Appeal from the District Court of Logan County; before Jno. H. Burford, District Judge.
¶0 1. DEMURRER--General, Overruled, When. A general demurrer to the whole of a petition which contains several statements of causes of action, should be overruled if any of the statements of causes of action contained in said petition are good.
2. RECITALS IN TAX DEED--Evidence. It is not competent for a tax deed holder to introduce evidence to contradict the recitals of his tax deed.
3. TAX DEED--Form of. The statutory form of a tax deed is for voluntary purchasers, and where such a deed is based upon a sale to the county, it must be modified so as to show the conditions upon which the county can lawfully become a purchaser. A tax deed which recites a sale to the county as a competitive bidder, is void upon its face.
STATEMENT OF THE CASE.
This is an action brought by the defendant in error against the plaintiff in error in the district court of the first judicial district, in the county of Logan and Territory of Oklahoma, for the recovery of certain real estate described in her certain petition, filed in said court February 3, 1898, which petition is in words and figures as follows, to-wit:
"In the district court, first judicial district, Territory of Oklahoma, in and for Logan county.
"Nellie M. Hamil, plaintiff, v. D. V. Hanenkratt, defendant.
PETITION.
"The above named plaintiff, Nellie M. Hamil, for cause of action against the above named defendant, D. V. Hanenkratt, states; that said plaintiff is and was on the 23rd day of November, 1897, and prior thereto, the owner in fee simple of the following described real property situated in Logan county, Oklahoma Territory, to-wit: Lot number (23) twenty-three, in block number fifty-five (55) in the city of Guthrie, and in that part of said city commonly known as Guthrie proper, same being part and parcel of the east one half of section eight in township sixteen, north of range two west of the Indian Meridian. That said defendant now is, and ever since the 23rd day of November, 1897, has been, wrongfully in possession of said real property, and to the exclusion of plaintiff. That said defendant is so in possession of said property and claiming to be the owner thereof adversely to this plaintiff, under and by virtue of a certain written instrument purporting to have been executed by Ferdinand Ritterbusch as treasurer of said county, on behalf of said Territory of Oklahoma, and purporting to convey said property unto the said defendant. That a true and certified copy of said written instrument together with all endorsements thereon is hereto attached and made a part hereof, and marked exhibit 'A.' That said instrument purports to be a tax deed. That said instrument is illegal and void, and of no effect, and conveys unto said defendant no right, title or interest in or to said property. That said deed is void for that said property was never advertised for sale for taxes, as in said deed recited. That the pretended published notice of sale under which said property was offered for sale, contained no description of said property. That said pretended published notice of sale does not state the property advertised for sale is in either the city of Guthrie, or in Logan county, or in the Territory of Oklahoma. That the amount of taxes, if any, due on said lot at the time of publication of said pretended notice is not stated therein or thereby. That said written instrument is void on its face and of no legal effect and conveys no right, title or interest in or to said property to the said defendant in that: said written instrument recites that said property was sold 'at the door of the court house in said county;' said instrument does not recite that said property was offered for sale and sold at the treasurer's office. Said instrument recites that said property was sold to the county of Logan at public auction and fails to recite that there were as said sale no other bidders for said property, and does not recite that said property was bid in by the treasurer of said county or any person authorized so to do or qualified to make such purchase. That said instrument is recorded in the office of the register of deeds of said county in book 1, on page 43, and is a cloud upon the title of this plaintiff.
"That heretofore, on, to-wit: the 20th day of December, 1897, plaintiff, by and through her lawfully and duly authorized agent tendered to said defendant the sum of one hundred and sixty-five dollars ($ 165.00) in good and lawful money of the United States, and demanded of said defendant that said defendant quitclaim said property to plaintiff. That said sum so tendered is the full and total amount of all taxes, penalties, fees, costs, interest and charges chargeable against said property by defendant paid out and expended on that account and interest thereon, together with a certain sum claimed to have been paid out and expended by defendant in repairs on said property and improvements. That said defendant then and there refused to accept said money and to execute said deed. That at all times since plaintiff has been ready and willing to pay said sum and now offers to pay same, or such sum as the court shall determine to be the true and just amount into the court for the use and benefit of defendant on such account.
"Second cause of action.
"That plaintiff is and was on the 23rd day of November, 1897, and prior thereto, the owner in fee simple and entitled to the possession of the following described real property situated in Logan county, Oklahoma Territory, to-wit:
"Lot number 23 in block number fifty-five (55) in the city of Guthrie, and in that part of said city commonly known as Guthrie proper, same being part and parcel of the east one half of section eight in township sixteen north of range two west of the Indian Meridian.
"That said defendant is now, and ever since the 23rd day of November, 1897, has been wrongfully and unlawfully in possession of same to the exclusion of this plaintiff and without consent of plaintiff.
"That said real property with the improvements thereon is of the reasonable value of twenty dollars per month. That by reason of said defendants said wrongful and unlawful possession plaintiff has been damaged in a great sum to-wit, the sum of $ 500.
"Wherefore plaintiff asks that it be adjudged and decreed by the court that said written instrument purporting to convey title to said property to said defendant is null and void and of no legal effect; that the same be cancelled of record; that defendant be estopped from claiming or asserting any right, title or interest in or to said property, thereunder, and that plaintiff's title in and to said property be forever quieted as against any and all claims of defendant therein or thereto.
"Plaintiff also asks judgment against defendant for possession of said property and the sum of five hundred dollars ($ 500.00) as damages for the use of said property for costs of this action, and all other proper relief.
"Signed, H. S. CUNNINGHAM and FRED ELKIN, Attorneys for plaintiff."
To which petition the defendant on the 28th of February, 1898, filed a demurrer, which demurrer is in words and figures as follows:
"In the district court of Logan county, Oklahoma Territory.
"Nellie M. Hamil, plaintiff, v. D. V. Hanenkratt, defendant.
DEMURRER.
"Comes now said defendant and demurs to the petition filed in the above cause for that the same does not state facts sufficient to constitute a cause of action in favor of said plaintiff, and against said defendant.
"D. V. HANENKRATT.
"H. M. ADAMS, his attorney."
Endorsed on back as follows: 2493, Hamil v. Hanenkratt.
DEMURRER.
"Filed February 28th, 1898.
"LOUIS E. PITTS, Clerk dist. court.
"H. M. ADAMS."
Which demurrer was on the 6th day of April, 1898, by the court overruled, to which ruling of the court the defendant excepted.
Afterwards, to-wit, on the 12th day of September, 1898, the defendant filed his answer, which is in words and figures as follows:
"Territory of Oklahoma, Logan county. In the district court.
"Nellie M. Hamil, Plaintiff, v. D. V. Hanenkratt.
ANSWER.
"Comes now the defendant and answering the petition herein says:
"1. That he denies each and every one of the material allegations in the petition contained, except as hereinafter expressly admitted.
"2. For a second defense to the second cause of action, that on the 27th day of October, 1890, lot twenty three in block fifty-five, in that division of the city of Guthrie, known as Guthrie proper was conveyed by townsite board number six to John C. Wicks, and on that day became and was liable for taxation.
"3. That the proper authorities of Logan county, Oklahoma Territory, duly and according to law assessed said lot for taxation for the year 1894, and taxes were duly and legally levied on and assessed against said lot to the amount of $ 39.73 for said year, and said lot was in law liable for said taxes.
"4. That said taxes were not paid, and became in arrear and delinquent and the proper officer of Logan county, to-wit, the treasurer of said county of Logan, duly advertised said lot for sale, to pay said taxes, in the manner and for the time required by law; to-wit, by advertising said lot for sale once a week for three consecutive weeks, commencing the first week in August, preceding the date of the said sale, in the official newspaper in Logan county, which said notice contained a statement that said lot 23 in block 55, Guthrie proper, and all other lands on which the taxes for the said year 1894 remained unpaid, would be sold to pay the same, together with the time and plaec of making said sale, and a list of the lands to be sold, and the amount of the taxes due
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