Kasner v. Wilson
| Decision Date | 07 March 1950 |
| Docket Number | No. 33620,33620 |
| Citation | 215 P.2d 833,202 Okla. 497 |
| Parties | KASNER v. WILSON. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
A valid resale tax deed divests former owners of all their right, title and interest in the land, and vests in the purchaser an absolute and perfect title in fee simple. The term 'former owners', as used in this connection, includes not only the former owners of record but also includes all persons claiming an interest in the property by prescription, and claims based upon prior occupancy are extinguished by the resale tax deed and cannot ripen into title by limitations by virtue of continued occupancy for less than fifteen years after date of resale tax deed.
Arnold T. Fleig, Oklahoma City, for plaintiff in error.
Chas. D. Scales, Oklahoma City, for defendant in error.
This action involves a strip of land approximately eight feet wide along the south side of Lot 1, Block 1, Powell's Place Addition, a subdivision of a portion of Prospect Heights Addition to Oklahoma City, Oklahoma. Lot 2 of Block 1 of the same addition lies south of and adjacent to Lot 1. These lots face toward the west and reach the east side of Glen Ellyn Street. Lot 1 is twenty-five wide, north and south, and Lot 2 is fifty feet wide. Dora E. Wilson was plaintiff in the trial court and M. Kasner was defendant, and we shall refer to the parties as they appeared there.
The plaintiff, Dora E. Wilson, was the owner of Lot 2 and alleged that one of her remote grantors secured a permit to erect thereon a brick duplex, and that in 1929 he erected the duplex and a garage on the rear portion of the lot. She alleges that Lot 1 was vacant and that her grantor laid a concrete driveway along the north side of the duplex, on what he believed to be his own land, but which he later discovered was the south portion of Lot 1. She further alleged that she and her predecessors in interest had held possession of the driveway for more than fifteen years, and had thus acquired title by limitations to the land on which it lay. She prayed that title be quieted in her and that the defendant be perpetually barred and enjoined from asserting any interest in the driveway land.
An amended petition was filed, in which it was alleged that the defendant had obtained a resale tax deed in 1941 conveying Lot 1 to him, and that in 1945 the defendant had filed an action to quiet title to Lot 1 and had obtained a judgment against the plaintiff and others, but denied that the judgment was valid as to her because she had not been served with summons and had not been made a party when the action was first filed, but had been made a party by interlineation without additional allegations. It was further alleged that the boundary line between Lot 1, owned by the defendant, and Lot 2, owned by the plaintiff, had for more than fifteen years been recognized and acquiesced in as the north edge of the driveway along the south side of Lot 1, and that the plaintiff had gained a right thereto by prescription.
The defendant answered and set up the judgment which he had obtained in 1945, quieting title to Lot 1 in him, and alleged that he had acquired title to Lot 1 by a valid resale tax deed in 1941. He denied that plaintiff had held possession of the driveway land for a sufficient time to acquire title by prescription.
The court found and concluded that the north boundary line of Lot 2 was the north edge of the driveway, and perpetually enjoined the defendant from asserting any claim to that portion of Lot 1 covered by the driveway. The court based its conclusions upon its finding that the judgment in 1945, quieting title in defendant to Lot 1, was ineffective because a quiet-title action did not fix boundaries where there were adverse claims; that the plaintiff and her predecessors had held possession of the land for more than fifteen years, during which time the boundary line so fixed had been recognized and acquiesced in by the adjoining owners; that Lot 1 was assessed for 1936 to 1940 as vacant land, while the driveway was assessed as improvements on plaintiff's property; and that the county never acquired title to Lot 1 by resale. It was further concluded that a resale tax deed gives a title in the nature of a new and independent grant from sovereign authority, but that adverse claimant's possession is not interrupted by a resale for taxes, where claimant remains in possession after the sale; and further, that property rights which are excluded from the assessment for taxes are not sold or extinguished by a tax sale, and that a resale tax deed according to lot and block does not re-establish the boundaries where adjacent owners have recognized and acquiesced in a different line for a long period of time, even though the statute of limitations had not elapsed at the time of the tax sale.
The defendant relies upon three alleged errors for reversal.----
First, that the court erred in holding that the boundary line between Lots 1 and 2 was the north edge of the driveway, instead of the lot line as fixed by the recorded plat of Powell's Place Addition.
Second, that the court erred in holding that the adverse possession of the plaintiff, which was incomplete at the time of the 1941 resale, continued to run thereafter as against the resale purchaser.
Third, that the court erred in holding that the quiet-title judgment obtained by defendant in 1945 was not res adjudicata as against the claims of the plaintiff.
In view of the fact that whatever claim the plaintiff has to the land in controversy is grounded on prescription, and that the defendant relies entirely upon his resale tax deed, we shall first consider the second proposition. What character of title is vested by a resale tax deed? It is admitted here that the deed to the defendant is regular and valid. Section 432f, 68 O.S.1941, provides as follows: 'The issuance of such deed shall effect the cancellation and setting aside of all delinquent taxes, assessments, penalties and costs previously assessed or existing against said real estate, and of all outstanding individual and county tax sale certificates; and shall vest in the grantee an absolute and perfect title in fee simple to said lands.'
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