Holt v. Spicer

• Decision Date: 05 December 1916
• Docket Number: 7710.
• Citation: 162 P. 686,65 Okla. 17,1916 OK 1005
• Parties: HOLT v. SPICER.
• Court: Oklahoma Supreme Court

162 P. 686

65 Okla. 17, 1916 OK 1005

HOLT v. SPICER.

No. 7710.

Supreme Court of Oklahoma

December 5, 1916

Rehearing Denied Jan. 30, 1917.

Syllabus by the Court.

A tax sale of land made at a time other than that provided by law is void.

A tax deed void upon its face cannot be aided by the statute of limitations.

An action to cancel a void tax deed may be maintained by a landowner without payment or tender of the taxes, interest penalties, and costs otherwise required to redeem the land from tax sale.

Commissioners' Opinion, Division No. 3. Error from District Court, Mayes County; Preston S. Davis, Judge.

Action by F. C. Holt against Elijah F. Spicer. Judgment for defendant, and plaintiff brings error. Affirmed.

Geo. S Ramsey, Edgar A. de Meules, Malcolm E. Rosser, and Sol H Kauffman, all of Muskogee, for plaintiff in error.

Neff & Neff and Fred S. Zick, all of Muskogee, for defendant in error.

BLEAKMORE C.

On November 5, 1914, F. C. Holt filed his petition in this action alleging that he was the owner and in possession of 80 acres of land, by virtue of a tax deed of date September 4 1912, seeking to quiet title thereto, and praying other relief against Elijah F. Spicer, who he declared was asserting title to the same.

The tax deed, in statutory form, which was made a part of the petition as an exhibit, contains the following recital:

"Whereas, F. C. Holt, did on the 4th day of September, A. D. 1912, produce to the undersigned, J. B. Dunham, treasurer of the county of Mayes, in the state of Oklahoma, a certificate of purchase in writing, bearing date of the 22d day of July, 1910, signed by J. E. Bristow, who at the last-mentioned date was treasurer of said county, from which it appears that F. C. Holt did on the 22d day of July, 1910, purchase at public auction at the county treasurer's office in said county, the tract, parcel or lot of land lastly in this indenture, and which lot was sold to F. C. Holt for the sum of fifteen and 25/100 dollars, being the amount due on the following tract or lot of land, returned delinquent for nonpayment of taxes, costs and charges for the year 1909, to wit, S. 2 N.W. 4 of Sec. 15, Twp. 19, R. 18, all in Mayes county, state of Oklahoma."

Defendant filed his answer and cross-petition seeking the cancellation of said tax deed as a cloud upon his title, etc., and alleging in substance that he, and not the plaintiff, was in possession of the land in question; that the sale of said lands for delinquent taxes could not legally have been had on the 22d day of July, 1910; that no legal levy was had in the year 1909, and the lands were not sold in the manner assessed; that the property sold for a greater amount than the taxes pretended to be assessed against it; that said land was not advertised before being sold; that while said land was pretended to be assessed as one parcel it was sold in two; that no notice of application for a tax deed was given defendant; that the tax sale certificate was not returned and filed in the office of the county clerk, and no notation as required by law was made by said clerk; and that none of the things required by law to be done before a valid deed could be legally issued to the plaintiff upon said land were done. Plaintiff failed to reply to the answer, or to answer the cross-petition of defendant.

On the day the case was regularly set for trial, the following judgment was rendered:

"* * * The plaintiff appears not in court at the trial, but the defendant appears in person and by his attorneys before named, and the court proceeds to try said cause, and the evidence is heard, and the court after hearing the evidence finds the issues against the plaintiff and in favor of the defendant and finds that the defendant is entitled to the relief prayed for in his answer and cross-petition and finds that the amount of all the taxes, penalties, interest, and costs which the defendant is required to pay as a condition of the cancellation of the tax deed involved in the action is the sum of $18.97, and that the defendant is entitled to judgment canceling the tax deed involved in this action and forever quieting the title of the defendant to the land described in the plaintiff's petition and in the defendant's cross-petition and awarding him the costs of the action, and the defendant having paid to the clerk of this court said sum of $18.97. It is ordered, adjudged, and

...