Keller v. Hawk

• Decision Date: 05 September 1907
• Citation: 19 Okla. 407,91 P. 778,1907 OK 119
• Parties: E. J. KELLER v. S. C. HAWK.
• Court: Oklahoma Supreme Court

1907 OK 119

91 P. 778

19 Okla. 407

E. J. KELLER v. S. C. HAWK.

Supreme Court of Oklahoma

Decided: September 5, 1907

Syllabus

¶0 1. TAXATION--Real Estate--Sale for Taxes--Void Deed. When a tax deed shows on its face that several lots in a town were sold at one sale, and that the county purchased them as a competitive bidder, the deed is void. While the county treasurer has the right, under the law, to issue a second tax deed for the purpose of curing defects in the first, such authority cannot be exercised to overcome, by false recitations in such second deed, the record upon which it is based.

2. SAME--Tax Certificate--Force of Recitations. A tax certificate, under the law, does not pass title to the land sold. It is a written certification by the county treasurer of the facts regarding the sale of real estate for taxes, and is the legal evidence upon which the holder thereof is, at the proper time, entitled to a deed, or the redemption money. It is prima facie evidence of the correctness of the facts recited therein, and, being made by the treasurer at or near the time of sale, where the recitations thereof are in conflict with the recitations of the tax deed based thereon, the recitations of the tax deed will prevail.

3. SAME--Sale--County as Purchaser. Where a county purchases real estate at a tax sale as a competitive bidder, the sale is void, and a tax certificate or tax deed which recites such fact or other facts from which such competition is necessarily disclosed, is void.

4. SAME--Sale of Each City Lot Separately. Each lot in a city or town must be assessed and sold separately, and, where a tax certificate or deed shows upon its face that several lots were sold together in one sale, such certificate or deed is void.

5. SAME--Action to Try Title--Tender of Taxes Paid. Where one purchases real estate at a tax sale, and goes into possession of the same under a void sale and deed, and the original owner brings an action in ejectment to recover possession, he is not required, as a condition precedent to bringing the action, to tender to the tax deed holder the amount of taxes paid by him.

6. ADVERSE POSSESSION--Evidence--Void Tax Deed. A tax deed which is void upon its face is not admissible in evidence to support an adverse possession under a statute of limitations. A tax deed which is void upon its face cannot be aided by the statute of limitations.

Error from the District Court of Cleveland County; before Clinton F. Irwin, Trial Judge.

Affirmed.

C. L. Botsford, for plaintiff in error.

J. W. Hocker, for defendant in error.

BURWELL, J.

¶1 The appellee, S. C. Hawk, was the owner of lots numbered seventeen to thirty-two, inclusive, in block numbered eleven, in the town of Lexington, in Cleveland county. These lots were sold for taxes and bid in by the county. The county sold the certificate of purchase to the appellee, E. J. Keller, who, on December 24, 1898, obtained a tax deed for the same and went into possession of the lots. On October 30, 1900, the appellee commenced this action in ejectment. The appellant answered, denying generally the allegations of the petition, and then affirmatively pleaded his tax deed. On the final trial judgment was rendered for S. C. Hawk, and Keller appeals to this court.

¶2 On December 24, 1898, the county treasurer made to Keller a tax deed, but this deed showed upon its face that all of these lots were sold together, that the county bought them as a competitive bidder, and that the sale was made at the door of the court house. Recognizing that this deed was void, Keller, on November 13, 1900, obtained from the county treasurer another deed, which recited that there were no bidders other than the county; that the lots were sold separately (giving the amount for which each sold), and that the sale took place at the treasurer's office. This second tax deed was obtained after the commencement of this action. This fact, however, is not considered by us in deciding the case.

¶3 The certificate of sale was issued by R. Aniol, who was county treasurer and who made the sale. The first deed was executed by him also, and its recitations are in harmony with the tax certificate. The second deed was executed by J. W. Stow, who was elected in the place of Mr. Aniol, and took charge of the office at the end of Mr. Aniol's term. The tax certificate, under the law, does not pass title to the land sold. It is a written certification by the county treasurer of the facts regarding the sale of real estate for taxes, and is the legal evidence upon which the holder thereof is, at the proper time, entitled to a deed, or the redemption money. It is prima facie evidence of the correctness of the facts recited therein. These certificates are made out by the treasurer while the facts are fresh, and when there is slight probability of error of memory. And, where there is no other evidence offered as to what actually occurred at a sale, the recitations of the tax certificate will prevail over conflicting recitations in a deed executed by another treasurer some four years after the sale occurred, when the recitations in the tax certificate show that the treasurer had no legal authority to execute the deed. It is true, perhaps, that, if there were a discrepancy between the records of the treasurer's office and the recitations in the tax certificate, the former will prevail; but in this case the facts, as recited in the tax certificate, are not controverted. The validity of the deed depends upon the validity of the proceedings leading up to it. If those proceedings are void, the deed is void also. The only evidence offered on the trial as to what was actually done is the tax certificate and portions of the record which are not in conflict. The tax certificate recites that these lots in question were purchased by the county, it "being the highest and best bidder," and this court has held that such recitation shows that the county was a competitive bidder, and, if so, the deed is void. Hanenkratt v. Hamil, 10 Okla. 219, 61 P. 1050. And under the rule announced in the case of Wilson v. Wood, 10 Okla. 279, 61 P. 1045, the recitations of a tax deed do not overcome facts in conflict therewith, as shown by the tax certificate. In this last case the court expressly held the recitations of a tax deed might be contradicted by one claiming adversely to it. The tax certificate also shows that these lots were sold at one sale for eight dollars and seventy-three cents. This alone would render the sale void. Each lot in a city or town should be assessed and sold separately, and, while more than one lot may be included in the same deed, the deed must affirmatively show the amount for which each lot sold. Frazier v. Prince, 8 Okla. 253, 58 P. 751; Lowenstein v. Sexton, 18 Okla. 322, 90 P. 410; Eldridge v. Robertson et al., reported in this volume, 92 P. 156.

¶4 The contention that, when a deed is defective, another deed may be issued to conform to the facts, adds nothing in favor of the appellant. The second...