Cunningham v. Webber
| Decision Date | 05 March 1935 |
| Docket Number | Case Number: 22612 |
| Citation | 1935 OK 199,42 P.2d 244,171 Okla. 211 |
| Parties | CUNNINGHAM v. WEBBER et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Taxation - Limitation of Actions to Set Aside Resale Tax Deed.
"Under the provisions of section 6, chap. 158, S. L. 1923 (12756, O. S. 1931), twelve months after a resale tax deed shall have been filed for record in the office of the county clerk, no action shall be commenced to void or set aside said deed, except as to infants, idiots, and insane persons or other persons under legal disability, who shall have one year after the removal of such disability in which to redeem said real estate." Swan v. Kuehner, 157 Okla. 37, 10 P.2d 707.
2. Same - Resale Tax Deeds Void on Their Face and Those Valid on Their Face Distinguished.
"There is a material distinction between resale tax deeds which are void upon their face and resale tax deeds which are valid upon their face, and that distinction must be noted in applying the statutes of limitation of Oklahoma." Swan v. Kuehner, 157 Okla. 37, 10 P.2d 707.
3. Same - Limitation Statute not Applicable to Resale Tax Deed Void on Face.
The statute of limitation of Oklahoma with reference to resale tax deeds relates to instruments which appear on their face to have been executed in conformity with the procedure prescribed for the issuance of resale tax deeds, and, unless the instrument appears upon its face to have been executed in conformity with the procedure prescribed for the issuance thereof, it is not a resale tax deed and shows to be void on its face.
4. Same.
In order for the resale tax deed to be subject to attack after the one-year period, it must be void on its face, or void for want of power and authority in the county treasurer to execute and deliver the same.
5. Same - Tender of Amount Required to Redeem Unnecessary in Action to Cancel Void Tax Deed.
"It is not necessary, in order to maintain an action to cancel a void tax deed, that the taxes, interest, penalties, and costs required to redeem the land from tax sale be paid or tendered." Campbell v. McGrath et al., 117 Okla. 126, 245 P. 634.
6. Same - Resale Tax Deed Containing Requisite Statutory Recitals Valid on Its Face.
"Resale tax deed containing requisite statutory recitals is valid on its face, and, in absence of showing sufficient to rebut presumption in favor of deed, it will not be set aside (St. 1931, secs. 12756, 12760, 12762)." Winters et al. v. Birch, 169 Okla. 237, 36 P.2d 907.
7. Same - Resale Tax Deed Failing to Show Date of Tax Sale or Resale Held Void on Its Face.
Where the recitals in a resale tax deed fail to show the date or year of the original tax sale upon which the resale was based, or the date or year in which the resale was held, such resale tax deed does not contain the requisite statutory recitals and such failure is not overcome by the general recitals, stating "and whereas, in pursuance of the statute in such case made and provided, the treasurer of said county advertised said real estate for resale to the highest bidder for cash for four consecutive weeks next preceding such resale in the Daily Legal News, a newspaper published in said county, and on the day advertised for such sale, to wit: on Monday, the 24th day of November, 19§§, at the county treasurer's office, * * *" and the resale tax deed is void on its face for failure of the requisite statutory recitals therein.
8. Same - Nullity of Tax Deed Based on Tax Sale at Time not Authorized by Statute.
"A sale of land for delinquent taxes at a time not authorized by statute is void, and a tax deed based thereon is a nullity." Perry v. Snyder et al., 75 Okla. 24, 181 P. 147.
9. Same - Invalidity of Tax Deed not Showing Upon Its Face Amount for Which Land Sold.
"The tax deed which does not show upon its face the amount for which the lot or tract of land is sold, is, for that reason, void." Elerick et al. v. Reed, 113 Okla. 195, 240 P. 1045.
10. Same - Statutory Notice of Intention to Apply for Tax Deed Mandatory.
If the requisite notice of the expiration of the time allowed for redemption and intention to apply for a tax deed, as required by section 9749, C. O. S. 1921 (12759, O. S. 1931), is not given as required, such failure will not be cured by the statute.
Appeal from District Court, Oklahoma County; Tom G. Chambers, Judge.
Action by J.C. Webber et al. against S.N. Cunningham to cancel tax deeds and quiet title. Judgment for plaintiffs, and defendant appeals. Affirmed.
Roscoe Bell, for plaintiff in error.
Abernathy & Howell, for defendants in error.
¶1 This action was instituted by J.C. Webber, one of the defendants in error, as plaintiff, against the plaintiff in error, as defendant, for the purpose of canceling a certificate tax deed and a resale tax deed held by the defendant and issued against lots 37 and 38, block 6, Floral Hill addition to Oklahoma City, Okla., alleged to be the property of the plaintiff. W.A. Wise and R.C. Warren were later made parties plaintiff.
¶2 It is alleged in the petition of the plaintiff that the deeds are void upon their face for the several reasons stated therein and are clouds against his title.
¶3 The defendant filed his answer denying, among other things, that the certificate tax deed or the resale tax deed is void on the face thereof, or in any other manner. The defendant, further answering, alleged that the deeds attacked by the plaintiffs in their petition had been of record for more than two years and that the plaintiffs' cause of action is barred by the statute of limitations.
¶4 The trial court found in favor of the plaintiffs and adjudged the tax deeds held by the defendant to be void and canceled them as a cloud upon the title of the plaintiffs.
¶5 This action having been instituted by the alleged owners of the land to cancel tax deeds, including a resale tax deed, their right of action was barred as to each of the deeds within one year after the recording thereof (sec. 12763, O. S. 1931 [sec. 9753, C. O. S. 1921]; Michie v. Haas, 134 Okla. 57, 272 P. 883), unless the deeds are void, in which event the one-year statute will not apply. Campbell v. McGrath, 117 Okla. 126, 245 P. 634; Gulager v. Coon, 93 Okla. 62, 218 P. 701.
¶6 In order for the resale tax deed to be subject to attack after the one-year period, it must be void on its face, or void for want of power and authority in the county treasurer to execute and deliver the resale tax deed. The irregularities in failing to comply with the provisions of section 12745, O. S. 1931 (sec. 9735, C. O. S. 1921), and other defects held to be available in the case of Lind v. Stubblefield, 138 Okla. 280, 282 P. 365, which pertained to a certificate tax deed, are not available to the plaintiffs here attacking the resale tax deed, when it was placed of record more than one year prior to the bringing of this action. Massey v. Tucker, 141 Okla. 193, 284 P. 648; Swan v. Knehner, 157 Okla. 37, 10 P.2d 707. The invalidity of the resale tax deed, if such exists, must therefore be determined upon the two propositions of being void on its face or void for want of power and jurisdiction in the county treasurer to execute and deliver the resale tax deed.
¶7 This court has held that a resale tax deed is void on its face when it does not show that the property was sold at a time authorized by the statute, and that such a deed is a nullity. Sires v. Parriott et al., 106 Okla. 244, 233 P. 748; Sharum v. Foster, 109 Okla. 218, 235 P. 489.
¶8 In Sitton v. Hernstadt, 106 Okla. 140, 233 P. 676, this court held:
"A resale tax deed which shows upon its face that the notice provided in section 9744, Comp. Stats. 1921, was published for less than four consecutive weeks before the date of such resale is void."
¶9 In Jackson v. Turner, 107 Okla. 167, 231 P. 290, this court held:
"A statute requiring the publication of a delinquent tax sale notice once a week for four consecutive weeks means 28 days, and a sale of real estate by a county treasurer for delinqnent taxes, where notice of such sale has been given for a period less than 28 days prior to such sale, is void, and a tax deed to land so sold is void."
¶10 Considering further the resale tax deed, we find that deed was executed January 28, 1922, and filed for record on April 27, 1922. The petition in this case was filed in the lower court on March 26, 1930, not within the one-year period.
¶11 The resale tax deed contains the recital:
"Whereas, the real estate hereinafter described was listed and assessed for taxes in Oklahoma county, state of Oklahoma, and such taxes afterwards became due and delinquent for nonpayment, and such real estate was thereafter advertised for sale by the treasurer of said county, on the first Monday of November, 1918 and 1919 to pay said delinquent taxes, and for want of bidders at said sale the treasurer of said county bid off and purchased said real estate in the name of said county for the amount of taxes, penalties, interest, and costs due and delinquent thereon, and made a note of such bid and purchase upon his sales record in his office, and such real estate has never been redeemed from such sale, and no person has offered to purchase said real estate for the amount of the taxes, penalties, interest and costs due thereon."
¶12 That part of the same deed pertaining to the resale of the property contained the recital:
"And, whereas, in pursuance of the statute in such cases made and provided, the treasurer of said county advertised said real estate for resale to the highest bidder for cash for four consecutive weeks next preceding such resale in the Daily Legal News, a newspaper published in said county, and on the day advertised for such resale, to wit: On Monday, the 24th day of November, 19§§, at the county treasurer's office in the courthouse at Oklahoma City, Okla., where the taxes by law are required to be paid, and between the hour of one and four o'clock p. m., of that day, said county treasurer offered said...
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