Frazier v. Prince

• Decision Date: 11 March 1899
• Citation: 58 P. 751,8 Okla. 253,1899 OK 47
• Parties: N. F. FRAZIER v. EDWARD PRINCE
• Court: Oklahoma Supreme Court

1899 OK 47

58 P. 751

8 Okla. 253

N. F. FRAZIER v. EDWARD PRINCE

Supreme Court of Oklahoma

Decided: March 11, 1899

SYLLABUS

¶0 1. TAXATION--Assessment--Sale of Lots--Void, When. Section 5618, Statutes of Oklahoma, 1893, which provides that, "On or before the first Monday of May, annually, the several county or township assessors shall make and deliver to the county clerk an assessment roll consisting of the following items, to-wit: A list of all taxable lands in such county, etc., * * with the number of acres in each tract set opposite the same in the column provided for that purpose, and the assessed value thereof in another column, with the columns of acres and values footed up; also stating the number of school and road districts in which such property and the owners thereof is situated." And "A list of the town lots in each town or city in each county, in like numerical order, with the valuation of each lot or part of lot, and the name of the person listing the same opposite, with the column of values footed up," etc., is mandatory in so far as it provides for the listing and valuing of each lot separately, and is not merely directory; and where three lots, lying contiguous in a city are listed separately but all valued together, such listing and valuation do not constitute a legal assessment and a sale of such lots, under such an assessment, is absolutely void.

2. TAX WARRANT--Tax Deed--Void, When. It is the duty of the county clerk to attach his warrant to the tax list, directing the treasurer to collect the taxes contained therein, as provided by sec. 5631, of the Statutes of Oklahoma, 1893; and a sale of real estate by the county treasurer, without having previously received the warrant of the clerk directing the collection of the taxes for which said real estate was sold, is without authority of law, and the tax deed for such real estate issued to the purchaser thereof, by the treasurer, is absolutely void.

Error from the District Court of Canadian County; before John C. Tarsney, District Judge.

W. H. Criley, for plaintiff in error.

Dille & Blake and E. E. Blake, for defendant in error.

BURWELL, J.:

¶1 The first question that we will consider in this case is as to whether or not it is necessary to separately list and assess each town lot in a town or city, or may they, when lying contiguous and owned by the same party, be assessed together under one valuation, which includes them all?

¶2 Lots numbered 9, 10 and 11, in block numbered 94, in the city of El Reno, were sold for the taxes of 1893, to the plaintiff herein. There is no contention between the parties to this suit over the manner of assessing these lots for that year. The three lots were also listed separately but assessed together for the subsequent years of 1894, 1895, 1896 and 1897. The plaintiff paid all of the taxes against these lots for each of these years and secured from the county treasurer, a tax deed therefor. He then brought a suit for possession, based upon the tax deed. Issues were joined and a trial had. Judgment was rendered in favor of the defendant, from which judgment the plaintiff appealed to this court.

¶3 The record shows that these three lots were owned by the same party; that they lie contiguous and were assessed in the name of Anne Gillett as the owner thereof; that she occupied all of them for a home for herself and family at all the times above named. Under many of the authorities, in fact, under the great weight of authority, this would be sufficient to authorize the assessment of all of the lots together, but these decisions are, as a rule, based upon statutes which only require that each tract be listed and valued separately. The courts hold that several lots belonging to the same person lying contiguous and occupied as a home constitute but one tract, and that such statutes do not require that each lot be assessed separately. Our statutes though, provide that each lot shall be listed and assessed separately. Therefore, the decisions holding that town lots lying contiguous and owned by the same person, may be assessed together are inapplicable in this case.

¶4 Section 5618, Statutes of Oklahoma, 1893, provides, that:

"On or before the first Monday of May annually, the several county or township assessors shall make out and deliver to the county clerk, an assessment roll, consisting of the following items, to-wit: A list of all taxable lands in such county, in numerical order, beginning with the lowest numbered section in the lowest numbered township, in the lowest numbered range in the county, and ending in the highest numbered section, township and range, with the number of acres in each tract set opposite the same in the column provided for that purpose, and the assessed value thereof in another column with the columns of acres and values footed up; also stating the number of the school and road districts in which such property and the owners thereof is situated. A list of the town lots in each town or city in each county, in like numerical order, with the valuation of each lot or part of lot and the name of the person listing the same opposite, with the column of values footed up," etc.

¶5 From this section of the statutes it will be seen that the lots must be listed separately with the valuation of each lot, or part of lot, and the name of the person listing the same opposite with the column of value footed up. The law is plain, and there can be no doubt about the intent of the legislature; but is this statute mandatory or only directory?

¶6 Mr. Black, in his work on tax titles, says, sections 101, 102 and 103:

"In regard to the assessment of real property, the statutes ordinarily give minute and specific directions. And these are for the most part mandatory. The reason is to be found in the anxious regard of the law for the protection of the taxpayer, and its desire to guard against any secret or unwarranted confiscation of his property. For the title to real estate is often involved with numerous conflicting claims, or embarrassed with liens or encumbrances of various kinds and different orders of priority. Hence, there may be several persons claiming or interested in the same parcel of land, and the privilege of paying the taxes, for the protection of his individual rights, may belong to either, or to each in turn. Or the default of one person may pass a duty upon another. It is necessary therefore, to so frame the laws that every person concerned shall be informed, with reasonable certainty, of the amount of the taxes and of their delinquency, and thus be afforded an opportunity to save his interest from forfeiture or the jeopardy of a tax sale. Hence, it is not the usual custom to assess the individual tax payer a sum in gross, based upon the value of all the real estate which he may own or be interested in, but to lay the assessments upon the owner in respect to each separate lot or tract of land, in order that the delinquency may be more easily ascertained and the land may be proceeded against in an action quasi in rem, thus affording notice to all parties concerned.

"One of the requirements of law which is especially designed for the protection of tax payers, which is imperative, and which is practically universal, is that each separate and distinct parcel of land shall be separately valued and assessed. Hence the assessment of a joint tax on two parcels of land, belonging to different owners, based on a joint valuation thereof, creates no lien for the whole, or any part of such tax; and no apportionments of the tax will create a lien, unless made as a formal reassessment of the separate parcel, and based on a separate valuation thereof, with a corresponding change in the assessor's list. And a failure to observe this requirement is not cured by a statute which provides that assessments for taxation shall be valid 'notwithstanding any omission, defect or irregularity in the proceedings.' And when two different persons own distinct parcels of the same lot in severalty, it cannot properly be assessed to them as joint owners. * * A fair construction of the statutes seems to require that each lot should be valued and assessed separately, when assessed as lands the owners of which are unknown. Again, where the two parcels are owned by the same person, the statutes generally require a separate assessment, and this direction is imperative. The reason is thus stated by the court in Maine: 'The owner had a right to redeem each of these lots by paying the taxes specifically assessed thereon, without being obliged to pay the tax assessed upon the other lot also, which constituted no lien upon the lots he might wish to redeem. The assessment and valuation of both lots in gross, if upheld, would deprive the owner of this right by compelling him to pay the taxes assessed upon both lots, or forfeit his right to relieve either from the lien imposed by the tax upon it. The law does not contemplate, nor will it sanction the aggregation of the several separate and distinct estates owned by a non-resident proprietor into one valuation and assessment. Embarrassing questions sometimes arise in determining what is to be regarded as a separate parcel for the purpose of assessment. * * The lots into which town or city blocks are subdivided, are generally regarded as separate and distinct tracts or parcels of land, as much so as separate and distinct, though adjoining, farms or surveys in the country, and each lot should be separately assessed. But in California, it is held that blocks of land in a city may be assessed by blocks, when assessed to the same owner even if they have been sub-divided into lots. And if two town lots are used and occupied as one lot, the buildings thereon being partly on each, they may be sold for taxes together as one lot, and their use and nature determine that they are to be so regarded." etc.

¶7 American & English Enc. Law, volume 25, p. 204: "Subject to constitutional restrictions, it is...