Lind v. Stubblefield

• Decision Date: 26 March 1929
• Docket Number: 18191.
• Citation: 282 P. 365,138 Okla. 280,1929 OK 143
• Parties: LIND v. STUBBLEFIELD.
• Court: Oklahoma Supreme Court

282 P. 365

138 Okla. 280, 1929 OK 143

LIND v. STUBBLEFIELD.

No. 18191.

Supreme Court of Oklahoma

March 26, 1929

Rehearing Denied June 11, 1929.

Second Petition for Rehearing Denied Oct. 8, 1929.

Syllabus by the Court.

Comp Okl. Stat. 1921, § 9753, requiring actions to recover possession of real estate and to test the validity of or to avoid a tax sale, to be commenced within one year after the recording of the tax deed does not apply as to jurisdictional matters or vital defects in proceedings relating to the tax sale.

An action to set aside a tax deed for failure of the certificate holder to serve notice of his intention to apply for a tax deed, as required by section 9749, Comp. Okl. Stat. 1921, is not within section 9753 of the same statutes prescribing a one-year limitation; the omission complained of being a jurisdictional defect and rendering the tax deed void.

"So long as the original owner of land which has been sold for taxes remains in undisturbed possession of it, the statute of limitations does not run against him or prevent the maintenance of a suit to set aside the tax sale or remove the cloud on his title."

Commissioners' Opinion.

Appeal from District Court, Okfuskee County; John L. Norman, Judge.

Action by Johnnie Stubblefield against F. M. Lind. Judgment for plaintiff, and defendant appeals. Affirmed.

Twyford & Smith and Leo G. Mann, all of Oklahoma City, for plaintiff in error.

Anglin & Stevenson and Forrest M. Darrough, all of Holdenville, for defendant in error.

HALL C.

This was an action by Johnnie Stubblefield, defendant in error and plaintiff in the court below, against F. M. Lind, defendant and plaintiff in error herein, to quiet title and cancel a certain tax deed which defendant had obtained and placed on plaintiff's land. This appeal is from an order overruling defendant's demurrer to the petition, and judgment rendered on the petition.

The plaintiff alleged that at all times since the land was allotted to him he had been the owner of the premises and in possession thereof. He alleged that the purported tax deed was void and voidable on several distinct grounds: (1) That the land was not properly listed for taxes; (2) was not properly advertised for sale for taxes as provided by law (3) that no sufficient notice of the delinquent tax sale was given; (4) that no notice was given him by the defendant of his intention to demand a tax deed; and (5) that the land was sold while plaintiff was a minor, and that 18 per cent. interest had been charged instead of the lower statutory rate.

The plaintiff did not commence his action to quiet title and cancel this tax deed within one year after the recordation of the tax deed. To be correct, the plaintiff filed his action before the expiration of one year, but on failing to get service upon the defendant he did not obtain constructive service of process within 60 days after the supposed statute of limitations had run, as provided in section 187, Comp. Okl. Stat. 1921.

The defendant interposed a demurrer to the petition, which demurrer was overruled. The defendant elected to stand on his demurrer, and judgment was rendered canceling the tax deed and quieting the title to the property in plaintiff and against the defendant.

Plaintiff in error rests his case upon two propositions: First, he contends that plaintiff's cause of action was barred by the short statute of limitations (section 9753, Comp. Okl. Stat. 1921), which provides a one-year limitation for bringing actions to obtain possession of real estate sold for taxes, or for the avoidance of the tax deed. Second, that the tender made by plaintiff in his petition was insufficient, and that his petition was demurrable on that ground.

The plaintiff tendered by a recital in his petition all taxes, interest, and penalties thereon incurred by defendant upon the cancellation of the tax deed and quieting his title. There were no reservations in this tender, and we deem and consider the language of the tender sufficient even in a case where a tender was required. But, in this case and in all cases where a tax deed is void, a tender of the amount of taxes, interest, penalties, etc., paid by the defendant is unnecessary. This court has passed on that question too many times to require a citation of authorities. The allegations in the petition are to the effect that the tax deed is void. Upon a demurrer we must accept those allegations as true.

The other proposition, that plaintiff's cause of action is barred by the running of the statute of limitations, is without merit, for two reasons: First, plaintiff alleged in his petition, at least one jurisdictional defect, to wit, the failure of the tax certificate holder to give notice to the owner of the premises of the intention to demand a tax deed.

In this connection, counsel for defendant contends that a tax deed under our statutes is void only under any one of the following conditions: "(1) If the land was not taxable. (2) If the tax had been paid. (3) If no sale of any kind had ever been held. (4) If the deed shows upon its face that the treasurer was without any power to make the sale."

The above statement is good in so far as it goes, and is an admission much beyond the ordinary admission of a person defending a tax title.

A tax deed that is absolutely void either on its face or absolutely void otherwise does not cut off the rights of the original owner of the land to litigate its validity, when such action is commenced more than one year after the deed is recorded, even though the tax title purchaser has been in possession of the premises during the entire period of time covered by the deed. A deed is void as to prevent the operation of the short statute of limitations, when there is a fundamental or jurisdictional defect in the proceedings, either disclosed on the face of the deed or upon the records of the proceedings. This matter is fully set forth in 37 Cyc. pp. 1508, 1509, as to what matters are not cured by the statute. The text is as follows:

" Defects Cured by Limitations-(A) In General. After a title has been held under a tax deed for the prescribed length of time, all irregularities, informalities, and defects of form are cured, and thereafter no questions can be raised as to the validity of the tax proceedings, except those which concern the power and jurisdiction of the taxing officers or go to the very groundwork of the proceedings, and those which concern the fraud or misconduct of the parties. If the requisite notice of the expiration of the time allowed for redemption is not given, or is given to the wrong person, or is radically insufficient, this fault will not be cured by the statute, although it is otherwise as to a mere defect in the proof of service of such notice." (Italics ours.)

Ruling Case Law, vol. 26, pp. 443, 444, states the rule in very comprehensive language as follows:

"A majority of the courts in which the question has arisen have taken the further position that a short statute of limitations applies only to sales invalid because of mere technical defects and irregularities in the proceedings, and that possession under such a statute will not sustain a deed that is valid on its face, if there were jurisdictional or fundamental defects in the sale which rendered the proceedings absolutely void, or where the land was not subject to taxation, or where the assessment itself was void, or where there had not been any sale, or the collector had no authority to sell the land. So also, it is generally held that the purchaser does not acquire title under such a statute if the taxes for which the property was sold had in fact been paid, or if the land has been redeemed from the sale, or if there is a material variance in the description in the deed and that in the assessment list."

In the present case the plaintiff alleged a failure of notice; that is, a failure to give the owner the written notice provided by section 9749, Comp. Okl. Stat. 1921. Notice in this connection is analogous to process in the courts; and it is well known that a judgment, even so solemn a document as it is, is absolutely void unless the defendant has been served with process, with personal service, or some substituted service, provided by law. Otherwise he is deprived of his property without due process of law. And a judgment is equally as void, where it recites on its face that the defendant has been served with regular process, as any other void judgment, when the judgment roll or the proceedings disclose that the defendant has not been served with process. A judgment of this character is void, absolutely void, and can be stricken down at any time. Pettis v. Johnston, 78 Okl. 277, 190 P. 681.

The fact that the deed in the present case recited that proper notice was given did not bolster the title. The invalidity of a tax title or the rights of the owner of land must depend upon a more substantial basis than a mere recital in a deed. If certain vital requirements are lacking in a proceeding, their necessity cannot be removed, and a fundamentally defective title cannot be made a good title by simply drafting a good and proper tax deed.

Apparently until the present case this question, presenting precisely this state of facts, was never before this court. However the question of...