Callander v. Brickner

• Decision Date: 15 January 1924
• Docket Number: Case Number: 12432
• Citation: Callander v. Brickner, 97 Okla. 37, 222 P. 531, 1924 OK 14 (Okla. 1924)
• Parties: CALLANDER v. BRICKNER et al.
• Court: Oklahoma Supreme Court

1924 OK 14

222 P. 531

97 Okla. 37

CALLANDER v. BRICKNER et al.

Case Number: 12432

Supreme Court of Oklahoma

Decided: January 15, 1924

Syllabus

¶0 1. Taxation--Tax Deed--Action to Enforce Barred by Statutory Limitation.

Where plaintiff relied on a deed from the county treasurer, the premises having been sold for taxes, purchased by the county, and acquired by plaintiff at a resale by the county, section 7419, Rev. Laws 1910, providing that "no action shall be commenced by the holder of the tax deed * * * to recover possession of the land which has been sold and conveyed for nonpayment of taxes, unless such action shall be commenced within one year after the recording of said deed," is applicable. Held, an action brought on May 26, 1920, to establish title based on a deed executed and recorded on June 15, 1918, falls within the bar of the statute.

2. Appeal and Error--Questions of Fact--Conclusiveness of Findings--Action to Establish Tax Title.

Where plaintiff relies on a conveyance executed by the county treasurer covering premises sold for taxes, purchased by the county, and resold to plaintiff, and plaintiff alleges ownership and possession, it devolves upon plaintiff to establish such possession, and where the fact of such possession is in dispute a general finding of the trial court in favor of defendant cannot be disturbed unless such general finding is clearly contrary to the weight of the evidence.

3. Same.

Record examined and held, that general finding of trial court is not against the clear weight of the evidence.

4. Taxation--Action to Establish Tax Title--Limitations--Tender of Taxes by Defendant.

Under sections 7417 and 7419, Rev. Laws 1910, where defendant seeks no affirmative relief and plaintiff fails by reason of the weakness of his case, and no superior equities are asserted by the defendant, defendant is not required to tender in open court all taxes, penalties, and costs before making a defense.

Commissioners' Opinion, Division No. 2.

Error from District Court, Logan County; C. C. Smith, Judge.

Action by J. A. Callander against John T. Brickner and Nellie Brickner. Judgment for defendants. Plaintiff appeals. Affirmed.

Fred W. Green, for plaintiff in error.

H. M. Adams, for defendants in error.

LYONS, C.

¶1 The parties will be referred to as in the court below. On May 26, 1920, the plaintiff filed his petition in which he alleges that he is the legal owner in fee simple, and in the actual and peaceable possession of the premises in controversy by virtue of certain tax proceedings; that the property was sold for taxes, as provided by law, to Logan county, Okla., at the November, 1913, tax sale; that said county took out sale certificates to itself covering said property, and at a resale for taxes on the 4th day of June, 1917, offered the property for sale to the highest bidder for cash, not less than the total amount of delinquent taxes and assessments at that time accrued against the property. That at such resale Logan county became the purchaser of said property and that the county treasurer of Logan county executed a deed to Logan county, which was recorded on August 25, 1917; that thereafter, at a resale had on the 15th day of May, 1916, Logan county sold said property to J. A. Callander, and that the county treasurer, on the 15th day of June, 1919, delivered to plaintiff a deed to said property which, on the 15th day of June, 1918, was recorded in the office of the county clerk of Logan county.

¶2 It will be observed that the plaintiff relies on his deed executed by the county treasurer on the 15th day of June, 1918, and that said deed was recorded on the 15th day of June, 1918, and that this suit was brought on May 26, 1920, more than one year subsequent to the recordation of the deed. The lower court rendered judgment against the plaintiff and in favor of the defendants, and made a general finding of all of the issues against the plaintiff and in favor of the defendants.

¶3 The testimony on the question of possession was conflicting and the judgment of the trial court could well be sustained on the theory that plaintiff did not prove a sufficient possession to authorize his recovery. It is also apparent that the action was not brought within one year from the recordation of the deed. The plaintiff says that this statute is not applicable because this was not an action to recover possession of land, but an action to quiet title. This contention is no longer open in this jurisdiction. This court, in the case of Clark v. Duncanson, 79 Okla. 180, 192 P. 806, lays down the controlling rule:

"Under section 7419, Rev. Laws 1910, providing that 'no action shall be commenced by the holder the tax deed or the former owner * * * to recover possession of the land which has been sold and conveyed for nonpayment of taxes, or to avoid such deed, unless such action shall be commenced within one year after the recording of such deed,' neither party can successfully maintain against a plea of such statute of limitation, an action not commenced within one year after the recording of the tax deed.

"Section 7419, Rev. Laws 1910, contemplates that if either the former owner or the tax deed purchaser desires to

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