King v. Slepka
| Decision Date | 14 March 1944 |
| Docket Number | 31039. |
| Citation | 146 P.2d 1002,194 Okla. 11,1944 OK 138 |
| Parties | KING v. SLEPKA. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. By virtue of express statutory command contained in Sec. 9, Art 31, Chap. 66, S.L.1939, 68 O.S.1941 § 432h, in order to defeat a resale tax deed it must be clearly plead and clearly proven that one or more of the essential prerequisites to the vesting of authority in said County Treasurer to execute such deed was wholly omitted and not done; and a showing that one or more of said prerequisites was irregularly done shall not be sufficient to defeat the deed.
2. By virtue of express statutory command contained in Sec. 453 Title 68 O.S.1941, in proceedings attacking the validity of tax deeds, the rule that tax proceedings are to be strictly construed as against the tax purchaser, shall not apply, but in all courts the provisions of the statutes relating to tax sale procedure shall be liberally construed, to the end that the provisions and purpose of the statutes and all proceedings thereunder shall be sustained.
3. A notice of tax resale of lands for delinquent taxes in substantial compliance with the statutory requirements is sufficient to support a resale tax deed otherwise valid.
4. The doctrine or rules relating to "idem sonans" are applicable in determining the sufficiency of a notice of resale of lands for delinquent taxes.
5. When it is shown that a notice of resale required by section 432b title 68 O.S.1941, was duly published stating the name of the owner as "Crittenden & Smith," properly describing lands the title to which is held by Crittenden Smith, when the name of the owner appeared upon the last tax rolls in the office of the County Treasurer as "Crittenden Smith" is, in the absence of other evidence, sufficient to sustain the conclusion that notice was given in substantial compliance with the statute, in consideration of general rules relating to "idem sonans."
6. It is sufficient compliance with 68 O.S.1941 § 432b, as concerns time and dates of publication of notice of resale, when such notice is published on April 11th, 18th, and 25th, and May 2nd, 1940, for a sale to be commenced May 13th, 1940.
7. Sec 8, Art. 31, Chap. 66, S.L.1939, 68 O.S.1941 § 432g, prescribes the form to be substantially followed in the matter of resale tax deeds. Sec. 9 of said article 68 O.S.1941 § 432h, provides that a deed prepared in substantially that form shall be prima facie evidence "that the property was legally sold at resale to the grantee named in said resale deed, ***" and, "that all proceedings, notices and duties provided, required and imposed by law prerequisite to the vesting of authority in the county treasurer to execute such deed had been followed, given, complied with and performed." By virtue of such statutes a resale tax deed which fails to contain a recital stating affirmatively that the county treasurer was not a competitive bidder, and that no other person offered the minimum bid required by law therefor, is not for such reasons void on its face.
8. Record examined, and held, that the finding of the trial court to the effect that the former landowner was not entitled to redeem under the provisions of 68 O.S.1941 §§ 433a and 432f is not against the weight of the evidence.
Appeal from District Court, Okfuskee County; Arthur Cochran, Judge.
Action by Willie King, an incompetent, by Crittenden Smith, his next friend, against Anton Slepka to cancel deeds made in tax sale proceedings. Judgment for defendant, and plaintiff appeals.
Affirmed.
Hiatt & Hannigan, of Okmulgee, for plaintiff in error.
Martin L. Frerichs and James C. Wright, both of Okemah, for defendant in error.
This action was brought by Willie King, by Crittenden Smith, his next friend, to cancel a certain resale tax deed and a subsequent commissioners' deed. Plaintiff tendered the amount of taxes, penalties and costs. The land here involved was originally owned by Willie King, but had been conveyed to Crittenden Smith, who held same in trust for Willie King.
The trial court upheld the validity of the deeds and in this appeal the plaintiff urges as error several propositions as hereinafter shown.
It is said that the resale deed to the county is void because the notice of resale did not contain "*** the name of the owner of said real estate as shown by the last tax rolls in the office of the County Treasurer ***." As required by 68 O.S.1941 § 432b.
The facts material to that question are as follows: The resale was held in 1940; the name of the owner of said real estate as shown by the last tax rolls in the office of the County Treasurer appears as "Crittenden Smith." In the notice of resale the name of the owner appeared as "Crittenden & Smith."
Plaintiff cites cases to the effect that the above quoted provisions of the statute are mandatory and that failure to comply with the terms thereof renders the resale deed issued upon sale thereunder void.
The defendant takes no issue with such rules of law, but urges that the facts here disclose compliance with the statutes under the doctrine of "idem sonans." It seems that we have not heretofore considered the exact question.
Our prior decisions clearly reflect that giving of the notice contemplated by this statute is essential to the power of the Treasurer to sell the land. Wilkinson v. Gibbons, 98 Okl. 93, 224 P. 178, and others.
That the notice of sale to be brought to the attention of the property owner must be through the medium therein provided, to-wit: The publication of same for the required length of time and for the required number of publications. Welborn v. Whitney, 190 Okl. 630, 126 P.2d 263, wherein we held that failure to publish as required by statute amounted to a "total omission" to comply with one of the essential statutory requirements.
The obvious purpose of the law being that the contents of the published notice must be sufficient to inform the property owner of intention to sell, our inquiry here is whether this notice is sufficient to accomplish such purpose.
In 1939 the Legislature enacted, as a part of the general law relating to tax resale procedure, the following:
"To defeat the deed it must be clearly plead and clearly proven that one or more of the essential prerequisites to the vesting of authority in said County Treasurer to execute such deed was wholly omitted and not done; and a showing that one or more of said prerequisites was irregularly done shall not be sufficient to defeat the deed." Which appears as a part of Sec. 9, Art. 31, Chap. 66, S.L.1939, 68 O.S.1941 § 432h.
Section 453, Title 68 O.S.1941, prescribingseveral rules to be followed by the courts in suits involving the validity of tax deeds, provides in part as follows:
"*** The rule that tax proceedings are to be strictly construed as against the tax purchaser, shall not apply to proceedings under this Act, but in all courts its provisions shall be liberally construed, to the end that its provisions and all proceedings thereunder shall be sustained."
Such statutory rules of law apply to resale tax deeds as well as to certificate tax deeds. Johnson v. Bloomer, 191 Okl. 368, 130 P.2d 298, and Chamberlain v. Davis, 191 Okl. 457, 130 P.2d 848. It is the plain legislative intent, as expressly declared by the last above-noted statutes, that substantial compliance with the statutes relating to procedure for the enforced sale of real estate for delinquent taxes is all that is required, and that mere irregularities not affecting the substantial rights of the taxpayer and not in clear violation of the public policy as declared by the Legislature, will not suffice to invalidate the deed. Swearingen v. McCartan, 186 Okl. 241, 96 P.2d 1061; Henshaw v. Morris, 189 Okl. 603, 119 P.2d 85; Reeves v. Caldwell, 179 Okl. 501, 66 P.2d 75; Davis v. Fariss, 180 Okl. 125, 68 P.2d 417, 418. In the last-named case we held in the second paragraph of the syllabus as follows:
"A notice of tax resale of lands for delinquent taxes in substantial compliance with the statutory requirements is sufficient to support a resale tax deed otherwise valid."
Plaintiff in error asserts that the rule of "strictissimi juris" prevails in cases of this nature, and that by reason thereof the doctrine of idem sonans has no application in support of a tax deed, citing Tintic Undine Mining Co. v. Ercanbrack, 93 Utah 561, 74 P.2d 1184; Henderson v. De Turk, 164 Cal. 296, 128 P. 747. Some of our own opinions are also cited, including Price v. Mahoney, 175 Okl. 355, 53 P.2d 257, and Welborn v. Whitney, supra. Some of those opinions contain expressions to the effect that the statutes must be strictly followed, but those are cases wherein the court concluded that the error therein presented was such as to amount to a "total omission" to do the thing required by statute.
In view of the above-quoted provisions of our statutes we are not at liberty to embrace the rule of "strictissimi juris" in these matters, but as already shown by the above-cited cases from this court, we must construe the statutes to serve the intention of the Legislature.
In the recent case of Collingsworth v. Hutchison, 185 Okl 101, 90 P.2d 416, we had occasion to consider at some length the doctrine of "idem sonans" and apply the same in the matter of notice or service by publication in a civil action. From our discussion there and from the authorities therein found and those given us in the briefs, we observe that due to the variety of fact situations exact precedent is rarely ever available; that where written or printed notice is involved there must be some substantial similarity to the true name, in the sound as pronounced and as observed by the eye; and that the possibility or probability of mere...
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