Westerheide v. Wilcox

This is an action in ejectment and to quiet title as against two tax deeds.

The parties are in the same relation here as in the trial court and are herein referred to as plaintiffs and defendants as they appeared below.

The tax deeds are assailed upon the grounds that the land described in the deeds was not properly listed on the tax rolls for the years for which it was sold; that the taxes were not delinquent for those years; that the sales were not properly advertised and that no notice of intention to apply for a deed was served upon the owners of the land.

Defendants denied the allegations with respect to above matters and in addition plead the statute of limitations; for failure of plaintiff to tender taxes, penalties, etc.; then pleaded champerty under sections 1939, 1940, O. S. 1931, 21 Okla. St. Ann. § 548.

The trial court did not order tender, but proceeded to try the case on its merits as to the validity of said tax deeds, and made general findings of facts and entered judgment for defendants.

The deeds here mentioned are both based upon tax sale certificates. They are for the same land, but the certificates are based on sales for delinquent taxes for different years. The first deed was issued to the Hominy National Bank, under date of September 26, 1930, based upon tax sale certificate issued in November, 1926, for delinquent taxes for the year 1925, and was filed for record December 10, 1930.

The other deed was issued to Maude Q. Black, dated October 5, 1933, based upon tax sale certificate issued at the November, 1928, sale for delinquent taxes for the year 1927.

The defendant First State Bank of Fairfax is successor to Hominy National Bank and has filed a disclaimer.

Plaintiffs contend that both deeds are void on the face thereof, and assert error of the trial court in not canceling same as clouds on their title.

Defendants claim their said deeds are valid on their face and that the statute of limitations (sec. 12763, O. S. 1931) bars plaintiffs' action.

The ground relied upon by plaintiffs as rendering the Black deed void on its face is that it discloses a sale of more than one tract of land for a single consideration, thus reflecting an unauthorized and invalid assessment of the lands under sections 12616 and 12628, O. S. 1931.

The deed to the Hominy National Bank is assailed upon the same ground together with other grounds hereinafter mentioned.

As to the Black deed, defendants contend that it conveys but one tract of land, and in all other respects is regular and valid on its face and cannot be attacked after the expiration of one year from date of its recordation.

The land as described in the deed is: S. 1/2 N.W. 1/4; W. 1/ 2 S.E. 1/4; S.W. 1/4, sec. 2, twp. 22 N., R. 9 E., 320 acres, Osage County, Oklahoma. Section 12616, O. S. 1931, provides, in substance, that all taxable lands in each township shall be listed in numerical order beginning with the lowest number section in the lowest number township in the lowest number range and ending in the highest number section, township, and range, with the number of acres in each tract set opposite the same in one column and the assessed value thereof in another column.

Plaintiffs contend that the land conveyed as described in the deed constitutes three separate tracts within the meaning of the assessment statute, supra, and since the deed shows that they were all sold for a single aggregate sum, without setting forth the amount of taxes against each tract separately, the deed is void on its face. It was stipulated that the land was assessed as described in the deed under a single valuation.

We cannot agree with plaintiffs in this contention.

The land as described consists of 160 acres in the S.W. 1/4 of sec. 2; 80 acres in the S. 1/2 of the N.W. 1/4 of sec. 2, lying immediately north of the S.W. 1/4, and 80 acres in the W. 1/2 of the S.E. 1/4 of said sec. 2, immediately east of the 160 acres. It is all in one body in the same section, undivided by any highway or section line. The statute in force at the time the land was assessed and sold did not require that rural lands be assessed separately by any particular subdivision. This was first required by section 5, chap. 115, S. L. 1933.

In the instant case there is nothing in the deed to indicate that the land therein described is not one separate compact tract of land.

Furthermore, the law in force at the time the land was assessed, section 9666, C. O. S. 1921, in substance required each taxpayer to meet the tax assessor at the time and places set forth, and list property for taxation. By other provisions, real property was to be listed and valued biennially. The presumption is that the owner of said land complied with said law and listed and had valued the land here involved as one tract.

Under said statutes, lands lying in a contiguous body, all in the same section, owned by one person or two or more persons in common, for the purpose of taxation and sale, could have been, as the law then existed, listed, valued, assessed, taxed, and sold for delinquent taxes as a single tract.

Turman v. Ingram, 83 Okla. 198, 202 P. 993, and Dixon v. Bowlegs, 93 Okla. 47, 219 P. 665, are cases cited and relied upon by plaintiffs. The deed involved in Turman v. Ingram, supra, showed upon its face that three separate certificates were issued for the three parcels of land involved, each certificate showing the amount for which the respective lots or parcels were sold. The tracts were listed separately, sold separately, and a separate certificate was issued covering each tract.

In Dixon v. Bowlegs, supra, it appears from the opinion that the evidence showed that the land in question was assessed as two separate tracts. The deed recited a single consideration. The facts clearly distinguished those cases from the instant case. We, therefore, hold that the deed in question is not void on its face as disclosing a sale of more than one tract for a single sum due for taxes on the whole.

Plaintiffs also contend that though the Black deed be not void on its face, it is nevertheless void for her failure to serve notice on the owners of the land of intention to apply for a deed as required by section 12759, O. S. 1931.

It appears from the record that no notice directed to Louie Henderson, as owner of the land, of intention to apply for a tax deed was issued or served upon Henderson, who was then the record owner, unless the then record owner was the Hominy National Bank or its grantee. There was some evidence, however, that notice directed to the Hominy National Bank, as the record owner and person in possession, was served upon Louie Henderson and Martha W. Henderson on June 18, 1933, 108 days prior to the issuance of the Black deed.

This notice and proof of service thereof were not shown to have been filed with the county treasurer. An entirely different notice directed to the Hominy National Bank, J.A. Presbury, former president and liquidating agent, and to the First State Bank at Fairfax, and J.A. Presbury and J.H. Conner as record owner, was shown to have been served on them on July 24, 1933, and Mort Wilcox acknowledged receipt of copy of said notice on July 25, 1933.

This requires consideration of whether the tax deed to the Hominy National Bank was void. If void, notice to said bank was insufficient notice to the record owners of said land. Cunningham v. Webber, 171 Okla. 211, 42 P.2d 244.

But we need not consider that question if we are to follow Price v. Mahoney, 175 Okla. 355, 53 P.2d 257, since it does not appear that the Black deed is void upon its face. In Price v. Mahoney, supra, it is held:

"The issuance of a tax deed fair on its face and based on proper jurisdictional prerequisites cuts off the right of redemption. The recording of a tax deed fair, — not void, — on its face sets in motion the statute of limitations, and when the statutory period of time has elapsed it cannot be attacked, though not based on proper jurisdictional prerequisites. The issuance of a tax deed void on its face does not cut off the right of redemption, and the recording of such a deed does not start in motion the statute of limitations."

The holding reflected in the second sentence of the above quotation is directly in conflict with our former decisions. It cannot be the law as applied to cases where the land was not subject to taxation, or where the taxes were paid, or where the assessment was illegal.

We have repeatedly held that service or written notice upon the owner of intention to apply for a tax deed is an essential and necessary prerequisite to the issuance of a valid tax deed, and that failure to give such notice renders the deed void.

In a number of cases before Price v. Mahoney, supra, we have held that a tax deed issued without service of such notice is void and subject to attack after the expiration of the one-year limitation period. Henderson v. Langley, 173 Okla. 550,49 P.2d 167; Carl v. Stith, 153 Okla. 16, 4 P.2d 738; Hutchins v. Richardson, 100 Okla. 80, 227 P. 432; Union Savings Ass'n v. Cummins, 78 Okla. 265, 190 P. 869; Warrior v. Stith,174 Okla. 150, 50 P.2d 179 (notice to prior tax certificate holder); Cunningham v. Webber, supra; and Bowen v. Thompson,120 Okla. 5, 249 P. 1109.

In McAfee v. Harden, 180 Okla. 546, 71 P.2d 463, the judgment of the trial court held a tax deed void because no notice of application for tax deed was served upon the owner of the land, and with reference to the statute of limitation, we there stated:

"Under the rule announced in Lind v. Stubblefield,138 Okla. 280, 282 P. 365; Farmers National Bank v. Gillis,155 Okla. 290, 9 P.2d 47; Baker v. Rogers, 148 Okla. 279, 1 P.2d 366; Cunningham v. Webber, 171 Okla. 211, 42 P.2d 244, and other cases, the one-year statute of limitation provided in section 12763, O. S. 1931, does not apply where the tax deed relied upon is void. We apply such rule here, and conclude that the defendant is not bound by such statute of limitation."

Again, in Deneen v. Gillespie, 180 Okla. 342, 70 P.2d 1078, we held:

"The statute of limitations with reference to resale tax deed relates to resale tax deeds issued by one with authority to sell the land at a resale and to issue a deed. They do not relate to resale tax deeds issued by one who did not have authority to sell the land at a resale and to issue a deed. Unless a resale tax deed was executed by one with authority to sell the land at a resale and to issue a deed, it is in legal effect a mere scrap of paper and it is not a resale tax deed, although so denominated therein and although it has the general appearance thereof."

In the latter case the question of notice was not involved, but in Lind v. Stubblefield, supra, we pointed out that notice to the owner of intention to apply for a tax deed is analogous to process in the court, and that without such notice, the owner is deprived of his property without due process of law. To this we may add that section 12757, O. S. 1931, 68 Okla. St. Ann. § 393, gives the owner of any land sold for taxes, or any person having a legal or equitable interest therein, the right to redeem the same at any time within two years after the day of such sale, or at any time before the execution of a deed of conveyance thereof by the county treasurer.

Section 12759, O. S. 1931, 68 Okla. St. Ann. § 451, provides:

". . . That before any holder of a certificate of purchase issued at any tax sale of real estate shall be entitled to a deed as provided in this section, he shall cause a written notice signed by himself to be served upon the owner of the land if he is within the state, and also upon the person in possession of the said land (if the same be occupied), which notice shall recite the sale of the said lands, specifying the date of such sale and notifying such person that unless redemption is made from such sale within 60 days after the date of the service of such notice, a tax deed will be demanded and will issue as provided by law."

The right to redeem is a valuable right of which the owner of the land may not be deprived without due process of law, and in such cases the required statutory notice is a vital part of due process of law.

Furthermore, in Price v. Mahoney, supra, it was not necessary to pass upon the question of whether a tax deed valid on its face, though issued without notice to the record owner, set in motion the statute of limitation when such deed is placed on record. In that case the deed under consideration was found and held to be void on its face and wholly insufficient to set in motion the statute of limitation. It was apparently this fact that caused the adoption of the opinion in Price v. Mahoney, supra, holding that "the recording of a tax deed, fair — not void — on its face, sets in motion the statute of limitations, and when the statutory period of time has elapsed it cannot be attacked, though not based on proper jurisdictional prerequisites."

We are now convinced that the rule stated in Lind v. Stubblefield, supra, and the other cases cited, and again followed in McAfee v. Harden, supra, is the better rule. And Price v. Mahoney, supra, insofar as it conflicts with Lind v. Stubblefield, supra, on the question of notice to the owner of intention to apply for tax deed, and insofar as it would appear to hold that the recording of a tax deed fair on its face sets in motion the statute of limitations, where the land was not subject to taxation, or where the taxes were paid, or the assessment was illegal, is expressly overruled. What we have said in reference to the one-year statute of limitations applies with equal force and for the same reasons to the two-year statute of limitations, section 99 O. S. 1931, 12 Okla. St. Ann. § 93, subd. 3, urged in Ahe brief of defendant in error.

This requires consideration of the effect of the first tax deed issued to the National Bank of Hominy. This deed is also assailed under the proposition that more than one tract of land was conveyed. What we have said with reference to the Black deed applies to the bank deed, and said deed is not void on its face on the ground that more than one tract was conveyed.

But our attention is now called to the recitation in the bank deed that notice of intention to apply for the deed by the bank was served on the owner and occupants of the land by the legal owner of the tax sale certificate.

In Channell v. Jones, 184 Okla. 644, 89 P.2d 769, it is held:

"A tax deed which shows upon its face that the notice required by section 12759, O. S. 1931, was served by the certificate holder and not by one of the persons designated by section 171, O. S. 1931, is void."

In the body of the opinion, it is said:

"The tax deed is therefore void upon its face and it is not necessary that the action to cancel the same be brought within one year from the date of recording."

Under the rule there stated the tax deed to the Hominy Bank is void.

In Cunningham v. Webber, supra, it is held that notice of intention to apply for a tax deed served by publication and addressed to the holder of a void resale tax deed was insufficient as notice to record owner. Therein is cited with approval Conners v. City of Lowell, 209 Mass. 111,95 N.E. 412, wherein it was held:

"One holding under a recorded tax deed, invalid on its face, is not a 'person appearing of record as owner,' within Rev. Laws, c. 12, sec. 15, requiring an assessment to the owner of record; for, when a tax deed fails to convey a title, it fails to convey the rights of the original owner, who remains the only person appearing of record as owner, and a sale founded thereon is void."

The tax deed to the bank is therefore void.

On the question of whether plaintiffs should be required to tender all taxes, penalties, interest, and costs as required by section 12761, O. S. 1931, 68 Okla. St. Ann. § 453, the decisions of this court have not been in harmony.

We need not here point out the apparent conflict in some of the cases. That was done in Schulte v. Herndon, 184 Okla. 77,84 P.2d 607. Therein we said:

"The tender statute applies whether the tax deed is valid, voidable, or void where, as here, the land is liable for taxation, has been assessed and extended upon the tax rolls in substantial compliance with the statute, and the taxes have not been paid."

Had the instant case been commenced after the decision in Schulte v. Herndon, supra, we would not hesitate to direct that this case be dismissed for failure to comply with the statutory requirement of such tender. Since this case was commenced prior to that decision, we deem it proper, in view of the conflict in the decisions at that time, to give plaintiff an opportunity to comply with said statute.

The judgment is reversed and the cause is remanded for further proceedings not inconsistent with the views herein expressed, with further directions to allow plaintiffs ten days after mandate is returned and entered of record to comply with the statute relative to tender of taxes, penalties, interest, costs, etc., and upon his failure so to do, to dismiss the action.

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