Dunlap v. Mayer

• Decision Date: 23 June 1959
• Docket Number: No. 38128,38128
• Citation: 341 P.2d 258,1959 OK 125
• Parties: Homer H. DUNLAP and Helen R. Dunlap, Plaintiffs in Error, v. Julla Fisher MAYER, Mary Margaret Ray, John Mayer and Elizabeth Ann Sullivan, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 258

341 P.2d 258

1959 OK 125

Homer H. DUNLAP and Helen R. Dunlap, Plaintiffs in Error, v. Julla Fisher MAYER, Mary Margaret Ray, John Mayer and Elizabeth Ann Sullivan, Defendants in Error.

No. 38128.

Supreme Court of Oklahoma.

June 23, 1959.

Syllabus by the Court

A valid resale tax deed divests former owners of all their right, title and interest in the land, and vests in the purchaser an absolute and perfect title in fee simple. The term 'former owners', as used in this connection, includes not only the former owners of record but also includes all persons claiming an interest in the property by prescription, and claims based upon prior occupancy are extinguished by the resale tax deed and cannot ripen into title by limitations by virtue of continued occupancy for less than fifteen years after date of resale tax deed.

Appeal from the District Court of Oklahoma County; Glen O. Morris, Judge.

Action by Homer H. Dunlap and wife against Julia Fisher Mayer and others to quiet title to real estate. Judgment for defendants and plaintiffs appeal. Affirmed.

F. M. Bookstore, Oklahoma City, for plaintiffs in error.

Eugene P. Ledbetter, Jr., Oklahoma City, for defendants in error.

BLACKBIRD, Justice.

This appeal involves a controversy over the ownership of land lying in the North Canadian river bottom, in Oklahoma City. It is described as Lots 1, 2, and 3, Block 9 of the Patrick-Pottenger Addition to the said City, but no lots, blocks and streets have ever actually been laid out, or marked off, thereon; and it has always looked like, and been used as, a rural tract.

Plaintiffs in error and defendants in error will hereinafter be referred to as plaintiffs and defendants, respectively, as they appeared in the trial court.

For many years, the three lots in question have been included in the same fenced enclosure with a much larger tract consisting of numerous lots in the same addition that one Homer H. Dunlap, Sr., father of the plaintiff, acquired by quitclaim deed executed in December, 1932, by one J. D. Edmiston and his wife. Edmiston and his wife obtained their title through a quitclaim deed previously executed and delivered to Edmiston by Fred T. Hotze and his wife, M. V. Hotze, in July of the same year. Neither of said quitclaim deeds contained any specific reference to, or description of, the lots involved in this action, but, after listing numerous other lots in the same addition by lot and block numbers, both deeds set forth the following recital: '* * * the parties of the first part are quitclaiming all their interest of what so ever nature in the entire Pattrick Pottenger Addition to Oklahoma City, Oklahoma.'

During the period between the above mentioned date of December, 1932, and the elder Dunlap's death in February, 1935, the father leased the lots in question, along with lots specifically described in said deed, to one Blevins for agicultural purposes; and, since the father's death, his plaintiff son has continued the practice of leasing such lots together as one tract.

When taxes became delinquent on the three lots, they were sold to the county, and, in 1944, resold at tax resale to John Mayer, father of, and predecessor in title to, the defendants. Thereafter, the elder Mayer, in December, 1947, instituted an action docketed as the District Court's Cause No. 116979, in which he obtained a judgment in March, 1948, quieting his title to the lots in question (on the basis of his resale deed), and to some others in the same addition. Purported individuals referred to as 'M. V. Holtze' and 'Fred T. Holtze' were made parties to this action and included in the service by publication, but no appearance was entered or pleading filed on their behalf. Since the hereinbefore mentioned deeds from the Hotzes to Edmiston and from the Edmistons to Homer Dunlap, contained no description of the lots in question by lot and block number, no reference was made to them in the deed indexes and records of the County Clerk's office pertaining to these lots. Consequently, it is not surprising that the grantees named in neither of said deeds were made parties to said quiet title action.

In 1954, plaintiffs instituted a quiet title action as to a large number of lots they allegedly owned in the Patrick-Pottenger Addition, including the three involved here. Later, in 1957, plaintiffs' cause of action, in so far as it involved these three lots was, by court order (consented to by the parties) separated from the original action and docketed under a different number and style. This latter action is the one out of which this appeal arose.

At the trial of this cause, the title plaintiffs attempted to establish was what they refer to as a 'prescriptive' one. Their theory was that they, and their predecessor in title, had been in exclusive, adverse possession of the lots more than fifteen years next preceding the filing of the action. The writing which they relied upon to furnish them the 'color of title' for prescription was the hereinbefore quoted recital in the deed from the Hotzes to Edmiston and from Edmiston to their predecessor, tending...