Brown v. Massey

• Decision Date: 20 September 1907
• Parties: BROWN et al. v. MASSEY.
• Court: Oklahoma Supreme Court

92 P. 246

19 Okla. 482, 1907 OK 139

BROWN et al. v. MASSEY.

Supreme Court of Oklahoma

September 20, 1907

Rehearing Denied October 12, 1907.

Syllabus by the Court.

Where in an answer to a petition, the defendant makes allegations proper in his answer, which alleges facts upon which affirmative relief may be based, and such affirmative relief is prayed for by such answer, the same will be treated by the court as a cross-petition, regardless of what name the pleader may apply to it.

[Ed Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, § 299.]

Where a petition is filed by the plaintiff, and the defendant by his answer, in addition to the general denial, pleads facts which would warrant the granting of affirmative relief, and after filing such answer, and before a reply is filed, the plaintiff by leave of court dismisses his action, the defendant will be allowed to pursue his remedy for affirmative relief as set up in his answer, and on a motion for judgment on the pleadings for the reason that the allegations of the answer asking for affirmative relief are undenied, the court should either sustain the motion, or rule the plaintiff to file a reply to the affirmative part of the answer so that the issue may be raised and tried by the court. A failure or refusal to do either is error, for which the case will be reversed.

Error from District Court, Logan County; before Justice Jno. H Burford.

Action by Mary Massey against Nellie Brown and others to quite title. Plaintiff by leave of court having dismissed defendants filed a motion for judgment on their answer and cross-petition, which was denied, and defendants bring error. Reversed, with directions.

This is the second time this case has been before this court. The record of the previous trial will be found reported in 13 Okl. 670, 76 P. 226. The original petition filed by Mary Massey alleged that she was the owner and in possession of lots 7 and 8, in block 61, in that subdivision of the city of Guthrie known as "Capitol Hill" and that the defendants Nellie Brown and D. G. Tutt claimed an interest or estate in said property, but that such estate was inferior to the title of the plaintiff, and by said petition she asks that her title be quieted. Service by publication was had, and a judgment by default rendered against Brown and Tutt. Within the time limited by statute, the defendants Brown and Tutt, and L. N. Beadles filed an application to open the judgment and be allowed to plead, alleging that Brown and Tutt had sold their interest in the property to Beadles. The answer accompanying said motion for leave to plead was as follows:

"In the District Court of Logan County, Oklahoma Territory.

"Mary Massey, Plaintiff, v. Nellie Brown and D. G. Tutt, Defendants, and L. N. Beadles, as Successor in Interest to Defendants, Defendant. Case No. 3,443.

"Answer to Petition of Plaintiff.

"Comes now the defendants and L. N. Beadles, successor in interest to defendants, permission of the court having been first obtained, and file this their joint answer to the petition of the plaintiff in this cause, and as matters of defense thereto charge and allege facts as follows, to wit:

"(1) These defendants and their successor in interest in and to the real estate involved in this action deny each and every material allegation of fact and conclusion of law contained in said petition, except those that may be hereinafter especially admitted.

"(2) The defendants Nellie Brown, D. G. Tutt, and L. N. Beadles admit that they have, hold, and claim an adverse interest to plaintiff in lots Nos. seven (7) and eight (8) in block numbered sixty-one (61) in that subdivision of the city of Guthrie, Logan county, Okl. T., known as 'Capitol Hill.'

"(3) That defendants Nellie Brown and D. G. Tutt, at the time of the commencement of this action, and at the time of the issuance of the tax deed hereinafter referred to, and for a long time prior thereto, and at all times up to the date of filing the petition in this cause, were the absolute owners of the fee-simple title to the above-described real estate, and were during the whole period of said time in the actual possession of said real property, and remained undisturbed in their said possession.

"(4) That thereafter, on, to wit, the 14th and 15th days of May, A. D. 1902, these defendants, for a valuable consideration, sold and conveyed all of their said title to said real property to defendant L. N. Beadles.

"(5) That on, to wit, the 7th day of September, A. D. 1894, the county treasurer of Logan county, without authority of law, pretended to sell at tax sale the real estate involved in this action for the alleged nonpayment of taxes for the year A. D. 1893, at which time these defendants were the owners and in possession of said real estate, and said county treasurer did on said date make certificates of purchase to said property included to the county of Logan, Okl. T. And thereafter said county treasurer, without any authority of law, on, to wit, the 10th day of May, 1898, pretended to resell said property for the sum of $15.85, the amount of taxes, charges, penalties, and costs alleged to be due, and for which sum said property, together with other property described in said deed, was bid in by the county treasurer aforesaid, in the year A. D. 1894, aforesaid, for the further sum of money alleged to be subsequent taxes accrued and due thereon. While said property was held by the county of Logan under the sale aforesaid, the sum of $_____. And said treasurer did on the 10th day of May, A. D. 1898, again sell or pretended to sell said real estate with other real estate described in the deed to one S. S. Lawrence for the alleged sum of $52 cash, and did on the 13th day of May, 1898, execute and deliver to said S. S. Lawrence a tax deed for said real property herein described, together with other property described in said deed. And said tax deed was by the said S. S. Lawrence placed on record on said last-mentioned date. A certified copy of said tax deed is hereto attached and made a part of this answer.

"(6) That thereafter said S. S. Lawrence attempted to convey said property by deed to the plaintiff in this action, Mary Massey, and upon which several pretended and illegal conveyances she brings this suit, and bases her claim to title to the real property herein described.

"(7) That said tax deed upon which the claim of plaintiff is based was placed on record in Logan County, Okl. T., on the said 13th day of May, A. D. 1898, and during the whole of the intervening time between the recording of this deed and the filing of this action by plaintiff, on, to wit, the 28th day of January, A. D. 1902, these defendants were in possession of said real estate, and neither the purchaser at said pretended tax sale or his assigns, the plaintiff herein, ever at any time brought suit for possession or otherwise took possession of said real estate, by reason of which this action is barred by the statutes of limitation of the Territory of Oklahoma, and said tax deed by operation of said statute became null and void.

"(8) That said tax deed upon which plaintiff herein claims title is void upon its face for the following, among other reasons: Said tax deed recited only three (3) certificates of purchase were issued by the treasurer of Logan county at said pretended sale for the following described property alleged to have been sold to said county, to wit: For lots Nos. three (3) and four (4) in block 53 and lots seven (7) and eight (8) in block No. sixty-one (61), in the subdivision of the city of Guthrie known as 'Capitol Hill'; and because said tax deed did not affirmatively show upon its face that said lots described therein were separately sold and does not show for what sum said several lots separately sold for, and because said deed shows upon its face that said lots were collectively sold for the gross sum of $15.85, the amount of taxes due thereon, and because said deed does not recite that said lots were prior to the sale thereof legally advertised for sale for the period of time required by law; and because said deed does not recite that said property has been separately assessed and charged or extended as required by law; and because said tax deed shows upon its face that said property was sold for nonpayment of taxes subsequent to the pretended sale to the county of Logan on the 7th day of September, 1894, and prior to the alleged resale in 1898, during which period said property was not taxable, and said sale therefore is contrary to law, that said tax deed and all proceedings prior to the issuance thereof are void for the following reasons: Because said property was sold for the nonpayment of the following illegal taxes levied, assessed, charged, and extended for the year 1893, to wit, the following illegal levy: 'For county general purpose, including two (2) mills for the support of the poor, and contingent expenses, six mills on the dollar valuation. For county road and bridge purposes, five (5) mills on the dollar valuation. For separate schools, one (1) mill on the dollar valuation'-all of which levies of taxes for said year A. D. 1893 are illegal and void, and for the nonpayment of said illegal taxes said property was sold, and for the reason that county clerk never certified said taxes down to the treasurer of Logan county with his warrant to collect the same for the said year, A. D. 1893.

"(9) That the defendants have tendered to plaintiff all taxes, penalties, interests, costs, and charges due and accrued on said lots described in said tax deed, but she fails and refuses to accept the same, and defendants now tender into court for the use and benefit of said plaintiff for said taxes, interest, penalties,

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