Sitton v. Hernstadt

The first complaint made of the former opinion is that the proof, contained in the record, that the first publication of the notice of resale was prior to the expiration of two years from the date of sale to the county, and that it was published once each week for four consecutive weeks immediately preceding the sale, was overlooked. It is contended that this proof rendered the resale deed valid under the holding of this court in Cochran v. Sullivan, 94 Okla. 23, 220 P. 874. A complete answer is that plaintiff brought this suit resting his right to recover on the resale deed, and asked to have the title quieted in him, and the defendant enjoined from interfering with his title or possession. He thereby tendered the resale deed, and not his right to a valid deed in issue. A resale deed, void on its face, cannot be made valid by proof that the holder is entitled to a valid deed. This court has recently held in Pierce v. Barrett, 83 Okla. 283, 220 P. 652; Adams v. Mottley, 97 Okla. 230, 223, Pac. 356; Adams v. Lockridge Grain Co., 100 Okla. 215, 229 P. 252, and Tibbetts v. Rdynolds,101 Okla. 119, 223 P. 185, that the resale deed must contain a statement of the acts and proceedings in connection with the tax sale and resale from which the court may determine that all legal requirements have been satisfied in order to constitute a resale deed valid on its face; and that a legal conclusion of the officer executing the deed, in lieu of a statement of facts, purporting to show the doing of a prerequisite act to validate a sale and resale of real estate for taxes renders the deed void upon its face. In this case the recital in the deed after showing that the land was sold for taxes and bid in by the county on the 4th day of November, 1918, continues:

"Whereas, said tract, parcel or lot of land so sold as aforesaid to Stephens county, having remained unredeemed for a period of two years from said date of sale, and no persons having offered to purchase the same for the taxes, penalties and costs due thereon, the same was duly and legally advertised for sale at resale for said taxes, cost, penalty and interest accrued on same, and so remaining due, delinquent and unpaid, and was on the 23d day of November 1920, by A.B. Garris, the undersigned county treasurer of said county pursuant to said advertisement, offered for sale at public auction for cash at the office of the county treasurer in the court house in and for said county of Stephens, where by law the taxes are made payable, and was then and there sold to H.W. Sitton, in the manner required by law, for $75, he being the highest and best bidder therefor. * * *"

In determining whether a deed is valid or void on its face the recitals of fact contained in it must be considered to the exclusion of all other evidence. By these recitals it is made to appear affirmatively that the publication of the notice was commenced after two full years from date of sale had expired and no one had appeared to redeem. The two year period for redemption expired November 4, 1920. The four consecutive weekly publications could not have been had between that date and the date of sale, November 23, 1920. These facts appearing in the recital in the deed, under the above cited cases, rendered the deed void on its face.

It is also contended that the opinion is in conflict with the opinion in O'Keefe v. Dillenbeck, 15 Okla. 450, 83 P. 437, on the question of the statute of limitation. In that case it was expressly stated that the question as to whether a deed, void on its face, was sufficient to support the statute of limitation, was not involved and not decided. In all the above cited cases it was held that a resale tax deed, void on its face, is not sufficient to set the statute of limitation in operation where the right to recover is based upon the deed.

The former opinion is adhered to.

By the Court: It is so ordered.