Patteson v. Myers , 183 Okla. 601 ( 1938 )

I am of the opinion that this resale tax deed is void on its face because it omits two recitals, namely, (a) the place of the original sale, and (b) that the land was legally liable for taxation, and that instead of following, we should overrule, Reeves v. Caldwell (1937) 179 Okla. 501, 66 P.2d 75. Prior to that decision, this court had been consistent in its decisions as to the necessary recitals for the various forms of tax deeds.

It must be borne in mind that a resale tax deed is based upon two sales: (a) The original sale, at which the county is an involuntary purchaser and secures only a tax lien; and (b) the second, or resale, at which the county forecloses its tax lien and vests in the purchaser full title. The statutes governing each sale are separate and distinct. A resale deed should contain some recitals as to each sale, and it is for the Legislature to prescribe what those recitals shall be. The Legislature has done so and has amended the statute from time to time (section 6033, St. 1903; S. L. 1909, page 1611; sec. 7412, R. L. 1910; sec. 9746, C. O. S. 1921; sec. 12756, O. S. 1931). Thus, in 1921, at the time of the resale involved in this case was had, the statute (sec. 9746, C. O. S. 1921) provided that such resale deed "shall contain a summary statement of the matters and proceedings of such resale". This statute had to do only with the recitals as to the resale, and was silent as to the recitals pertaining to the original sale; but there was a statute (sec. 9752, C. O. S. 1921), which had been in force since Territorial days, prescribing the form of deed based upon the original sale. In 1923 this court held in Cochran v. Sullivan, 94 Okla. 23, 220 P. 870, that these two statutes must be construed together, and that we must look to the form statute for the necessary recitals showing a valid first sale, and to section 9746, C. O. S. 1921, for the necessary recitals showing a valid resale. In Treese v. Ferguson (1925)120 Okla. 235, 251 P. 91, this court followed the Cochran Case and stated what recitals will be sufficient to show a valid second or resale. For many years, and until 1937, when Reeves v. Caldwell was decided, these cases were followed, and it was repeatedly held that unless such a resale deed, based upon a sale held while section 9746, C. O. S. 1921, was in force, contained each of the recitals of the form deed applicable to a resale deed, it would be held void. These decisions are based upon the sound rule of law that the legislative determination of the necessary recitals in a tax deed are mandatory and that the court has no right to add to or take from such recitals or to hold that any one of them is not necessary. Felt v. Schaub (1928)134 Okla. 193, 272 P. 830; Treese v. Ferguson, supra; Cheney v. Cox (1927) 125 Okla. 108, 256 P. 755; Eldridge v. Robertson (1907)19 Okla. 165, 92 P. 156; Kramer v. Smith (1909) 23 Okla. 381,100 P. 532; Turman v. Ingram (1921) 83 Okla. 198, 202 P. 993; Dixon v. Bowlegs (1923) 93 Okla. 47, 219 P. 665; Cochran v. Sullivan, supra; Price v. Mahoney (1935) 175 Okla. 355,53 P.2d 257; Cooley on Taxation (4th Ed.) secs. 1478, 1550, 1551; 61 C. J. pp. 1340 and 1341; Conners v. City of Lowell (Mass.)95 N.E. 412, Ann. Cas. 1912B, 627; Beggs v. Paine (N.D.) 109 N.W. 322; Henderson v. De Turk (Cal.) 128 P. 747; Hopkins v. Scott (1885) 86 Mo. 140.

"The language of the statute is mandatory in its terms and tenor, and has not been complied with in this respect, so far as the lot in question is concerned as shown by the face of the deed. * * * Where, as in this case, the statute prescribes the substantial form of an instrument by which property shall be conveyed, it cannot be conveyed by an instrument which does not recite the existence of the facts required. Nor can we go behind the deed to prove the existence of facts which should have been set forth in it. The liberal construction with regard to tax proceedings required by section 5667 of the statute, does not go to the extent of authorizing or directing the court to read into a tax deed a necessary provision which has been omitted therefrom by the official executing it, because such fact may be or has been proven to exist, and by so doing declare a deed to be valid which does not conform to the requirements of the statute. A liberal construction would, we think, require the court to declare an instrument valid where words are used declaring facts to exist which are equivalents of the statutory requirements. But in this case a compliance with the provisions of the statute which requires a tax deed to set forth the amount for which the property was sold, is entirely wanting, and there is, therefore, no room for a liberal construction to sustain the validity of the instrument." Lowenstein v. Sexton (1907) 18 Okla. 322,90 P. 410.

"A statute prescribing a particular form must be followed substantially, and recitals required by law must not be omitted or the deed will be void." Cooley, Taxation (4th Ed.) sec. 1478.

"It is well-settled law that where the statute prescribes the form of a tax deed, even though it requires only a substantial conformity thereto, a deed which omits to show any one or more of the facts which the statutory form should disclose, is void. This is so, because the statute, by prescribing the form, has thereby made every fact recited in the form a matter of substance." Beggs v. Paine, supra, 109 N.W. 323.

"It has uniformly been held in this state that a tax deed which misrecites or omits to recite any one of the facts required by the statute to be recited has no effect at all as a conveyance, the theory being that it is competent for the Legislature to prescribe the form of instrument which, as the result of a proceeding in invitum, can alone divest the citizen of his title, and that, where the statute prescribes the particular form of the tax deed, the form becomes substance, and must be strictly pursued, and it is not for the courts to inquire whether the required recitals are of material facts or otherwise." Henderson v. De Turk, supra.

"The Legislature has required a certain fact to be substantially stated, which, in this case, has not been done, and we are not authorized to eliminate from the statute a recital which the Legislature has declared the deed must substantially contain, nor are we authorized to say that this or that recital, required to be stated substantially in a tax deed, is unnecessary and immaterial, but must, on the contrary, presume that the Legislature deemed all the recitals which it required to be set out, material." Hopkins v. Scott, supra.

On April 9, 1923, the statute as to the necessary recitals in a resale deed was amended so as to require that such a deed "be upon a form to be prescribed by a State Examiner and Inspector". See section 12756, O. S. 1931 (68 Okla. St. Ann. sec. 415). In Hatchett v. Going (1926) 121 Okla. 25,246 P. 1100, this court decided what recitals would be sufficient to sustain a deed under this statute. The Hatchett Case has been consistently followed except as it was restricted in Mahoney v. Estep (1934) 171 Okla. 101, 38 P.2d 537, and is now a rule of property.

Thus for the necessary recitals of a resale deed based upon a sale held in 1921, we look to Cochran v. Sullivan, Treese v. Ferguson, and cases following those decisions, and sections 9746 and 9752, C. O. S. 1921; while for the necessary recitals in a resale deed based upon a resale held since April 9, 1923, we look to Hatchett v. Going, Mahoney v. Estep, and cases following those decisions, and section 12756, O. S. 1931. The statutes construed in the two lines of decisions are different, and until the decision in Reeves v. Caldwell was rendered, it was not thought that there was any conflict between them. I am convinced there is no such conflict.

Since we are committed to the rule that a resale deed based upon a sale held in 1921 must contain the recitals of the form deed in so far as they are applicable to a resale deed, the question arises: What recitals are applicable to such a deed? The answer to this question should be based upon some sound legal principle and not upon our arbitrary determination based upon no substantial reason. I think this question can best be answered by examining the form deed and eliminating the recitals therein that are not applicable to a resale deed, and the remaining recitals should be held applicable. Obviously, a tax deed should recite the truth, and it should contain enough recitals to show valid action. Magill v. Martin (1874)14 Kan. 67.

We then come to the statutory form for certificate tax deeds, which, in so far as its recitals are concerned, is as follows (the paragraphing and figures in parentheses being my own for the purpose of subdividing into logical recitals):

(1) Whereas, A. B., on the ______ day of ______, A.D. ______ produced to the undersigned C. D., treasurer of the County of _______________ in the State of Oklahoma, a certificate of purchase of writing bearing the date of the ______ day of __________ signed by E. F., who at the last mentioned date was treasurer of said County,

(2) from which it appears that

(a) A. B. did on the ______ day of ______,

(b) purchase at public auction,

(c) at the office of the county treasurer in the court house in said county,

(d) the tract, parcel or lot of land lastly in this indenture described, and which tract, parcel or lot was sold to __________

(e) for the sum of __________,

(f) being the amount due on the following tract or lot of land,

(g) returning (sic) delinquent for non-payment of taxes, costs and charges (h) for the year ______, to-wit: (Here insert a description of the land offered for sale)

(3) and it appearing that the said A. B. is the legal owner of said certificate of purchase,

(4) and the time fixed by law for redeeming the land therein described having now expired

(5) and the same not having been redeemed as provided by law

(6) and the said A. B. having demanded a deed for the tract of land mentioned in said certificate,

(7) which was the least quantity of the tract above described that would sell for the amount due thereon for taxes, costs, and charges, as above specified,

(8) and it appearing that said lands were legally liable for taxation,

(9) and had been duly assessed

(10) and properly charged on the tax book or duplicate

(11) for the year __________

(12) and that said lands had been legally advertised for sale for said taxes

(13) and were sold on the ______ day of ______.

It is apparent that the first recital is not applicable to resales, for the reason that no certificate of purchase is issued to the county and, consequently, it cannot be produced.

The second recital is only partly applicable. Subdivision (b) thereof is inapplicable because the county cannot purchase at "public auction." It has no right to purchase in a case where there is another bidder offering the amount due. Recitals 2(a) and 2(b) should be rewritten to show the facts and right of the county to purchase. Wade v. Crouch (1904) 14 Okla. 593,78 P. 91; Hill v. Turnverein Germania of Oklahoma City (1920)77 Okla. 242, 187 P. 920; Kramer v. Smith, supra; 61 C. J. 1346; Cooley, Taxation (4th Ed.) sec. 1448. All the remaining subdivisions of the second recital are applicable.

Recital No. 3 is inapplicable because there is no owner of a certificate of purchase.

Recital No. 6 is inapplicable because there is no holder of a certificate of purchase demanding a tax deed.

Recital No. 7 is inapplicable because the county can purchase nothing less than the whole of the property assessed and that for the amount due.

The remaining recitals are applicable and are necessary to show a valid first sale.

Until the decision in Reeves v. Caldwell, this court had never, to my knowledge, held that any one of said applicable recitals based upon a sale held prior to April 9, 1923, was not necessary to the validity of the resale deed. In all the cases passing upon it, the omission of the particular recital was held to render the deed void. Tax deeds have been held to be void for failure to contain the following recitals:

(1) The failure to contain any of the recitals of the form deed. Adams v. Toliver (1923) 91 Okla. 125, 217 P. 851; Adams v. Callander (1923) 93 Okla. 228, 220 P. 344; Gaffney v. First Nat. Bank (1923) 94 Okla. 177, 221 P. 49;

(2) The recital of the amount for which the property was sold. Lowenstein v. Sexton, supra; Sires v. Parriott (1925)106 Okla. 244, 233 P. 748; Cochran v. Sullivan, supra;

(3) The recital that the land had not "been redeemed as provided by law." Moore v. Baugh (1932) 154 Okla. 158,7 P.2d 131;

(4) The recital that the taxes were "properly charged on the tax books or duplicates." Felt v. Schaub, supra;

(5) The recital showing the right of the county to purchase. Wade v. Crouch, supra; Hill v. Turnverein Germania of Oklahoma City, supra;

(6) The recital in the certificate tax deed that the certificate of purchase was produced. Felt v. Schaub, supra;

(7) The recital that the land was "legally liable for taxation." Felt v. Schaub, supra; Kirsch v. Tracy (1935)174 Okla. 489, 55 P.2d 428.

If the absence of any one of the above recitals renders the deed void, as we have held it does, then the omission of any other recital prescribed by the Legislature which is applicable to resales should render the deed void. Though we have no right to inquire into the reason back of the legislative requirements as to recitals in tax deeds, any more than we have to inquire into the reason or wisdom of the statutes relating to the execution or form of wills (In re Abram's Will [1938]182 Okla. 215, 77 P.2d 101), yet there is a good reason for not requiring the recitals that are not applicable to a resale, since to require them would be to make the deed speak an untruth. But there is no reason for not requiring the recitals which are applicable to a resale tax deed and which speak the truth and show valid action.

I do not mean to say the recitals must appear in the tax deed in the language of the statute, since section 12762, O. S. 1931 (68 Okla. St. Ann. sec 454), requires only a substantial compliance therewith. By a substantial compliance it is not meant that any one of the requirements may be entirely omitted, but that all the required recitals being present, they need not be in the exact language of the statute. The use of language meaning the same as that used in the statute will suffice. The liberal construction enjoined upon us by section 12761, O. S. 1931 (68 Okla. St. Ann. sec 453), does not go to the extent of authorizing us to read into a deed a recital that is not in substance contained therein. Lowenstein v. Sexton, supra. The proper method of determining in each case whether the tax deed substantially complies with the statute is to lay the tax deed alongside the statute and see if each recital prescribed by the statute, and applicable to the particular deed, and which makes it speak the truth, appears in the tax deed by the use of any language meaning the same. If it does, the deed should be held valid; if not, it should be held void. Cheney v. Cox (1926)125 Okla. 108, 256 P. 755.

By inadvertently failing to observe when the resale was held, the court fell into error in Reeves v. Caldwell. In that case a deed based upon a resale held in 1921 was involved and it was held that the absence of the recitals that the land was "legally liable for taxation," and of the place of the original sale, did not make the deed void on its face. The court assumed that the deed was governed by Hatchett v. Going (1926)121 Okla. 25, 246 P. 1100, and proceeded on the theory that there was a conflict between the cases of Hatchett v. Going and McGrath v. Rorem (1926) 123 Okla. 163, 252 P. 418, on the one hand, and Felt v. Schaub and Kirsch v. Tracy on the other, and overruled the latter two cases in so far as they held that the recital that the land is legally liable for taxation is necessary. But an analysis of those cases shows that there is in fact no conflict between them. The resale deed in Hatchett v. Going was based upon a resale held in 1924 after the statute governing Reeves v. Caldwell had been amended. While McGrath v. Rorem dealt with a deed based upon a resale held in 1921, the court based its decision entirely on the case of Treese v. Ferguson, supra, wherein this court approved a deed which did contain the recital that the land was legally liable for taxation. Neither case refers to the failure of the deed to contain the recital now under discussion. A certificate tax deed was involved in Felt v. Schaub and not a resale tax deed, and the court correctly held (following the language of the and the decisions above cited to the same effect) that it must substantially follow the statutory form for such deeds, which contains the recital in question. A resale deed dated in 1920 was involved in Kirsch v. Tracy, which followed prior decisions on the same subject, and thus it appears that the court correctly held that it must contain a recital that the land was legally liable for taxation. The legal effect of the decision in Reeves v. Caldwell, if permitted to stand, will be to cast doubt upon the many decisions holding that the statutory provisions prescribing the form of a tax deed are mandatory, and the failure to substantially comply therewith renders the deed void. The decisions in Felt v. Schaub and Kirsch v. Tracy, are in harmony with the former decisions above cited, and I think we should adhere to the principles therein stated. It is to be regretted that the error was made in Reeves v. Caldwell, but it is our duty now, at the first opportunity, to correct, and not perpetuate, the error.

If the decision in Reeves v. Caldwell is permitted to stand and this court is to decide in each case what recital is and what is not applicable to a resale deed, without fixing a standard by which such determination is to be made, the result will be confusion and the bar and bench will never know what recitals are required.

It may be that the Legislature should have prescribed a shorter and more simple form of tax deed, but we have no right to say so. Our duty is to enforce the law as it has been written.