Blanchard v. Reed
| Decision Date | 23 January 1917 |
| Docket Number | 7118. |
| Citation | 168 P. 664,67 Okla. 137,1917 OK 108 |
| Parties | BLANCHARD v. REED et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied, Nov. 20, 1917.
Syllabus by the Court.
A tax deed which does not show upon its face the amount for which each tract or parcel of land which it purports to convey was sold is for that reason void.
In an action in the nature of an action in ejectment, the plaintiff may recover without having all the title, either legal or equitable, or without having a title paramount to all others. It is only necessary that he have some kind of an estate in the property in controversy, either legal or equitable, and that this interest shall be paramount to any right to the same possessed by the defendant, although the legal title to the property may be outstanding in some third person.
Commissioners' Opinion, Division No. 4. Error from District Court, Alfalfa County; James B. Cullison, Judge.
Action by Milton G. Reed against Effie D. Witte, J. L. Blanchard and P.J. Loewen. Judgment for plaintiff, and defendant Blanchard brings error. Affirmed.
Titus & Talbot, of Cherokee, for plaintiff in error.
Geo. W Partridge and W. E. Wiles, both of Cherokee, for defendants in error.
This was an action in ejectment and to quiet title instituted by Milton G. Reed, in the district court of Alfalfa county against Effie D. Witte, P.J. Loewen, and J. L. Blanchard. The parties will be referred to as plaintiff and defendant according to their position in the lower court.
The plaintiff alleges that he is the legal and equitable owner and in the peaceable possession of the said real estate, and further alleges that the defendant Loewen claims title by virtue of a tax title, and that the said Blanchard claims an interest by reason of a conveyance from said Loewen under said tax title, and that the defendant Effie D. Witte claims some interest by reason of a quitclaim deed from J. F. Witte; that the said tax title is wholly void, and that the said Effie D. Witte has no right or interest in said real estate.
The defendant Effie D. Witte filed a disclaimer, and defendant P.J. Loewen made default. The defendant J. L. Blanchard filed a general denial and a cross-petition setting up his interest under the tax title and conveyance from P.J. Loewen, and alleging that one year had elapsed since the recording of the tax deed, and that the cause of action alleged by plaintiff is barred by the statute of limitations, and prays that he be adjudged to have the sole right in fee simple of said real estate.
The plaintiff, by way of reply, alleges the invalidity of the tax proceedings, and, further, that the grantor of the said Blanchard had not been in the possession of said real estate within one year after the recording of the tax deed.
The record discloses that plaintiff, the owner of the real estate involved, in 1910, entered into an oral contract with J. F. Witte, the son-in-law of plaintiff, by which he sold said real estate to Witte with the oral understanding that in case said Witte did not pay for same it was to be turned back to plaintiff, and that plaintiff would deliver back to the said Witte the notes given as evidence of the purchase price, and that the contract would be thereby rescinded. The deed made by plaintiff to Witte was by the said Witte placed in the bank and never placed of record. Witte went into the possession of said real estate and resided there until February, 1914, when he removed therefrom and from the state of Oklahoma, but left upon said premises certain items of personal property. The notes given in evidence of the purchase price at that time were past due and unpaid. Soon thereafter it appears that the defendant Blanchard by agent, had intruded upon said real estate and taken possession thereof, and had possession at the time of the trial.
In 1912 J. F. Witte conveyed the said real estate to his wife, Effie D. Witte, and said deed was recorded in the year 1913. Subsequent to the filing of this action, and after she had filed her disclaimer therein, said Effie D. Witte executed a quitclaim deed to said real estate to the plaintiff herein.
The taxes for the year 1909 not having been paid, the treasurer of Alfalfa county, in 1910, sold said real estate for taxes and executed separate tax sale certificates for the six lots involved to P.J. Loewen, said certificates being identical in form and substance except the description of the real estate described in each respectively. In 1913 a tax deed issued to said P.J. Loewen based upon said certificates. At the conclusion of plaintiff's evidence, defendant rested and demurred to plaintiff's evidence, which was overruled and judgment rendered for plaintiff. The defendant Blanchard appeals.
The contention of the plaintiff is that the sale of the property to J. F. Witte was conditional and executory; that the property not having been paid for the said Witte was the tenant in possession, and that the delivery back of the notes to Witte, and the delivery back of the deed by Witte to plaintiff was a complete rescission of the said contract vesting the equitable title in the plaintiff, and that the subsequent delivery of the quit-claim deed by Effie D. Witte was merely for the purpose of clearing the record title of the apparent interest of Effie D. Witte from the conveyance of J. F. Witte to her, and that the plaintiff had sufficient title to maintain the action.
The contention of the defendant is that the execution and delivery of the deed by plaintiff to J. F. Witte was a completed transaction and conveyed to the said Witte all the right and title of the plaintiff, and that no title could reinvest in plaintiff except by conveyance from the Wittes, and that plaintiff was not the legal nor equitable owner of the real estate involved at the time of filing his suit, and for that reason could not maintain the action.
To begin with, the tax deed under which the defendant claims is wholly void for several reasons, one only of which it will be necessary to mention. That is the tax deed covers six lots sold separately, with different certificates of purchase issued for each of them. The deed does not show on its face the price for which each lot sold, which defect renders the deed void. Keller v. Hawk, 19 Okl. 407, 91 P. 778; Eldridge v. Robertson, 19 Okl. 165, 92 P. 156; Kramer v. Smith, 23 Okl. 381, 100 P. 532.
The tax deed being void, the recording of the...
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