Fiedler v. Botts ( 1915 )

A rehearing is asked in this case on the grounds that the decision herein is in conflict with an express statute and controlling decision to which the attention of the court was not called, and which were overlooked by the court in rendering its decision, and also because, if a tender was necessary to be pleaded in this case, it was sufficiently pleaded in the petition.

The statute relied on is section 6041, Wilson's Stat., as amended by Laws 1909, p. 616, which provides:

"Whenever any action or proceeding shall be commenced and maintained before any court or judge to prevent or restrain the collection of any tax or any part thereof or to recover any such tax previously paid, or to recover the possession or title of any property, real or personal, sold for taxes. * * * or to restrain prevent, recover or delay any payment of taxes, the true and just amount of taxes due upon such property or by such person if in dispute, must be ascertained and paid before the judgment prayed for, and if not in dispute must be paid in accordance with the provisions of this act."

This statute is not in conflict with the decision herein, because, while it provides specific instances in which the taxes must be paid, it does not attempt to say that in any other proceeding to restrain the issuance of a tax deed that a tender must not be made. The underlying error of the petition for rehearing is in assuming that the tax sale was void because the treasurer sold the entire tract, and it was not offered to the bidder who would pay the amount due on the smallest portion of the same. This does not render the tax sale void, but, at most, it would only be voidable, although we do not at this time decide that this would be a defense in an action of ejectment on a tax deed issued under such a sale. It is not claimed here that the land was not taxable, nor is it claimed that there was any irregularity in its assessment; the only claim being that the treasurer sold the entire tract, instead of offering it to the bidder who would purchase the smallest part of the tract for the taxes.

In O'Keefe v. Dillenbeck, 15 Okla. 437, 83 P. 540, the tax deed was attacked on the ground that the board of equalization did not meet on the proper day, but at some other time than that provided by law. The court say:

"While if it met on some other day than the particular day appointed by statute, it does not necessarily follow that its meeting would be illegal and void, but would only at best be irregular, and section 5667, above referred to, contains the express provision that to defeat the deed it must be clearly pleaded, as well as proven, that there was an entire failure to do some one of the acts required by statute. And to hold that the irregular doing of one of the requirements would defeat the deed would be to entirely ignore the statute."

The reasoning of this case is in point. If an irregular doing of one of the requirements of the statute will not defeat the deed, it will not create an equity to enjoin the issuing of the deed. We think this is manifest.

The petitioner also relies on the case of Keller v. Hawk,19 Okla. 407, 91 P. 778, as opposing the decision herein. This case, however, is not an authority for the plaintiffs in error. In the first place the court held that selling a number of town lots together rendered the sale void. It was therefore not a voidable sale as in the case at bar, and we fully recognize the authority of that case that when a tax sale is void, as distinguished from voidable, no tender is necessary. Another clear distinction between Keller v. Hawk, and the case at bar is that that was an action in ejectment, and not a proceeding in equity. The maxim, "That he who comes into equity must come with clean hands," does not apply to actions at law, or to cases in which the party asserting the right is not asking the aid of a court of equity. This is well illustrated in the common case of a foreclosure of a mortgage barred by the statutes of limitations. If the mortgagee attempts to foreclose, the mortgagor can plead the statutes of limitation, and is not required as a condition precedent thereto to make a tender of the amount due on the mortgage, because he is asking no equitable relief himself, but, should the mortgagor come into a court of equity to remove a cloud from his title, the cloud being a mortgage barred by the statutes of limitations, he must do equity by tendering the amount of the mortgage with interest. The case of Keller v. Hawk is in no way applicable.

The next contention in the petition for rehearing is that the plaintiff has pleaded a tender; the alleged plea of tender being in these words:

"That in case of any claim or demands of said defendant Wm. G. Botts for or on account of taxes paid upon said premises above referred to, or tax certificates or demands held by him against the real estate above described, be declared valid, that the plaintiff be permitted to discharge the same with reasonable interest."

This is not a proper plea of tender. It is conditional, and in any event a tender of what the defendant was not entitled to, as it does not tender the amount of taxes, interest, penalties, and costs, but conditionally offers to pay the taxes with reasonable interest if they are held to be valid. InPuls v. Casey, 18 Okla. 142, 92 P. 388, it is said:

"Ordinarily, where a tender is pleaded and is a condition precedent to a right of recovery, an actual tender and offer to pay the sum due unconditionally is required."

In Odium v. Railroad Co., 94 Ala. 488, 10 So. 222, it is held that a tender accompanied with condition which the party has no right to impose is of no avail. We therefore hold that the plea was bad.

We recommend that the petition for rehearing be refused.

By the Court: It is so ordered.