Kizzire v. Sarkeys, 39073

• Decision Date: 09 May 1961
• Docket Number: No. 39073,39073
• Parties: Randolph KIZZIRE, Eddie Hembree and Deloys Hembree, Plaintiffs in Error, v. S. J. SARKEYS, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 1082

361 P.2d 1082

1961 OK 111

Randolph KIZZIRE, Eddie Hembree and Deloys Hembree Plaintiffs in Error, v. S. J. SARKEYS, Defendant in Error.

No. 39073.

Supreme Court of Oklahoma.

May 9, 1961.

Syllabus by the Court

1. In order to apply 12 O.S.1951 § 93 in bar of an attack upon a void tax deed, it must be shown by the evidence that the holder thereof has recorded his tax deed and has been in possession of the land therein described for five continuous years.

2. Evidence examined and held that possession of the land involved had not been held as above stated, and therefore the statute of limitations had no application.

3. The assessment of two separately owned tracts of land together is a void assessment, and the sale of one of said tracts of land for the taxes assessed against both is a void sale.

4. The inclusion of taxes levied under a void assessment is not 'trivial' or 'unintentional' under the rule validating such sales where no other objection appears than small miscalculation.

Appeal from the District Court of Hughes County; Bob Howell, Trial Judge.

Action to quiet title brought on behalf of base title holder against holder of tax deed. From an adverse decision, plaintiffs appeal. Reversed and remanded with directions.

King and Wadlington, By Carloss Wadlington, Ada, for plaintiffs in error.

Woodford & Ballinger, Holdenville, for defendant in error.

JOHNSON, Justice.

This action was commenced February 2, 1956, by Randolph Kizzire against S. J. Sarkeys, Eddie Hembree, Deloys Hembree, Hal Welch, June Hembree, now McLish, unknown heirs of Edward S. Hembree, Board of County Commissioners, County Treasurer and County Assessor, all of Hughes County, Oklahoma, to quiet title to forty acres of land described as North Half (N/2) of South Half (S/2) of Southeast Quarter (SE/4) of Section 35, Township 4, North, Range 9 East, in Hughes County, Oklahoma.

The petition alleged ownership and possession of an undivided one-third interest in plaintiff, the remaining two-thirds interest being vested in defendants Eddie Hembree and Deloys Hembree. It further alleged that the defendant S. J. Sarkeys holds a resale tax deed upon such land dated May 22, 1945, and recorded May 29, 1945. The petition alleged this resale deed to be void for several reasons set forth therein. Those pertinent to the issues will be hereafter discussed.

The county officers answered by a general denial. The defendant Sarkeys filed an answer and cross-petition wherein he pleaded the statute of limitations; that he held under the resale deed in question, and by way of cross-petition asked that his title be quieted. The answer of the defendants Eddie Hembree and Deloys Hembree admitted the allegations of plaintiff's first cause of action as to ownership of the land and joined in the prayer of plaintiff's petition in the first cause of action to void the deed and quiet title.

The second cause of action for partition is not involved in this appeal.

Upon the issues thus formed, trial was had and judgment was rendered for the defendant Sarkeys quieting his title, from which judgment plaintiff appeals.

There are two questions involved in the appeal; namely, the application of the statute of limitations and the validity of the tax deed.

The statute of limitations is an affirmative defense and therefore the burden of producing evidence to make its application clear rests upon the one relying thereon.

There is no dispute in this record that the base title to the land involved was vested one-third in plaintiff and one-third in each of the defendants, Eddie Hembree and Deloys Hembree, all of whom are plaintiffs in error.

We have repeatedly announced the conditions under which the statute 12 O.S.1951 § 93 is applicable to suits of this character.

Where the base title holder is in possession, the five-year statute does not run in favor of the void tax deed holder. Williams et al. v. Bailey, Okl., 268 P.2d 868; Jenkins v. Frederick, 208 Okl. 583, 257 P.2d 1058.

When the void tax deed holder records his deed and has been in possession for five continuous years, the statute bars attack upon his void deed. Boone v. Claxton, Okl., 269 P.2d 980; Fletcher v. Twyford, Okl., 267 P.2d 554, and McCasland v. Parrish, Okl., 266 P.2d 450.

When the land is vacant, the constructive possession is in the valid title holder. Williams v. Bailey, supra; Morton v. Van Orsdol, 203 Okl. 394, 222 P.2d 520, and Sarkeys v. Payte, Okl., 274 P.2d 539.

The sum of the above opinions is that in order to make the statute applicable there must be a holding of possession by the void tax deed holder for five years under the same conditions as have been applied in cases involving adverse possession under the fifteen year statute.

Let us look at the facts as disclosed by the record. The only one favorable to the tax deed holder is the payment of some of the subsequent taxes. This is not controlling. Anderson v. Francis, 177 Okl. 47, 57 P.2d 619.

Concerning the evidence of actual possession, we need only refer to the evidence of Sarkeys:

'Q. Now, Mr. Sarkeys, this land is open land, is it not? A. Yes, Sir.

'Q. Rough land? A. Yes, sir.

'Q. And have you exercised any supervision or dominion or control over it? A. Oh, my field man has the charge--my field man has the renting charge of all the different lands I have and he--every time go there and he try to rent it--I have some land joining to--you know, in that neighborhood, (interrupted)

'A. * * * and every time he try to rent it, he couldn't find a renter because the land is rough and there's no sale for it, and sometimes they use it anyway, they're gonna use it anyway without paying.'

The evidence concerning the easement granted as showing possession is of no probative value. The date of the easement is not shown in the record, and there is no evidence that the electric line is located on the land in controversy. Further than this, the copy of the said cited easement only purports to cover a portion of the land involved. We attach no importance to this evidence as proving possession.

This was all of defendant's evidence concerning possession. On the other hand, there is evidence in the record showing this land to be fenced with adjoining land not belonging to plaintiff, and that Sarkeys demanded rent from the occupant, which rent was not paid.

Burden of establishing bar of statute of limitations is upon party asserting such defense. Peppers Refining Co. v. Spivey, Okl., 285 P.2d 228 and Harper-Turner Oil Co. v. Bridge, Okl., 311 P.2d 947.

We think it clear from the above that defendant Sarkeys never was in possession of the land, and therefore the statute of limitations has no application.

We come now to the remaining question concerning the validity of the tax deed.

The evidence shows two things without dispute: 1. For certain years this land was assessed with an adjoining tract of 120 acres, the title to the two tracts being in different owners. 2. That this tract was sold at resale for the taxes due on the two tracts.

The county treasurer testified that this land was sold at the 1945 resale for taxes from 1923 to 1943, inclusive, in the sum of $1,279.47; that this sum included taxes on other land for the years 1923 to 1933, inclusive, and for the year 1938; that these taxes covered those on the forty acres involved here and the taxes on an additional 120 acres.

The record further shows without dispute that the 160 acres mentioned had formerly belonged to Edward S. Hembree. On April 5, 1923, Hembree conveyed this 120 acres to J. F. Locke, retaining the forty acres, the subject of this litigation. From that time on, these two tracts were never owned by the same person.

It is therefore apparent that these two tracts were assessed together, and that the tract herein involved was advertised and sold for the total taxes due on both tracts for the years set out above.

This court is committed to the rule that the assessment of two tracts of land, separately owned, as a unit is a void assessment. Clark v. Prince, 191 Okl. 551, 131 P.2d 761, 144 A.L.R. 337; Evans v. Neal, 198 Okl. 515, 180 P.2d 661, and Egan v. Henshaw, 197 Okl. 83, 169 P.2d 298, 299.

The assessment being void for the years named, no taxes were due for those particular years. As was said by the court in Egan v. Henshaw, supra:

'We have no doubt that in such allegations there lies a prima facie showing of a void assessment which is equivalent to no assessment for the purposes of the tender statutes supra. In Hill v. Henry, 190 Okl. 413, 124 P.2d 405, we pointed out that no tender would be required when the land has not been assessed.'

Such a holding means that under a void...