qualifying effect, if any, of the curative provisions of the 1939 Act, to which we will revert later, it must be assumed, as to the statutory notice for the certificate sale, that the Legislature was cognizant of the interpretation consistently placed thereon by this court over the years, and that, by reason of the fact the Legislature has not seen fit to change the same, it has acquiesced in, ratified, and approved the construction so placed thereon by this court. (McCain v. State Election Board, 144 Okla. 85, 289 P. 759.)

That the Legislature was not satisfied with the statutory provision for notice of resale is conclusively reflected by the change therein wrought by the 1939 Act.

Both the situation sought to be avoided and that sought to be accomplished thereby are to be considered in ascertaining the legislative intent in making the amendment. Previous to the amendment, the word "four" had application to the word "publications," and by the amendment was made applicable to the word "weeks." The only apparent construction of the previous language of which the latter is not susceptible is that a sale could be had thereunder within four weeks from the first publication, even though four publications were had, while under the latter four weeks from the first publication would need to elapse. An illustration is to be found in the instant case where four publications were had but only 24 days elapsed between the first publication and the time of sale.

We thus have a legislative intent to prescribe four weeks' notice because the Legislature in providing such notice chose to employ language essentially the same as that used in the undisturbed certificate sale statute, and also used language which is the same in form and substance as that employed in the original resale statute. Both statutes have been construed as hereinbefore stated, and the Legislature must be held to have adopted same with the settled construction theretofore placed thereon by this court. This conclusion is based upon the well settled rule of construction which is stated in 59 C.J., at page 1061, as follows:

"Where a statute that has been construed by the courts of last resort has been reenacted in same, or substantially the same, terms, the Legislature is presumed to have been familiar with its construction, and to have adopted it as a part of the law, unless a contrary intent clearly appears, or a different construction is expressly provided for; and the same rule applies in the construction of a statute enacted after a similar or cognate statute has been judicially construed. So where words or phrases employed in a new statute have been construed by the courts to have been used in a particular sense in a previous statute on the same subject, or one analogous to it, they are presumed, in the absence of a clearly expressed intent to the contrary, to be used in the same sense in the new statute as in the previous statute."

Thus, without more, it follows that the very enactment of the amendment of the notice of resale was a legislative determination of its intent to make mandatory the notice prescribed by the statute. And, such being true, there remains to be considered only whether the curative provisions mentioned may be held to prevent or qualify such conclusion.

The curative provisions appear as the last paragraph of section 9 of the 1939 Act (68 O. S. 1941 § 432h). The preceding portion of the section makes resale tax deeds, executed in substantial conformity with the provisions of the preceding section 8 of the act, prima facie evidence of certain facts therein set forth in numerical groups. We quote groups 6 and 7 and the curative provisions that immediately follow:

"6. That the property was legally sold at resale to the grantee named in said resale deed and was duly advertised before being sold;

"7. That all proceedings, notices and duties provided, required and imposed by law prerequisite to the vesting of authority in the county treasurer to execute such deed had been followed, given, complied with and performed.

"To defeat the deed it must be clearly plead and clearly proven that one or more of the essential prerequisites to the vesting of authority in said county treasurer to execute such deed was wholly omitted and not done; and a showing that one or more of said prerequisites was irregularly done shall not be sufficient to defeat the deed."

Since long previous to the passage of the 1939 Act there has been in force a statute (68 O.S. 1941 § 452[68-452]) prescribing the details of a tax deed and making such deed presumptive evidence of certain facts, grouped in the same manner and carrying the same curative provisions. We held this statute applicable to resale tax deeds prior to the enactment of said 1939 Act. For comparison we quote the corresponding provision of the act referred to:

"Sixth. That the property was sold for taxes, as stated in the deed, and was duly advertised before being sold, and to defeat the deed it must be clearly plead and clearly proven that some one of the above named six requisites was wholly omitted and not done and a showing that any one or all of them was irregularly done will not be sufficient to defeat the deed."

Apart from the emphasis that may have been given to the curative provision by its being incorporated in a separate paragraph, the only new matter in the 1939 Act is to be found in said subparagraph 7, by the terms of which the resale tax deed is made prima facie evidence of all prerequisites to the vesting of power in the county treasurer to execute the resale deed. This is an expansion of the presumptive evidence provided in the earlier statute which applied only to those things specifically mentioned therein.

However, some expansion was necessary even if only to pursue the policy of the earlier act. Under the holdings of this court the title of a purchaser at resale is no less dependent upon the notice of the certificate sale than upon the notice of resale. And since subparagraph 6 of the 1939 Act, though comparable in form to subdivision 6 of the earlier act, is expressly limited in its application to the notice of resale, no presumption could attend the certificate sale notice unless otherwise provided. Such was accomplished by said subparagraph 7.

There is nothing in subparagraph 7 that could indicate that the prescribed notice of resale was to be deemed other than mandatory because it is purely a rule of evidence. However, it is therein recognized that some notices were prerequisite to vesting authority in the treasurer to execute the deed. This recognition is in complete accord with the legislative intent to make mandatory the provisions for resale notice by the said amendment contained in the same act.

Thus with the elimination of any qualifying force to be found in subparagraph 7, and not considering for the moment the effect of the amendment, we have here touching the resale a parallel situation to that confronting the court in the Welborn Case, for not only is the curative provision here involved the same in terms as that there considered, but the words "duly advertised before being sold" appearing in the earlier act, and considered and given controlling effect in the Welborn Case, likewise appear in subparagraph 6 of the 1939 Act. From this we conclude the holding therein as to the notice of certificate sale is for the reasons therein stated as fully applicable to the resale notice herein involved.

In view of the new emphasis placed upon the curative provisions by reason of the 1939 Act and the present recognition by this court of the importance thereof, we deem it well to say that neither the holding in the Welborn Case nor that made herein is intended to conflict with or impair the purpose of such provisions.

However liberal the construction to be applied, there remains by the very terms of the quoted provision relating to notice something which must constitute a minimum of performance. By reason of the many situations to which it applies, the legislative enactment is necessarily general in terms, and hence the ascertainment of the legislative intent as to what must constitute such minimum in a given case is addressed to the court, to be determined through judicial construction except where same is otherwise specifically declared. Thus, in the instant case, if there were involved some matter pertaining to the form of the notice or the designation therein of a name or description of the property or the amount of the taxes as well as the time of notice, such matters, other than that of the time, would be addressed to the court to be determined in light of the curative provision, while the matter of the time would have to be measured by the minimum standard that is fixed by said amendment. Being special in its enactment, it is in no wise impaired by the curative provision, which is general (Palmer v. King, 75 Okla. 276, 183 P. 411; In re State Treasury Note Indebtedness, 185 Okla. 10, 90 P.2d 19). The reason for the differing methods chosen is obvious. Successive sales require no variation in the time of notice and the period of notice, once fixed, cannot become an involved question, while the other situations by reason of their nature cannot be referable to a fixed standard, and the legislative intent in such situations is to be determined by the court under the legislative injunction contained in said curative provision.

On authority of the holding in the Welborn Case, supra, and the holding herein it is necessary that the judgment of the trial court be reversed.

The judgment is therefore reversed and the muse remanded to the trial court, with directions to render judgment for the plaintiff quieting the title to the land in the plaintiff, but before entering such judgment the plaintiff be required to pay into court, pursuant to 68 O. S. 1941 § 453, the full amount required by law to be tendered and paid into court as a necessary prerequisite to such judgment.

RILEY, OSBORN, DAVISON, and ARNOLD, JJ., concur. HURST, V.C.J., and BAYLESS, WELCH, and CORN, JJ., dissent.