Jenkins v. Frederick

• Decision Date: 16 December 1952
• Docket Number: No. 35360,35360
• Citation: 257 P.2d 1058,208 Okla. 583
• Parties: JENKINS v. FREDERICK.
• Court: Oklahoma Supreme Court

Page 1058

257 P.2d 1058

208 Okla. 583

JENKINS v. FREDERICK.

No. 35360.

Supreme Court of Oklahoma.

Dec. 16, 1952.

Rehearing Denied Feb. 17, 1953.

Application for Leave to File Second Petition for Rehearing

Denied June 17, 1953.

As Corrected June 18, 1953.

Syllabus by the Court.

1. Where notice of resale of lands for nonpayment of taxes includes taxes for last quarter of previous year, which are not delinquent at time of first publication of such notice, the resale deed and title based thereon are void.

2. A conveyance of oil, gas and other minerals in and under land is a conveyance of an interest in the land itself but oil and gas while lying in the strata of the earth, with no production therefrom, must be taxed as realty to the owner of the land if such land is taxable.

3. In Oklahoma the statutory method of assessment of land for ad valorem taxes is in rem and adverse interests which may be held in realty are not separable for taxation purposes.

4. A resale tax deed conveys to the purchaser the entire interest and estate in land, including oil and gas rights therein, where oil and gas was not being produced therefrom and gross production tax paid thereon during the years of delinquency in failing to pay ad valorem taxes.

5. An action or defense against a resale tax deed, which is void on the face of the tax sale proceedings, is barred from prosecution, if there has been a lapse of time, following its recordation, accompanied with possession of the real property by the holder of the resale tax deed, for the period prescribed by statute as sufficient to bar an action for the recovery of the real property.

6. Where a statute authorizes a lien for ad valorem taxes to be foreclosed by advertisement and sale by the county treasurer, the proceedings thereunder relate to the land itself, rather than the owner thereof, and where the statute provides for notice and gives the right to any person owning the land, or any interest therein, to redeem the land from such taxes at any time before a tax deed is issued by the county treasurer, the statute affords due process of law, and the owner of the non producing oil, gas, and other mineral rights, whose interest in the land, in the name of the owner of the surface, is assessed, advertised, and sold for delinquent ad valorem taxes, is given equal protection of the law and is not deprived of property without due process of law.

Joy G. Clayton, of Tulsa, for plaintiff in error.

Wesley E. Disney, Joe B. Houston, Gerald B. Klein, James P. Melone and Garland Keeling, all of Tulsa, for defendant in error.

GIBSON, Justice.

The parties will be given their trial court designations. Plaintiff in error was plaintiff, and the defendant in error was one of several defendants. Plaintiff filed his petition naming as defendants Dan A. Rowe, county treasurer of Tulsa County, the Board of County Commissioners and several other defendants, including Etta J. Frederick, alleging that the defendants claimed some right, title or interest in a described quarter section of land in Tulsa County. He alleged that he was the owner of the legal title in fee simple and in possession of the real estate, and had acquired his title by deed from one R. F. Henshaw, who in turn had acquired the title by a county treasurer's resale tax deed dated May 17, 1940, and duly recorded, and that the defendants had no title to the lands; that any rights claimed by them were lost and voided by said tax resale, but the claims of defendants constituted a cloud on the title of plaintiff. He prayed that his title be quieted.

Defendant filed an answer alleging that she was the owner of an undivided one-half interest in and to the oil, gas and other minerals under said property in so far as they may be produced from any sand below that generally described as the Glen Sand, and further that the purported tax sale, its proceedings and deed described in plaintiff's petition were wholly ineffective as to defendant's mineral interests and that said deed did not convey the mineral rights of defendant for the reason that oil had been discovered upon said land and the gross production tax was paid thereon during each year for which said land was purportedly sold for taxes. It was further alleged that the tax sale and deed were void for the reason that it was made for taxes unlawfully assessed and for taxes not yet due or delinquent.

The cause was tried and submitted on a stipulation of facts in which the agreed facts pertinent to the issues here presented were as follows:

On November 18, 1929, J. P. Flanagan, former owner, by mineral deed conveyed an undivided one-half the minerals in the involved land, produced below the Glen Sand, to William J. Frederick who died in 1938. The defendant is his widow, and she acquired his interest by mesne conveyances from the Frederick heirs. Oil was produced on the property, from the Glen Sand, and gross production taxes were paid thereon for the years 1929 to 1932, both inclusive, but there has been no production of oil since March 1932. On November 3, 1930, the property was sold to Tulsa County for delinquent taxes for the year 1929. At the annual 1940 tax resale held on May 3, 1940, the property was sold by the County Treasurer for taxes including 1929 ad valorem taxes and all ad valorem taxes for the years 1931 to 1939, both inclusive. It is stipulated that the sale was made for and included the entire levy for the year 1939, and the notice of sale was first published April 11, 1940.

The purchaser was R. F. Henshaw and his resale tax deed, executed by the county treasurer, was issued May 17, 1940, and recorded May 20, 1940. Henshaw conveyed to plaintiff by quitclaim deed on June 4, 1940, and plaintiff has been in possession of the surface of said property at all times since said date.

Judgment was rendered for the plaintiff quieting his title as against all defendants except Etta J. Frederick. Judgment was in her favor on June 30, 1951, quieting her title to an undivided one-half interest in and to all oil, gas and other minerals in and under the real property that may be produced in any sand below the Glen Sand. Plaintiff appeals.

Plaintiff here urges that the judgment is contrary to and not supported by the evidence and that the judgment is contrary to law.

The resale tax deed under which plaintiff asserted his title was void. The factual situation, even to the year of the resale, is parallel to the case of Williamson v. Hart, 199 Okl. 328, 186 P.2d 71, wherein we said:

'One of the irregularities in the tax resale procedure relied on by plaintiff was the fact that the property was sold in May, 1940, pursuant to advertisement beginning April 11th. Included in the amount for which the property was advertised and sold, was the entire levy for the year, 1939. The last quarter of these taxes did not become delinquent until May 1st, under the provisions of 68 O.S.1941 § 351. This court has held that, where the amount for which the property is advertised and sold includes an item of tax which does not become delinquent until after the first publication of notice of resale, the procedure is ineffective to give the county treasurer authority to sell the same and renders the resale tax deed based thereon void. House v. Mainka, 196 Okl. 174, 163 P.2d 225; Sarkeys v. Evans, 197 Okl. 304, 170 P.2d 229; Carman v. McMahan, 198 Okl. , 178 P.2d 626.'

Plaintiff says that defendant is barred from asserting such defense by the statute of limitations, Tit. 12 O.S.1951 § 93:

'Actions for the recovery of real property, or for the determination of any adverse right or interest therein, can only be brought within the periods hereinafter prescribed, after the cause of action shall have accrued, and at no other time thereafter:

'(1) * * *

'(2) * * *

'(3) An action for the recovery of real property sold for taxes, within five (5) years after the date of the recording of the tax deed.

'(4) * * *

'(5) * * *

'(6) Numbered paragraphs 1, 2, and 3 shall be fully operative regardless of whether the deed or judgment or the precedent action or proceeding upon which such deed or judgment is based is void or voidable in whole or in part, for any reason, jurisdictional or otherwise; provided that this paragraph shall not be applied so as to bar causes of action which have heretofore accrued, until the expiration of one (1) year from and after its effective date.'

Paragraph (6) did not appear in our statute until the amendment of S.L.1949, Chap. 3, Sec. 1, p. 95.

The Legislature had some purposeful intent in enactment of this strict amendment. Prior to the amendment this court had upheld the short term statute as a bar to actions for the recovery of land sold at judicial sale even where the sale was void and not merely voidable, and we had held that such deed was sufficient to set the statute in operation. Dodson v. Middleton, 38 Okl. 763, 135 P. 368 (guardian's deed); Sandlin v. Barker, 95 Okl. 113, 218 P. 519 (administrator's deed); Green v. Wahl, 117 Okl. 292, 246 P. 419 (sheriff's deed); Goslen v. Waddell Inv. Co., 145 Okl. 269, 292 P. 362 (foreclosure sale).

But we had consistently held that the short term statutes of limitation did not apply in tax sale cases, where the deed relied upon was void. Lind v. Stubblefield, 138 Okl. 280, 282 P. 365; Farmers Nat. Bank, etc., v. Gillis, 155 Okl. 290, 9 P.2d 47; Cunningham v. Webber, 171 Okl. 211, 42 P.2d 244; Westerheide v. Wilcox, 190 Okl. 382, 124 P.2d 409.

We do not find subsec. (6), supra, to be ambiguous.

'Where the language of a statute is plain and unambiguous, and its meaning clear and unmistakable, there is no room for construction, and the courts are not permitted to search for its meaning beyond the statute itself.' In re Martin's Estate, 183 Okl. 177, 80 P.2d 561.

The Legislature plainly says in subpar. (6) that paragraph (1), relating to judicial sales; paragraph (2), relating to sales by executors, administrators and guardians, and para...