Davis v. Fariss

• Decision Date: 13 April 1937
• Docket Number: Case Number: 25418
• Citation: 68 P.2d 417,180 Okla. 125,1937 OK 246
• Parties: DAVIS v. FARISS
• Court: Oklahoma Supreme Court

1937 OK 246

68 P.2d 417

180 Okla. 125

DAVIS v. FARISS

Case Number: 25418

Supreme Court of Oklahoma

Decided: April 13, 1937

Syllabus

¶0 1. TAXATION - Resale Tax Deed not Void Because Issued Before Close of General County Resale.

A resale tax deed is not rendered void because issued before the treasurer has finished public sale of all other tracts of land advertised for sale during the same general county resale which is continued from day to day until all tracts are resold.

2. SAME - Sufficiency of Notice of Tax Resale.

A notice of tax resale of lands for delinquent taxes in substantial compliance with the statutory requirements is sufficient to support a resale tax deed otherwise valid.

3. SAME - Sale not Invalidated by Failure to File Return of Tax Sale With County Clerk.

The failure of the county treasurer to file return of delinquent tax sale with the county clerk does not necessarily invalidate the sale.

4. SAME - Deed Covering Several Tracts Sold on Different Days of Resale not Void on Its Face for Failure to Recite Sale Date.

A resale tax deed covering several tracts of land sold on different days of the continuing general county resale which deed recites the several sale dates of the various tracts is not void on its face for failure to recite the sale date.

5. SAME - Validity of Deed Executed on Prescribed Form.

A resale tax deed properly executed in 1929, pursuant to a resale held in 1929, which is on a form prescribed by the State Examiner and Inspector as provided in section 12756, O. S. 1931 (section 6, c. 158, S. L. 1923), is valid on its face.

6. SAME - Deed not Void on Its Face for Mere Failure to Recite Land Was Legally Liable for Taxation.

A resale tax deed otherwise sufficient is not void on its face merely because it fails to expressly recite that the land was legally liable for taxation.

7. SAME - Conclusion That Several Tracts Were Sold to County in Lump Sum not Justified by Reference in Deed to Tax Sale Certificate.

Reference in the resale tax deed to a tax sale certificate does not justify the conclusion that several tracts of land were sold to county in lumps-sum sale at original tax sale.

Appeal from District Court, Oklahoma County; V.E. Stinchcomb, Special Judge.

Action by J.C. Davis against E.A. Fariss. Judgment for defendant, and plaintiff appeals. Affirmed.

William J. Crowe and Twyford & Smith, for plaintiff in error.

Willingham & Fariss, for defendant in error.

WELCH, J.

¶1 This is an appeal from a judgment of the district court of Oklahoma county holding valid a resale tax deed.

¶2 The plaintiff, J.C. Davis, claims to own lots 25 and 26, in block 20, of Walnut Grove addition to Oklahoma City by virtue of conveyances from former owners. The defendant, E.A. Fariss, and others claim under a resale tax deed executed on June 17, 1929, and recorded on June 20, 1929. The others were joined with Fariss as parties defendant in the trial court, but were eliminated prior to judgment. Only the claims of Davis and Fariss are before us for adjudication.

¶3 In support of his asserted title under the resale tax deed the defendant, Fariss, invokes the short statute of limitations contained in section 12756, O. S. 1931, which provides:

"* * * Twelve months after said deed shall have been filed for record in the county clerk's office no action shall be commenced to void or set aside said deed. * * *"

¶4 The property herein was vacant at the time the deed was recorded in June of 1929. It thereafter remained vacant and was not in the actual possession of either party for more than one year subsequent to the recording of the questioned instrument.

¶5 On the 23rd day of March, 1931, the plaintiff entered into possession of the premises through a tenant. This action to quiet title and avoid the tax deed was then commenced on the 31st day of March, 1931, by the plaintiff, then in possession, against the adverse claimants under the resale tax deed, who were out of possession.

¶6 The trial court held, in effect, that the resale tax deed was valid on its face and was not shown to be void in fact by reason of any jurisdictional defect, land was wholly valid after the running of the statute of limitations as shown by the facts above stated.

¶7 This court has heretofore held that the above-quoted twelve-month limitation statute does not apply when jurisdictional defects or lack of power in the treasurer to proceed are shown to exist. See paragraph I of the syllabus in Lind v. Stubblefield, 138 Okla. 280, 282 P. 365, and paragraphs 6 and 7 of the syllabus in Swan v. Knehner, 157 Okla. 37, 10 P.2d 707.

¶8 Where the deed was valid on its face and attacked for alleged irregularity in procedure only, such attack was held barred by this twelve-month statute in Treese v. Ferguson, 120 Okla. 235, 251 P. 91, and in Michie v. Haas, 134 Okla. 57, 272 P. 883, and Wolfe v. Brooke, 133 Okla. 128, 271 P. 669, and Coday v. Allison, 136 Okla. 8, 275 P. 1060.

¶9 Our former decisions illustrate that when the land was in fact not taxable, or when the taxes had in fact been paid, there was lack of jurisdiction to proceed, and that a jurisdictional defect might occur upon complete failure to take some essential step. But they illustrate, further, that irregularities in procedure only do not go to the jurisdiction of the county treasurer to act, or present jurisdictional defects in the preliminary procedure or issuance of the tax deed. See, also, section 9750, C. O. S. 1921 (section 12760, O. S. 1931).

¶10 Plaintiff asserts the tax deed is void because of its alleged premature issuance. Upon that point the fact is that the treasurer executed this deed after the land involved had been sold at the resale, but before the treasurer had sold all of the other tracts of land which he had advertised to be sold. That is, after this deed had been executed, the treasurer continued for some days to sell other separate tracts before finally completing sale of all tracts then ready for resale. We are referred to section 12756, O. S. 1931 (enacted in 1923), which was the statute under which this deed was executed, and to section 12751, O. S. 1931, which authorizes redemption by the original owner at any time before the land is conveyed by deed of the county treasurer to the purchaser. The plaintiff contends for a construction of those statutes so as to support this contention that the deed is void, but cites no decision of this court so construing those statutes. This court held to the contrary in Reeves v. Caldwell, decided March 2, 1937, 179 Okla. 501, 66 P.2d 75.

¶11 The taxpayer's period of redemption runs for two years from the original tax sale, and for such additional time then as intervenes prior to the issuance of the deed. That was made plain in our opinion in Michie v. Haas, supra.

¶12 The plaintiff asserts the deed here involved is void because the resale notice was defective. The notice appears in full in the record.

¶13 Plaintiff construes it to be a notice that at the resale the treasurer will sell the numerous tracts of land therein described, in some part at least, for subsequent taxes not authorized by the statute. We do not understand that it is contended that it was the purpose of the county treasurer to advertise for resale any lands not theretofore legally sold to the county for delinquent taxes. Nor is it shown or...