Hawkins v. Stewart
| Decision Date | 27 March 1934 |
| Docket Number | Case Number: 21682 |
| Citation | 1934 OK 193,31 P.2d 126,167 Okla. 566 |
| Parties | HAWKINS v. STEWART. |
| Court | Oklahoma Supreme Court |
¶0 Taxation--Ejectment Action by Holder of Resale Tax Deed With no Affirmative Relief Asked by Defendant--After Adjudging Deed Void Court Held Without Power to Impress Land With Lien to Reimburse Plaintiff for Taxes Paid.
In an ejectment action in which plaintiff bases his title on a deed from the chairman of the board of county commissioners conveying to him certain land acquired by the county at tax resale, and in which action the defendant asks no affirmative relief, the court, upon adjudging plaintiff's deed to be void, is without statutory authority or equitable power to impress the land with a lien in favor of plaintiff for the amount of taxes levied against the same, and to order the same sold at sheriff's sale for the satisfaction of the lien, as under execution.
Appeal from District Court, Wagoner County; W. J. Crump, Judge.
Ejectment by Charles R. Stewart against Peter Hawkins basing title upon resale tax deed. Judgment denying plaintiff's title and holding plaintiff's deed void, and further judgment impressing the land with lien in favor of plaintiff for taxes found to have been levied against same. Defendant appeals from that part of the judgment impressing lien upon the land. Reversed and remanded, with directions.
Watts & Broaddus, for plaintiff in error.
Malcolm E. Rosser, for defendant in error.
¶1 Plaintiff in error was defendant in the trial court, and defendant in error was plaintiff below. The parties will be referred to as plaintiff and defendant, as they appeared in the trial court.
¶2 Plaintiff brought this suit in the district court of Wagoner county, in ejectment, and bases his title to the 40 acres of land involved on a deed from the chairman of the board of county commissioners of Wagoner county, purporting to convey to plaintiff the title acquired by the county by tax sale and tax resale. The defendant, by his answer, defends upon the theory that the tax resale and plaintiff's deed were void for the reason that two noncontiguous tracts of land were sold together for a lump sum; that the notice of resale stated that a different person than the owner was the owner of the land; that the land was not taxable for some of the years for which it was sold, and that the treasurer failed to make any return of the resale proceedings. Although the defendant asked for affirmative relief in his original answer, he was permitted by the court to withdraw his request for affirmative relief and stand upon his request and prayer that plaintiff be denied any relief whatever. No complaint is here made of the court's action in this regard. The case was tried to the court and resulted in a judgment denying plaintiff's prayer for possession of the land, and declaring plaintiff's deed to be void. However, the trial court found that plaintiff was entitled to a lien on the land for a named sum recited as being the taxes assessed against the land in question and the penalties thereon for certain named years. Further judgment was accordingly rendered decreeing plaintiff to have such a lien, and adjudging, and directing that, unless such sum with interest was paid to plaintiff in 60 days, the land involved should be sold by the sheriff of the county in the same manner as sales of real estate under execution to satisfy said lien.
¶3 Defendant has appealed to this court complaining of the order of the court wherein a lien was declared on the land in favor of the plaintiff and the land ordered sold at sheriff's sale in satisfaction of same.
¶4 No complaint is made of the judgment of the trial court holding plaintiff's resale tax deed void. The plaintiff did except to that portion of the court's judgment, and gave notice of appeal, but filed no motion for new trial and made no further effort to perfect his appeal, and filed no cross-petition in error. And, as we view it, the only question necessary for a determination of this controversy is whether or not the trial court erred in declaring a lien upon the real estate in favor of plaintiff and against the defendant for an amount which the court found to be equal to the taxes assessed against the land, with penalties, and ordering the land sold in satisfaction of said lien. The defendant contends that there is no provision in the law of this state which gives to a purchaser of county land which it bought at tax resale a lien for the purchase price he has paid to the county, or for the taxes assessed against the land, with a right to a sale of the land as under execution to satisfy his lien; and that without such statutory provision a court of equity is without authority to declare such lien and order sale as under execution to satisfy the lien, in cases where the party against whose interest the lien operates asked no affirmative relief of the court. We are inclined to agree with this contention. The exact question has not been determined by this court, but we observe persuasive authority of other states. In McCormick v. Edwards, 69 Tex. 106, 6 S.W. 32, the Supreme Court of Texas used the following language:
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Cherry v. Crown Hill Cemetery Trust
... ... Perry v. Snyder, supra; Callander v. Brickner, 97 ... Okl. 37, 222 P. 531; Hawkins v. Stewart, 167 Okl ... 566, 31 P.2d 126; Johnson v. High, 193 Okl. 105, 141 ... P.2d 583) ... Where ... land liable to a ... ...
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Schulte v. Herndon, Case Number: 26555
...The cases of Perry v. Snyder (1919) 75 Okla. 24, 181 P. 147; Callender v. Brickner (1924) 97 Okla. 37, 222 P. 531, and Hawkins v. Stewart (1934) 167 Okla. 566, 31 P.2d 126, in so far as they announce a rule contrary to syllabus No. 1, are hereby overruled. 3. SAME--APPEAL AND ERROR--Remand ......
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Schulte v. Herndon
...supra, carry out the letter and spirit of the statute, while the cases of Perry v. Snyder, supra, Callander v. Brickner, supra, and Hawkins v. Stewart, supra, are in plain of the statute and should be, and they are hereby, overruled insofar as they are in conflict with this opinion. The ten......
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Brown v. Clark
... ... asked no affirmative relief and had contented himself with ... merely defending against the tax deeds and quitclaim, the ... case of Hawkins v. Stewart, 167 Okl ... [74 P.2d 933] ... 566, 31 ... P.2d 126, would apply. In that case, however, it is pointed ... out ... ...