Farmers Nat. Bank of Okla. City v. Gillis

• Decision Date: 15 March 1932
• Docket Number: Case Number: 21850
• Citation: 155 Okla. 290,1932 OK 208,9 P.2d 47
• Parties: FARMERS NAT. BANK OF OKLAHOMA CITY et al. v. GILLIS.
• Court: Oklahoma Supreme Court

1932 OK 208

9 P.2d 47

155 Okla. 290

FARMERS NAT. BANK OF OKLAHOMA CITY et al. v. GILLIS.

Case Number: 21850

Supreme Court of Oklahoma

Decided: March 15, 1932

Syllabus

¶0 1. Adverse Possession--Burden of Proof to Establish Title.

The party relying on a title by adverse possession has the burden of proving all the facts necessary to establish such a title. Adverse possession is to be taken strictly, and every presumption is in favor of a possession in subordination to the rightful owner. Title by adverse possession, therefore, must be established by clear and positive proof. It cannot be made out by inference. All of its constituent elements must be established. Thus, it is necessary to prove an actual, open, notorious, exclusive, and hostile possession for the full statutory period.

2. Taxation--Statutes Relating to Tax Sales Mandatory.

In matters pertaining to tax sales, statutes prescribing the manner of service of notice and the issuance of tax deeds thereunder are mandatory and not directory.

3. Same--Tax Deed Void Where Certificate Holder Fails to Serve Notice of Intention to Apply for Deed.

An action to set aside a tax deed for failure of the certificate holder to serve notice of his intention to apply for a tax deed, as required by section 9749, C. O. S. 1921, is not within section 9753 of the same statute, prescribing a one-year statute of limitations; the omission complained of being a jurisdictional defect and rendering the tax deed void for want of authority to issue the same.

4. Judgment--Essentials of Res Judicata.

In order to make a matter res adjudicata, there must be a concurrence of the four conditions following, namely: (1) Identity in the thing sued for (or subject-matter of the suit); (2) identity of the cause of action; (3) identity of persons or parties to the action; (4) identity of the quality in the persons for or against whom the claim is made.

5. Adverse Possession -- Taxation -- Evidence Held to Show no Prescriptive Title in Defendants, and That Tax Deed Was Void.

Record examined, and held, to show no prescriptive title to the real estate; that the tax deed relied upon is void, and that the claim of the plaintiff is not barred by the statutes of limitation.

Appeal from District Court, Oklahoma County; T. G. Chambers, Judge.

Action by John P. Gillis against the Farmers National Bank of Oklahoma City and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Cheek & McRill, for plaintiffs in error.

Tom G. Haile and Edwards & Robinson, for defendant in error.

ANDREWS, J.

¶1 This is an appeal from a judgment of the district court of Oklahoma county in favor of the defendant in error, the plaintiff in that court, against the plaintiffs in error, the defendants in that court. Hereinafter the parties will be referred to as plaintiff and defendants.

¶2 The plaintiff, in his petition, deraigned his title to the real estate in controversy. He therein alleged ownership of the property; the right to the immediate possession thereof; that the title thereto is claimed by the defendants by reason of a tax deed issued to Mrs. C. Morrison and a quitclaim deed from her to E. M. Page; that the tax deed is void for certain assigned reasons, among which is that of want of sufficient notice of the delinquent tax sale and want of proper notice of the intention to demand a tax deed, and that the tax deed and quitclaim deed are clouds upon the title of the plaintiff. The defendants, in their answer, admitted that they claimed ownership of the property by virtue of the tax deed; denied the other allegations of the petition; pleaded open and notorious possession adverse to the plaintiff, culminating in a title by prescription by virtue of subdivision 3, section 183, and sections 8552, 8554, and 9753, C. O. S. 1921, and res adjudicata.

¶3 Prescriptive title is based upon occupancy of the property to which the title is asserted.

"In accordance with the familiar rule that the burden of proof rests upon him who has the affirmative of an issue, the party relying on a title by adverse possession has the burden of proving all the facts necessary to establish such a title. Adverse possession is to be taken strictly, and every presumption is in favor of a possession in subordination to the rightful owner. Title by adverse possession, therefore, must be established by clear and positive proof. It cannot be made out by inference. All of its constituent elements must be established. Thus, it is necessary to prove an actual, open, notorious, exclusive, and hostile possession for the full statutory period." 1 R. C. L., p. 695, sec. 9; Flesher v. Callahan, 32 Okla. 283, 122 P. 489; Vernor v. Poorman, 59 Okla. 105, 158 P. 615, and Stolfa v. Gaines, 140 Okla. 292, 283 P. 563.

¶4 The evidence in this case, as disclosed by the record, does not show a prescriptive title under the rule stated.

¶5 The plaintiff contends that the tax deed is void for failure to give the notice required by section 9749, C. O. S. 1921. This court has frequently held that section to be mandatory. See Dawson v. Anderson, 38 Okla. 167, 132 P. 666; Union Savings Ass'n v. Cummins, 78 Okla. 265, 190 P. 869; Hutchins v. Richardson, 100 Okla. 80, 227 P. 432; and Smith v. Bostaph, 103 Okla. 258, 229 P. 1039. The record shows that the required notice was not given.

¶6 In Campbell v. McGrath, 117 Okla. 126, 245 P. 634, this court held:

"Section 9753, C. S. 1921, providing that an action to avoid a tax deed shall be commenced within one year after the recording of such deed, has no application to an action to avoid a void tax deed.

"It is not necessary, in order to maintain an action to cancel a void

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