Syllabus
by the Court.
Where
in an action of ejectment, the plaintiff sees fit, in setting
forth the statutory requirements of a cause of action, in
addition thereto, to set out the title and source of title of
each of the parties, and a demurrer is filed to such
pleading, upon consideration of such demurrer all of the
facts pleaded will be considered in determining its
sufficiency.
Under
the requirements of the statutes of Oklahoma (Wilson's
Rev. & Ann. St. 1903, § 6037) a county treasurer, on behalf
of the county, may not become the purchaser of real property
at tax sale, except in the absence of other bidders offering
the amount due thereon, and such facts must be made to appear
in a tax deed, where such deed is based upon a tax sale to
the county. Held that, where a tax deed recited
"Whereas, at the place aforesaid, neither of said
parcels, tracts, or lots of property could be sold for the
amount of taxes and charges thereon, and each of them was
severally and in due course as aforesaid offered for sale and
bid off by the county treasurer of said county for the whole
amount of taxes," such allegation is a sufficient
compliance with the requirements of the statute liberally
construed; such construction being directed by the statute.
[Ed
Note.-For cases in point, see Cent. Dig. vol. 45, Taxation
§§ 1510-1513.]
A
petition which sets forth in general terms the fact that
illegal interest, penalties, costs, and expenses were charged
against real property sold for taxes, and that the deed was
void because separate school taxes were assessed against said
property, and that a special city tax was illegally levied
against said property, the same being a part of the taxes
interest, and expenses for which said property was sold, does
not, upon demurrer, state facts sufficient to raise such
questions. It is necessary in such case to show wherein the
tax was illegal, or the costs and expenses were illegally
charged against the property.
[Ed.
Note.-For cases in point, see Cent. Dig. vol. 39, Pleading,
§§ 12-28 1/2.]
A
banking corporation, authorized under the laws of the
territory of Oklahoma, may not engage in real estate
speculations not authorized by its charter, but where, as in
this case, a bank is one of the grantors in a chain of title
derived from a tax sale of real estate, such fact is not
sufficient to avoid the tax deed.
Error
from District Court, Logan County; before Justice Jno. H.
Burford.
Action
by M. M. Jones against Ananias Carnes. Judgment for
defendant, and plaintiff brings error. Affirmed.
This is
an action of ejectment to recover possession of lots 1 and 2,
in block 84, in the city of Guthrie, O. T. The petition in
this case, so far as necessary to be set out in order to show
the rights of the parties herein, is in words and figures
following, to wit:
"In
the District Court of Logan County, O. T. M. M. Jones v.
Ananias Carnes. Petition. The above-named plaintiff, M. M.
Jones, complains of the above-named defendant, Ananias
Carnes, and for cause of action states: That she, the said
plaintiff is the owner in fee simple of the
following-described real property situated in Logan county,
O. T., to wit: Lots numbered one (1) and two (2) in block
number eighty-four (84) in the city of Guthrie, Logan
county, O. T., and in that part of said city of Guthrie
commonly known as 'Guthrie Proper,' same being part
and parcel of the east one-half of section eight (8), in
township sixteen (16) north, of range two (2) west of the
Indian Meridian. That prior to and on November 5, 1895, the
date the pretended tax deed hereinafter mentioned was
issued, Benj. F. Blubaugh was the owner of lot one (1) in
block eighty-four (84), Guthrie Proper, part and parcel of
above-described real property, and had a right to redeem
said property. That prior to and on November 5, 1895, the
date the pretended tax deed hereinafter mentioned was
issued, George B. Blubaugh was the owner of lot two (2) in
block eighty-four (84) Guthrie Proper, part and parcel of
above described real property, and had a right to redeem
said real property. That the plaintiff has since purchased
all the right, title, and interest of the said Benjamin F.
Blubaugh and the said George B. Blubaugh in and to the
above-described real property, and now has the same right,
title, and interest that the said Benjamin F. Blubaugh and
the said George B. Blubaugh then had. That the defendant,
Ananias Carnes, now is, and for a long time prior hereto
has been, wrongfully in possession of said real property,
and to the exclusion of plaintiff. That said defendant is
so in possession of said real property and claiming to be
the owner thereof adversely to this plaintiff under and by
virtue of a certain written instrument bearing date of
November 5, 1895, purporting to have been executed by
Joseph Stiles, Treasurer of Logan county, O. T., on behalf
of Oklahoma Territory and purporting to convey said real
property unto the Bank of Indian Territory. That, at a
subsequent time, to wit, November 11, 1897, the Bank of
Indian Territory executed a written instrument,
quitclaiming all its rights, title, and interest in and to
the said real property, and purported to convey some right,
title, and interest in and to the said real property unto
the defendant herein. That the defendant has the same
pretended title as held by the said Bank of Indian
Territory, and none other. True and certified copies of
said written instruments, together with all indorsements
thereon, are hereto attached, marked Exhibits A and B,
respectively, and made a part hereof. That said written
instrument marked Exhibit A purports to be a tax deed. That
said written instrument is illegal and void, and of no
legal effect, and conveys to said defendant no right,
title, or interest in or to said real property. 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 real property unto said defendant, for that said
written instrument recites that, at a tax sale held in
Logan county, said real property was 'offered for sale
and bid off by the county treasurer of said county,'
and does not recite that there were no other bidders for
said real property, and does not recite that the said real
property was bid in for the county in the absence of other
bidders, and does not recite that it was bid in for the use
and benefit of Logan county. That said written instrument
is void on its face and of no legal effect in that said
written instrument recites that the certificates of tax
sale were made to, and in the name of, the treasurer of
Logan county, and does not recite that said certificates of
purchase were made to and in the name of Logan county. That
said written instrument is void and illegal and of no legal
effect for that interest, penalties, costs, and expenses
were attached to, and charged against, said real property
before the taxes for the year 1892 were delinquent, said
taxes, together with said interest, penalties, costs, and
expenses being the taxes for which said real property
purports to have been sold. That said written instrument is
void and illegal and of no legal effect, and conveys no
right, title, or interest in or to said real property unto
the said defendant for that a separate school tax was
levied and charged against said real property for the year
1892, for which said tax said real property purports to
have been sold. That said written instrument is void and
illegal and of no legal effect, and conveys no right,
title, or interest in or to said property unto the said
defendant for that 'a special tax (city),' was
levied and charged against said real property, for the year
1892 and said 'special tax (city),' made a part of
the taxes for which said real property purports to have
been sold. That, before the filing of this suit, the
plaintiff, through her duly authorized agent, tendered to
the defendant all taxes, interest, penalties, costs,
expenses, and charges against said real property, and asked
for possession and a quitclaim deed from defendant to
plaintiff, which said tender was refused, and possession
denied, and quitclaim deed not given, and plaintiff now
tenders in open court all taxes, interests, penalties,
costs, charges, and expenses chargeable against said real
property which may be due and owing to said defendant.
Wherefore plaintiff prays that the pretended title of the
defendant be set aside and canceled; that the plaintiff be
given the possession of said real property; for such other
further and general relief as may be just, and for the cost
of this action. [Signed] Mintoyne and Jones, Attys. for
Plaintiff."
Exhibit
A:
"(15)
All of lot numbered one (1), in block numbered eighty-four
(84), in that portion of the city of Guthrie formerly known
as 'Guthrie Proper,' according to the recorded plat
thereof. (16) All of lot numbered two (2), in block numbered
eighty-four (84), in that portion of the city of Guthrie
formerly known as 'Guthrie Proper,' according to the
recorded plat thereof. Each of said lots or parcels of land
being situated in the county of Logan, in the territory of
Oklahoma, was severally subject to taxation for the year A
D. 1892. And whereas, the taxes assessed upon each of said
several tracts, parcels, and lots of real property
respectively, for the year aforesaid, remained due and unpaid
and were returned delinquent at the date of the sale
hereinafter mentioned, for nonpayment of taxes, costs, and
charges for the year 1892; and whereas, the treasurer of said
Logan county did, on the 7th day of September, A. D. 1893, by
virtue of the authority in him vested by law, at the sale
begun and publicly held...
