Jones v. Storie
| Decision Date | 05 February 1935 |
| Docket Number | Case Number: 22586 |
| Parties | JONES v. STORIE |
| Court | Oklahoma Supreme Court |
¶0 1. Appeal and Error - Trial - Review of Equity Case - Conclusiveness of General Finding.
In an equity action, where the finding of the court is general, such finding is a finding of each specific thing necessary to sustain the general finding; where such finding is not clearly against the weight of the evidence, the judgment will be affirmed.
2. Taxation - Invalidity of Tax Deed Where Property not Included in Notice of Sale.
A tax deed based upon a sale of property which was not included in the notice of sale renders both the sale, so far as that particular property is concerned, and the deed based thereon, void.
3. Same - Statute Requiring Tender of "All Taxes, Interest," etc., not Applicable in Action to Cancel Void Tax Deed.
That part of section 9753, C. O. S. 1921 (sec. 12763, O. S. 1931), providing for the payment or tendering of all taxes, interest, penalties, costs and expenses in an action to avoid a tax deed, applies only to a tax deed irregular or voidable, and has no application in an action to cancel a void tax deed.
Appeal from District Court, Oklahoma County; Orel Busby, Judge.
Action by Robert Storie against E. Hammond Jones. Judgment for plaintiff, and defendant appeals. Affirmed.
Leo G. Mann, for plaintiff in error.
Willingham & Farris, for defendant in error.
¶1 This action was brought in the district court of Oklahoma county by the plaintiff, Robert Storie, on July 9, 1930, to set aside and cancel a certain tax deed covering the real estate described as lots 6 and 7 in block 10, Armondale addition to Oklahoma City, issued by the county treasurer of Oklahoma county to the defendant, E. Hammond Jones, on the 20th day of March, 1930, and to determine the heirs of Sarah J. Wingler and Ina Wingler Robare, deceased.
¶2 Plaintiff's title is based upon a quitclaim deed obtained from the record owner, and he also has a tax deed issued to him by the county treasurer of Oklahoma county of January 22, 1930. The defendant, in his answer, pleads a misjoinder of parties defendant and also causes of action, and that the court is without jurisdiction to determine heirship, and then sets up his own title, namely, the tax deed issued to him, hereinbefore mentioned, the one which plaintiff seeks to cancel.
¶3 The issues thus made were tried on January 22, 1931, and from a judgment in favor of plaintiff, the defendant has duly appealed. For convenience, the parties will be designated as in the trial court.
¶4 The questions of misjoinder of parties defendant and causes of action and jurisdiction of the court to determine heirship are not necessary to determine, as they are not raised by the defendant in this court. The parties stipulated in the beginning of the trial as to the record chain of title to the property prior to the issuance of the tax deed to the defendant, and as to the heirs, devisees, and legatees of the then owners and subsequent owners, and the evidence discloses the various deeds of conveyance by the record owners, including the quitclaim deed to the plaintiff, Storie. The only question, therefore, necessary to determine, is the validity of the tax deed, under which the defendant claims.
¶5 It was contended by plaintiff in the trial court that the Jones deed was fatally defective and void for many reasons. Among others assigned are: (1) That the treasurer failed to advertise the sale of the property for the 1925 taxes; that is to say, the property sold was not included in the advertisement of notice of the November, 1926, sale, the same being the sale under which the defendant, Jones, secured his deed; (2) that the treasurer undertook to sell both lots together for a lump sum; (3) that the treasurer failed to file a return of the property sold showing to whom the property was sold; (4) that the property had been redeemed from the purported tax sale before the execution of the tax deed to the defendant.
¶6 To support these various contentions, the plaintiff introduced in evidence the proceedings of the county treasurer, as disclosed by the records of that office, as well as the record of the proceedings in the office of the county clerk of Oklahoma county, upon which the Jones deed is based, including the deed itself; also the testimony of the deputy county treasurer and deputy county clerk, who substantiated the contentions of the plaintiff.
¶7 The defendant likewise offered in evidence the proceedings upon which he claimed his tax deed was based, including the deed itself. At the close of all the evidence, the trial court found generally for the plaintiff.
¶8 This court has repeatedly held that:
"In a civil action triable to the court, where the finding of the court is general, such finding is a finding of each specific thing necessary to sustain the general finding, and where such finding is not clearly against the weight of evidence, the judgment will be affirmed." Watashe v. Tiger, 88 Okla. 77, 211 P. 415; Oklahoma Digest Ann., "Appeal and Error," section 595, vol. 6, pp. 129, et seq.
¶9 We have examined the record in this case and find that the evidence, both oral and documentary, sustained the findings of the trial court. The notice of sale for November, 1926, the proceedings upon which the Jones deed is based, did not include the property involved herein. It was not a case of error in description; there was a total failure to include this property in the description.
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Parks v. Lyons, Case Number: 27712
...of Oklahoma City v. Gillis (1932) 155 Okla. 290, 9 P.2d 47; Cunningham v. Webber (1935) 171 Okla. 211, 42 P.2d 244; Jones v. Storie (1935) 172 Okla. 473, 40 P.2d 1067. 5. SAME - Appeal and Error - Remand of Cause to Permit Defendant to Make Required Tender Where He Had Relied on Prior Decis......
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Moore v. Barker
...Therefore we conclude that as to the five lots above named the resale deed, upon which plaintiff bases title, is void (Jones v. Storie, 1935, 172 Okla. 473, 40 P.2d 1067), but as to the remaining 13 lots involved, the resale deed is valid. It follows that as to these 13 lots, plaintiff clea......
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Parks v. Lyons
... ... Bank of Oklahoma City v. Gillis, ... 1932, 155 Okl. 290, 9 P.2d 47; Cunningham v. Webber, ... 1935, 171 Okl. 211, 42 P.2d 244; Jones v. Storie, ... 1935, 172 Okl. 473, 40 P.2d 1067 ... 5 ... Ordinarily, where plaintiff's petition, which relies upon ... a tax ... ...
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Williams v. Downing
...finding of the trial court constituted a finding of every special thing necessary to support such general finding. See Jones v. Storie, 172 Okl. 473, 40 P.2d 1067; Bolend v. Rogers, 173 Okl. 91, 45 P.2d Noble v. Bodovitz, 175 Okl. 432, 52 P.2d 1046. The record presents no reversible error. ......