Airy v. Thompson

• Decision Date: 22 December 1931
• Docket Number: 22401.
• Citation: 6 P.2d 445,154 Okla. 1,1931 OK 770
• Parties: AIRY et al. v. THOMPSON et al.
• Court: Oklahoma Supreme Court

6 P.2d 445

154 Okla. 1, 1931 OK 770

AIRY et al. v. THOMPSON et al.

No. 22401.

Supreme Court of Oklahoma

December 22, 1931

Syllabus by the Court.

1. Section 9745, C. O. S. 1921, as amended by Laws 1929, c. 282 § 2, governs the sale of real estate acquired by a county at a resale, and with reference to the notice of sale provides that: "Said notice of publication shall be given by the Treasurer in the official County Paper or some paper designated by the Board of County Commissioners and shall embrace a description of the property, the price and to whom proposed to be sold and stating that he will on a given date * * * apply to the Board of County Commissioners for its approval. * * *" Held, that a sale made to any one whose name is not embraced in such notice is void.

2. A resident taxpayer, although he shows no special private interest, may invoke the interposition of a court of equity to cancel and set aside a deed void for want of notice, made in pursuance of a sale of real estate under section 9745, C O. S. 1921, as amended by Laws 1929, c. 282, § 2, which deed if not canceled and set aside, will result in loss to said county of such real estate to his detriment in common with other taxpayers.

3. "All persons dealing with officers or agents of counties are bound to ascertain the limits of their authority or power as fixed by the statutory or organic law and are chargeable with knowledge of such limits. No estoppel can be created by the acts of such agent or officers in excess of their statutory or constitutional powers." 15 C.J. 541; In re Town of Afton, 43 Okl. 720, 144 P. 184, L. R. A 1915D, 978.

4. A former judgment cannot be relied upon in support of a plea of res adjudicata unless the former suit in which the judgment was rendered was between the same parties or their privies.

5. Section 9751, C. O. S. 1921, which provides that in a suit to set aside a tax deed and to recover the land, or to resist the recovery of possession by the holder of the deed, the person attacking the tax deed shall "tender in open court for the use of the holder of the tax deed, all taxes, penalties, interests and costs, which the party seeking to redeem would be bound to pay if he was then redeeming the land from tax sale, and on failure so to do, his action or defense, as the case may be, shall be dismissed," has no application to a suit to set aside a void county deed to land which had been theretofore purchased by it at a resale tax sale.

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

Action by Jackson Thompson and others against Mrs. P. G. Airy and the Board of County Commissioners of McIntosh County. Judgment for the plaintiffs, and the defendants appeal.

Affirmed.

KORNEGAY, J., dissenting.

Milam M. King, Co. Atty., of Eufaula, and C. A. Ambrister, of Muskogee, for plaintiffs in error.

Claude A. Niles and Charles R. Freeman, both of Checotah, for defendants in error.

McNEILL J.

This is an action in equity brought in the district court of McIntosh county by plaintiffs, as taxpayers of said county, against Mrs. P. G. Airy, to cancel a certain deed issued to her by the chairman of the board of county commissioners of said county. The parties will be referred to as they appeared in the trial court. Plaintiffs attack the procedure of the board of county commissioners of said county in its attempt to sell certain property of said county under section 9745, C. O. S. 1921, as amended by Laws 1929, c. 282, § 2, and charge that said board attempted to dispose of said property, which belonged to said county, in a way different from that provided by law, in that when the board sold the same to said Mrs. Airy no notice was given, as required by law, and that the board also failed to comply with the statutes in regard to such sale. Plaintiffs also allege that the bid of said defendant, to wit, the sum of $562, being the consideration paid by said defendant for said deed, is grossly inadequate, and that plaintiffs and others are willing and able to increase said bid by a substantial amount.

The defendant Mrs. P. G. Airy filed an answer by way of general denial, and further alleged that plaintiffs had no beneficial interest in the property in controversy, and had no right either legally or equitably to maintain said cause of action. For further answer said defendant alleged that she purchased the premises in question for a good and valuable consideration, being the highest and best bidder therefor, and that she paid therefor the sum in excess of what any person present offered for said property; that the amount so paid was received and placed to the credit of McIntosh county, and that said county, having accepted the same, is estopped to deny the validity of said deed. Said defendant made further allegations in said answer in reference to two causes of action instituted in said district court wherein said defendant, Mrs. Airy, recover judgment therein, decreeing title in her to the premises in question, and that by reason thereof said judgments have become final and conclusive, and that the issues involved herein have become res adjudicata.

The defendant board of county commissioners filed a similar answer.

From the record, it appears that the board of county commissioners acquired its title to the property involved herein by virtue of a resale tax deed from the state of Oklahoma, by the county treasurer of said county, which deed was dated May 2, 1930. The deed of defendant Mrs. Airy is dated May 21, 1930. On the 12th day of May, 1930, E. F. Saltsman made a bid to the county treasurer of said county and offered to purchase from said county the premises in question. This bid was advertised in the Indian Journal at Eufaula, Okl., a weekly newspaper of said county, on Thursday, May 15, 1930, for the hearing of said bid on the 19th day of May, 1930. On the day of said hearing the commissioners refused to accept the bid of said Saltsman and accepted the bid of Mrs. P. G. Airy, and thereafter caused to be executed a deed to said Mrs. Airy. The bid of Mrs. Airy was never advertised. The facts are not in controversy.

The trial court found that said deed was void and of no force and effect for the reason that said property was not sold in compliance with the statutes in regard to the sale of property purchased by the county at resale tax sales; that the plaintiffs were proper parties to institute the action that the question of res adjudicata did not apply; that McIntosh county and any one claiming under it although having accepted the purchase price of said property, was not estopped from denying that said deed was void, without tendering the purchase price of said property; that it was not necessary for the maintenance of said action that a tender of the purchase price should be made at or prior to the institution of the suit, and ordered the deed canceled, set aside, and held for naught....