Adams v. Rogers

• Decision Date: 06 July 1932
• Docket Number: Case Number: 20505
• Citation: 158 Okla. 163,1932 OK 514,13 P.2d 170
• Parties: ADAMS et al. v. ROGERS.
• Court: Oklahoma Supreme Court

1932 OK 514

13 P.2d 170

158 Okla. 163

ADAMS et al. v. ROGERS.

Case Number: 20505

Supreme Court of Oklahoma

Decided: July 6, 1932

Syllabus

¶0 1. Taxation--Statute Providing That Notice of Application for Tax Deed and Tax Sale Certificate Be Returned and Filed With County Clerk Held Mandatory.

Section 9749, C. O. S. 1921 [O. S. 1931, sec. 12759], provides, in part, that the notice of a demand for a tax deed, "with the tax sale certificate after being duly served or published or both, shall be returned and filed in the office of the county clerk, who shall make notations of its date, and the date of service on the delinquent sale record, and the fee for such service, and the publication shall be the same as for like services of summons, and shall be added to the amount necessary to redeem such sales. This requirement of the statute is mandatory and not directory.

2. Same--Statutes Relative to Redemption From Tax Sale Construed Liberally in Favor of Redemptioner.

The provisions of the statute relating to redemption from a tax sale are to be construed liberally in favor of the redemptioner.

3. Same--Mandatory Provision as to Notice of Application for Tax Deed.

The failure to comply with the aforesaid provisions of section 9749, supra, set forth in paragraph 1 of the syllabus is not a mere irregularity, but is an omission of an important and essential step in the issuance of tax deeds in divesting the owner of his title to the land.

4. Same--Notice Required to Be Given Mortgagee as Well as Owner of Land.

"In a proceeding to obtain a tax deed to land sold for delinquent taxes, where the holder of the tax sale certificate omits to give notice to a mortgagee, as well as to the owner, to redeem, the lien of the mortgage is not divested or in any way impaired by this execution of a tax deed, by reason of section 7, art. 2, of the Constitution of this state, and the due process clause of the Fourteenth Amendment to the federal Constitution." Savery v. Graves Farm Loan Inv. Co., 157 Okla. 173, 11 P. (2d) 462.

Appeal from District Court, Hughes County; Harve L. Melton, Judge.

Action by W. G. Rogers against I. C. Adams and others. Judgment for plaintiff, and defendants appeal. Reversed, with directions.

J. E. Whitehead, for plaintiffs in error.

Orr & Woodford, for defendant in error.

McNEILL, J.

¶1 This action was instituted in the district court of Hughes county by W. G. Rogers to quiet title under two certain tax deeds. Plaintiff claimed title to the premises in question by virtue of said tax deeds issued in favor of W. C. Foster, who thereafter conveyed said premises by quitclaim deed to plaintiff. Prior to and at the time of the execution of said tax deeds, I. C. Adams was the record owner to the premises in question, covered by a valid mortgage which had been assigned to Henry Zeddies. Many assignments of error are urged on the part of the defendants Adams. We consider but one. Was it jurisdictional that the notice of application for tax deed and the tax sale certificate be returned to and filed with the county clerk?

¶2 Section 9749, C. O. S. 1921 [O. S. 1931, sec. 12759] provides, in part, that the notice of a demand for a tax deed "with the tax sale certificate, after being duly served or published, or both, shall be returned and filed in the office of the county clerk, who shall make notations of its date, and the date of service on the delinquent sale record, and the fee for such service and the publication shall be the same as for like service of summons, and shall be added to the amount necessary to redeem such sale." This requirement of the statute is mandatory and not directory. See Gilbert v. Conservative Loan & Trust Co., 138 Okla. 1, 280 P. 278; Dawson v. Anderson, 38 Okla. 167, 132 P. 666; Smith v. Bostaph, 103 Okla. 258, 229 P. 1039; Felt v. Schaub, 134 Okla. 193, 272 P. 830; Mannus-Dewall v. Smith, 139 Okla. 195, 281 P. 807; State ex rel. Com'rs of Land Office v. National Bank of Commerce, 139 Okla. 134, 281 P. 579. So long as there exists the right to redeem by reason of the provisions of the statute, there is no completed sale. See Cain v. Ehrler (S. D.) 153 N.W. 941. The provisions of the statute relating to redemption from tax sales are to be construed liberally in favor of redemptioner. 37 Cyc. 1383; Woodward v. Von Zellen (Mich.) 207 N.W. 849; Van Roden v. Manso (N. J.) 156 A. 317; Philadelphia v. Schaeffer, 269 Pa. 550; Hellems v. Roszel (C. C. A. Fourth Circuit) 256 F. 606. The failure to comply with section 9749, supra, in the filing of the notice of a demand for a tax deed with a tax sale certificate in the office of the county clerk, whose duty it was to make a record of the fee and the amount necessary to redeem such sale, is not a mere irregularity, but is an omission of an important and essential step in the issuance of a tax deed in divesting an owner of his title to the land. Cain v. Ehrler, supra.

¶3 The right of redemption is favored and should not be cut off until the provisions of the statute have been complied with. The compliance with aforesaid provisions of section 9749, supra, furnishes the owner of the land additional,...