Clark v. Duncanson

• Decision Date: 07 September 1920
• Docket Number: 9736.
• Citation: 192 P. 806,79 Okla. 180,1920 OK 289
• Parties: CLARK v. DUNCANSON.
• Court: Oklahoma Supreme Court

192 P. 806

79 Okla. 180, 1920 OK 289

CLARK v. DUNCANSON.

No. 9736.

Supreme Court of Oklahoma

September 7, 1920

Syllabus by the Court.

The provisions of the act of the Legislature approved March 22 1911 (Session Laws 1910-11, p. 263), declaring that it shall be the duty of the county treasurer on or before November 1st, to notify by mail, postage prepaid, each taxpayer whose name appears on his record of the amount of his taxes, and when the same will become due and delinquent, is mandatory and the absence of such notice nullifies the sale of the taxpayer's land for taxes and penalty.

The plaintiff in an acti on to quiet title to land must allege and prove that he is the owner of either the legal title or the complete equitable title. Unless plaintiff has the title it is immaterial to him what title defendant claims.

Under section 7419, Rev. Laws 1910, providing that "no action shall be commenced by the holder of 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 litigate the validity of the tax deed, and one or the other of them commences an action, either to recover possession of the land or to quiet title, and in such action the plaintiff's petition clearly tenders to the defendant the validity of the tax deed as the issue in the case, and such suit is commenced within one year from the recording of the tax deed, the statute of limitation stops running against all defenses which may be interposed by the defendant.

Statutes of limitations apply generally to actions and not defenses. Held, that where the plaintiff is in possession claiming title under a tax deed, and commences an action against the former owner within 12 months after the recording of his tax deed, to quiet title, the former owner may challenge the validity of the tax deed by answer filed more than 12 months after the tax deed was recorded.

Plaintiff commenced an action within 12 months from the recording of his tax deed, to quiet title; he made the former owner a party defendant; the defendant after the expiration of 12 months from the recording of the tax deed filed an answer entitling the same "Answer and Cross-Petition," in which he assailed on several grounds the validity of the tax sale and tax deed, and prayed judgment against the plaintiff for possession and damages. Held, that the so-called cross-petition is a counterclaim, within the meaning of section 4746, Rev. Laws 1910, and within the clause therein declaring that a "counterclaim shall not be barred by the statute of limitations until the claim of the plaintiff is so barred."

Additional Syllabus by Editorial Staff.

"Subject of the action," as used in Code Civ. Proc., Rev. Laws 1910, § 4746, giving defendant a right to counterclaim if the affirmative relief asked be against plaintiff and connected with the subject of the action, is plaintiff's principal primary right to enforce or maintain his action or controversy.

Error from District Court, Pawnee County; Conn Linn, Judge.

Action to quiet title by E. M. Clark against John C. Duncanson. Judgment for defendant, and plaintiff appeals. Affirmed.

Plaintiff in error, as plaintiff below, commen ced this action on November 3, 1915, against defendant in error, defendant below, to quiet his title to 80 acres of land, and alleges that he is the owner of the legal and equitable title to the land described; that he is, and had been for more than a year prior thereto, in the quiet and peaceful possession of the 80 acres involved "under and by virtue of a certain tax deed," a copy of which is attached as Exhibit A. Plaintiff also alleges that the defendant claims some estate or interest in the land adverse to the plaintiff under a certain real estate mortgage, the exact nature of which is unknown to him, but is known to defendant, but that the mortgage under which defendant claims is not a valid lien by reason of the foreclosure proceedings, etc. Plaintiff prays that he be adjudged the absolute owner in fee of the legal and equitable title to the land, and that defendant be forever barred and enjoined from setting up or making any claim to any title, right, interest, or estate in said land, and that his (plaintiff's) title be quieted against the defendant's claims. Plaintiff's tax deed was executed by the county treasurer on February 18, 1915, and recorded February 19, 1915. It will thus be seen that plaintiff commenced his action in about 9 months after the registration of his tax deed. The record does not show when service of process was obtained upon defendant, nor when he filed any pleadings other than his answer and cross-petition filed on September 6, 1916, more than one year after the registration of plaintiff's tax deed. Defendant in his answer and cross-petition pleads a general denial and avers that he is the owner of the 80 acres covered by the tax deed, as purchaser at a mortgage foreclosure sale made May 25, 1910. Defendant also assails the validity of the tax deed upon several grounds, one of which is this: That the county treasurer did not notify defendant by mail, postage prepaid, of the amount of his taxes, and when the same would become due and delinquent, as required by the Act of the Legislature approved March 22, 1911 (Session Laws of 1910-11, page 263), and that the sale is void because the treasurer added 18 per cent. penalty, and sold the land for the taxes, plus the penalty.

Clark & Armstrong, of Pawnee, for plaintiff in error.

Thurman S. Hurst and Redmond S. Cole, both of Pawnee, for defendant in error.

RAMSEY, J. (after stating the facts as above).

We will dispose of the points argued in inverse order:

1. The 80 acres were sold on November 4, 1912, for the 1911 taxes, plus "penalty, interest, and costs, due and unpaid thereon and delinquent on said real estate," as recited in the tax deed itself. The county treasurer bid the land in for $12.47, and certificate of purchase was issued, bearing that date, which plaintiff subsequently acquired, and on which he obtained his tax deed. The provision in the act of the Legislature approved March 22, 1911 (Session Laws of 1910-11, p. 263), d eclaring that it shall be the duty of the county treasurer, on or before November 1st, to notify by mail, postage prepaid, each taxpayer whose name appears on his record of the amount of his taxes, and when the same will become due and delinquent, is mandatory, and the absence of such notice nullifies the sale of the taxpayer's land for taxes and penalty. The sale of a tract of land for a legal tax, plus an illegal penalty, is no foundation for a tax deed, and upon a showing of such facts a tax deed issued on such sale will be canceled and set aside. Williams v. McGill, 169 P. 1074; Cooley on Taxation (3d Ed.) vol. 2, pp. 954 and 958; Miller v. State, 173 P. 67; Trimmer v. State ex rel. Rennie, 43 Okl. 152, 141 P. 784; State ex rel. v. Baker, 43 Okl. 646, 143 P. 668; City National Bank v. Gayle, 55 Okl. 301, 155 P. 552. The notice required by said act of March 22, 1911, was not given. Defendant claims the tax deed is void on its face, but we pass over that question without discussion or decision, and for the purpose of this case we assume, without deciding, that it is not void on its face.

2. Plaintiff filed a reply to defendant's answer and cross-petition, setting up the statute of limitations of one year contained in section 7419, R. L. 1910, and contends that, inasmuch as defendant did not file his answer and cross-petition until after the expiration of one year from the recording of the tax deed, the cause of action set up in his cross-petition is barred by said statute of limitations. Plaintiff contends that the cross-petition is in effect the commencement of a new suit, and, not having been commenced within one year from the registration of the tax deed, it is barred, although set up as a defense to plaintiff's action to establish title under his tax deed, commenced within about 9 months after the tax deed was recorded. Defendant contends that his answer and cross-petition constitute a counterclaim, and under section 4746, R. L 1910, is not barred by the statute of limitations until the plaintiff's claim is likewise barred. Under section 4927 R. L. 1910, as amended by the act of the Legislature approved January 25, 1911 (Session Laws of 1910-11, p. 25), the plaintiff commenced this action for the purpose of determining the "adverse estate or interest" defendant had in the land. Plaintiff alleges in his petition that he is the owner of the legal and equitable title, and bases his claim of title on the tax deed exhibited with his petition. Plaintiff therefore bases his right to a judgment on two things, to wit: (a) Possession; and (b) title under the tax deed. He therefore presented to the defendant the clear-cut issue as to whether or not he (plaintiff) obtained title under the tax deed. Unless plaintiff has title, he has no title to quiet. In an action to quiet title, the plaintiff must allege and prove that he is the owner of either the legal title or the complete equitable title. Whether the defendant has any tiWhetle is immaterial to the plaintiff unless the plaintiff has title. Plaintiff must recover on the strength of his own title, and not on the want of title in the defendant. 17 Ency. P. & Pr. pp. 326 to 331; Mason et al. v. Gates, 82 Ark. 294, 102 S.W. 190...