Kasner v. Stanmire

• Decision Date: 19 December 1944
• Docket Number: 31326.
• Parties: KASNER et al. v. STANMIRE et al.
• Court: Oklahoma Supreme Court

155 P.2d 230

195 Okla. 80

KASNER et al. v. STANMIRE et al.

No. 31326.

Supreme Court of Oklahoma

December 19, 1944

Rehearing Denied Jan. 30, 1945.

Syllabus by the Court.

1. When a notice of resale for delinquent taxes, 68 O.S.1941 § 432b is erroneous or inexact as to the land description, the court may examine into the law or fact question to determine whether such notice is in substantial compliance with such statute.

2. In a notice of resale of land prescribed by 68 O.S.1941 § 432b the description of the land is sufficient if the notice as a whole will enable the owner and prospective purchasers to become informed that certain land is to be sold and enable them to identify and locate the land with substantial certainty. In determining such matters a fact question may be involved and the trial court's determination in that respect will not be disturbed by this court unless clearly against the weight of the evidence.

3. Record examined, and held, that the general finding of the trial court having the effect of a finding that the notice of resale failed to substantially comply with statute, is not against the clear weight of the evidence.

Appeal from District Court, Oklahoma County; George H. Giddings Judge.

Action by E.M. Stanmire and another against M. Kasner and another to cancel resale tax deeds under which defendants claimed title to the lands involved and to quiet title. Judgment for plaintiffs, and defendants appeal.

Affirmed.

HURST, J., dissenting in part; RILEY, J., dissenting.

W.F. Smith and Arnold Fleig, both of Oklahoma City, for plaintiffs in error.

Halley, Douglass, Felix & Douglass and Herman Merson, all of Oklahoma City, for defendant in error E.M. Stanmire.

O.J. Roberts, of Oklahoma City, for defendant in error Cora M. Merrill.

WELCH, Justice.

There is presented here the validity of resale tax deeds and the proceedings of sale supporting same.

The land involved is two city lots separately assessed. Upon both lots there is a single substantial business building. The lots are properly described as lots 18 and 19, block 3, Caldwell's Addition to Oklahoma City, Oklahoma County, Oklahoma, as shown by the recorded plat thereof.

The county purchased said lots at annual tax sale in 1939, 1940 and 1941. At the regular resale these lots were sold to plaintiff in error, Edith Wolfson, on May 14, 1942, and on May 22, 1942, the county treasurer of Oklahoma county executed an instrument designated "County Treasurer's Resale Tax Deed" to Edith Wolfson, describing lands as follows: "Lots 18 and 19, Block 3, Caldwell's First Addition to Oklahoma City, Oklahoma." This deed failed to show any date upon which the land was sold at resale. Same was recorded on date of issue. On June 12, 1942, Stanmire, the owner or former owner, having just learned of the resale, tendered to the county treasurer in cash all taxes, interest, penalty, and costs, assessed and charged against said lands. Such tender was refused.

On June 18, 1942, the county treasurer executed a "correction deed, County Treasurer's Resale Deed" to Wolfson, describing lots 18 and 19, block 3 in Caldwell's First Addition to Oklahoma City, Oklahoma. This deed recites that such land was sold at resale on 5-14-42. Same was recorded June 18, 1942. There is no difference in the two deeds except the latter or so-called "correction" deed does show the day of resale which was omitted from the first deed.

The notice of the 1942 resale listed no land as being located in Caldwell's Addition to Oklahoma City, Oklahoma, though the same did list lots 18 and 19, block 3 in Caldwell's First Addition to Oklahoma City, Oklahoma, in the name of E.M. Stanmire.

Stanmire instituted this action to quiet his title as against the tax deed holder. His contention is that the notice is not in substantial compliance with law; that the advertisement and sale was for less than the total taxes, penalty, interest and costs; that the original resale deed was not in substantial form provided by statute and that both deeds are ineffective because they do not properly describe his property. The trial court, after full hearing, rendered a general judgment in favor of plaintiff Stanmire.

We first examine into the sufficiency of the notice as relates to the description of the land. 68 O.S.1941 § 432b prescribes the contents of such notice. As concerns the present inquiry such section provides: "Such notice shall contain a description of the estate to be sold. ***" Substantial compliance therewith is sufficient. Davis v. Fariss, 180 Okl. 125, 68 P.2d 417, and King v. Slepka, Okl.Sup., 146 P.2d 1002, and other cases.

The description of the land is sufficient if the contents of the notice will enable the owner and prospective purchasers to identify and locate the land with substantial certainty, and the purpose of the notice is to warn the owner that his property is to be sold so that he can prevent sale by paying his taxes and to advise prospective purchasers so that they can investigate the property and determine whether they want to bid. Chamberlain v. Davis, 191 Okl. 457, 130 P.2d 848.

The land description in the notice relied upon here by the tax deed holder is not a proper or true description of the Stanmire lots. This record contains no dispute in that respect. It follows that full compliance with statute in that respect is not shown. The notice is at best irregular, erroneous and inexact in that respect, in which event it becomes necessary to examine into the question and determine whether there is substantial compliance with the statute.

We conceive it to be the law that substantial compliance with a statute is not shown unless it is made to appear that the purpose of the statute is shown to have been served. In this case such examination involved considerable evidence taken at the trial, and we think the inquiry became one of fact as properly treated by the trial court and the parties.

The evidence shows that the official plat in which the Stanmire lots are situated is officially designated as Caldwell's Addition to Oklahoma City, Oklahoma. The notice of resale here was so constructed as to show all lots listed in any one of the many additions to Oklahoma City under a separate subheading in bold type designating the particular addition. Though there were designations therein of "Caldwell's 1st Addition," "Caldwell's 2 Addition" and "Caldwell's 3rd Addition," and many other additions, there is no reference in the notice to a "Caldwell's Addition." The evidence shows there is no addition in Oklahoma City officially designated as "Caldwell's 1st Addition."

We are not prepared to say as a matter of law that Stanmire, upon examining the notice, was required to do more than satisfy himself that no land in "Caldwell Addition" was advertised for sale. In view of the trial court's findings we should not say as a matter of law that Stanmire was not, or could not have been, justified in relying on the fact that no land in his addition was to be sold. Nor can we say, against the trial court's determination, that the law would require that he search the notice as to reference to other descriptions. Nor are we to say as a matter of law, aside from any question of fact, that the description in this notice was in all events wholly sufficient to notify and attract prospective bidders who desired to buy the Stanmire lots, but who knew from the records that the Stanmire lots were in "Caldwell's Addition" and that the notice contained no list of property within that addition.

It may be conceded that had Stanmire examined the notice under the heading "Caldwell's 1st Addition" and actually seen certain lots there listed in his name, the notice as to him might have been found to be sufficient, under all the facts in evidence, to serve the purpose of the statute, but as shown by the Davis case, supra, there is still the matter of the public policy to so give notice as to properly advise prospective bidders and to induce them to buy. One desiring to buy lots in a certain addition and willing to pay a fair price therefor could not be said as a matter of law to have been informed that such lots were offered for sale under a notice describing lots in an addition bearing another name.

We therefore conclude that the finding of the trial court to the effect that the notice of sale was not in substantial compliance with the statute, in the manner and for the reasons shown, is not against the clear weight of the evidence. It will not support the resale deeds herein.

Our conclusion above renders it unnecessary to decide other points presented.

We affirm the findings and judgment of the trial court.

CORN, C.J., GIBSON, V.C.J., and OSBORN, BAYLESS, and DAVISON, JJ., concur.

HURST, J., concurs specially.

ARNOLD, J., concurs in conclusion.

RILEY J., dissents.

HURST, Justice (concurring in result but dissenting as to reasoning).

I think the judgment appealed from should be affirmed, but not for the reason assigned in the majority opinion. The trial court made no findings of fact or conclusions of law, and the record does not disclose the reasons for the judgment.

1. I cannot reconcile the majority opinion with our prior decisions in Medaris v. Tracey, 170 Okl. 113, 39 P.2d 30, Street v. Board of Com'rs, 180 Okl 177, 68 P.2d 514, and G.A. Nichols, Inc., v. Simpson, Okl.Sup., 147 P.2d 437. The rule followed by these decisions, and which prevails generally throughout the country, is that a description of real property on the tax rolls, in a tax sale notice or in a tax deed, is sufficient if it does not mislead and if it identifies or designates with reasonable...