Casker v. Dennis ( 1952 )

DAVISON, Justice

(dissenting).

:I cannot concur in'the majority' ¡Opinion in this case fot the reason that I do not think the-rules of law: stated in the, syllabus are applicable to the facts herein.- In addition, I cannot see the consistency between the .allegation in the petition that Mr. and Mrs. Dennis were claiming and asserting a claim and title to the realty-adverse to plaintiff’s title and the argument-that the judgment quieting title is final because plaintiff had no knowledge that Mr. and Mrs. Dennis were claiming and asserting á claim, and title to the realty adverse to plaintiff’s title. As to the first paragraph thereof, I cannot understand how ,the recording laws of this state, which are the foundation of constructive notice of those conveyances properly recorded, could have any bearing on the rights of a purchaser at tax resale or county commissioners’ sale based on tax resale. If the tax sale statutes are complied with, the claims and title of all persons are cancelled and terminated whether such claims are known or unknown or are apparent from the record or not. The case cited, Ware v. Tyer, to support the proposition, deals with ordinary purchasers of the property and has no application to-tax sales.

As to the second paragraph of the syllabus it seems to be overlooked that the application to vacate judgment herein, was filed by one original defendant, and the heirs of another original defendant who were served by publication and, as against whom, judgment was by default. Under the provisions of 12 O.S.1941 § 176’ they had the right to have the judgment vacated and be let in to defend at any time within 'three years from the date of rendition of judgment. The statute gives this right of vacating the judgment, and defending the action, irrespective of the validity of the judgment. The only requirements are that the defendants were ignorant of the pendency.of the action; that the judgment was taken by default after service by publication; and that defendants have a good defense to the action. There could be no better defense to this' character'of action than that the tax deed, upon which it was founded, was absolutely -void. This does not constitute a collateral attack on the judgment but is direct and' is authorized by statute. The cases, cited to sustain the application, of the principle stated to the facts herein, deal only with situations' where the attack is made in a collateral proceeding by one not a party to the original judgment, or by an original defendant as to whom the judgmént has become final.

To me, the conclusion reached by the majority of the court-has the effect of sustaining a void tax deed on technical grounds not applicable, to the facts.

I therefore respectfully dissent.