House v. Mainka , 196 Okla. 174 ( 1945 )

The question presented is the effect of including in notice of resale of real estate for nonpayment of taxes a certain part of the taxes assessed, but not delinquent upon the date of the first publication of notice.

At the November, 1938, tax sale for 1937 taxes the county became the purchaser. There was no redemption and no taxes paid for 1938 to 1940, inclusive. Notice of 1941 resale was first published April 10, 1941, and included in the total of $118.29 all taxes levied for 1940. The last quarter of 1940 taxes did not become delinquent until May 1, 1941, 68 O. S. 1941 § 351. The land is farm land and was purchased at resale by an individual purchaser at a bid equaling the total amount of taxes, interest, penalties, and costs as disclosed by the notice of sale.

The notice should have excluded the last quarter of the 1940 taxes. Shnier v. Vahlberg, 188 Okla. 471, 110 P.2d 593. The notice of resale was erroneous in that it was excessive in the sum of approximately $6, which was the portion of the 1940 taxes which had not yet become due and delinquent. That error and excessive amount in the notice for the reason indicated renders the sale invalid. See Lind v. McKinley, 196 Okla. 4,161 P.2d 1016.

The judgment of the trial court sustaining the validity of the resale deed is reversed, and the cause remanded, with directions to render judgment for the plaintiff; the plaintiff however, to be required to fully comply with the tender statute.

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