Lowenstein v. Sexton

• Decision Date: 14 February 1907
• Citation: 90 P. 410,18 Okla. 322,1907 OK 39
• Parties: LOWENSTEIN v. SEXTON.
• Court: Oklahoma Supreme Court

90 P. 410

18 Okla. 322, 1907 OK 39

LOWENSTEIN v. SEXTON.

Supreme Court of Oklahoma

February 14, 1907

Rehearing Denied June 4, 1907.

Syllabus by the Court.

A tax deed which does not show upon its face the amount for which the tract or parcel of land which it purports to convey was sold is for that reason void.

[Ed Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, § 1514.]

The statute of limitations contained in section 5668, St. 1893 has no application to an action to quiet title, because it is not an action to recover possession of the premises.

[Ed Note.-For cases in point, see Cent. Dig. vol. 33, Limitation of Actions,§ 75.]

Error from District Court, Oklahoma County; before Justice B. F. Burwell.

Action by Isaac Lowenstein against Perry Sexton. Judgment for defendant, and plaintiff brings error. Affirmed.

On the 3d day of November, 1890, defendant in error, Perry Sexton, procured a deed to lot No. 21, in block 35, in Oklahoma City, Oklahoma county, territory of Oklahoma, from the duly appointed, qualified, and acting trustees of the townsite of said Oklahoma City, and has ever since been the owner of said lot, holding the original government title thereto, as shown by the said trustee's deed, and which was filed for record on the day of its issue, to wit, November 3, 1890. Soon after procuring the title to said lot Sexton removed from the territory, and up to about the time of the trial of this cause had not been a resident of this territory. The taxes on said lot for the year 1893 not having been paid, on September 3, 1894, the lot was sold for said tax of 1893. No redemption from said tax sale was made, and on December 17, 1896, a tax deed to said lot, embracing also several other lots in said city not contiguous to said lot or to each other, was issued by the county treasurer of said county to Isaac Lowenstein, the plaintiff in error; he being then the holder of the several certificates to said lots. The said tax deed, so far as the same is material in this case, is in the following words: "Whereas, Isaac Lowenstein did, on the 13th day of October, 1896, produce to the undersigned, Jno. E. Carson, treasurer of the county of Oklahoma, in the territory of Oklahoma, six certificates of purchase in writing bearing date of the 3d day of September, 1894, signed by J. M. Brogan, who at the last-mentioned date was treasurer of said county, from which it appears that Isaac Lowenstein did on the 3d day of September, 1894, purchase at public auction at the office of the county treasurer, in said county, the tracts, parcels, or lots of land lastly in this indenture described, and which lots were sold to Isaac Lowenstein for the sum of one hundred thirty-three and 75/100 dollars, being the amount due on the following tracts or lots of land returned delinquent for non-payment of taxes, costs and charges for the year 1893, to wit: Lots numbered 19-20-21 in block number 35 in Oklahoma City, O. T., and the following described parcels of land located in south Oklahoma addition to Oklahoma City, to wit: The north 60 feet by 100 feet of lots numbered 29-30-31 and 32 in block number 22, and lots number 19 and 32 in block number 9." This deed was filed for record on December 17, 1896. Very soon after receiving this tax deed the plaintiff in error erected a fence around the lot in controversy, and built a sidewalk along the front, and has since renewed both the fence and sidewalk and done some filling in on the lot. No building has ever been erected upon the lot, and it has not been otherwise occupied or possessed. At the date of trial there was no fence around the lot, and only the brick sidewalk in front remained to evidence the acts of ownership by plaintiff in error. On November 23, 1901, Lowenstein commenced an action in the district court of Oklahoma county against Perry Sexton and his unknown heirs to quiet title to said lot. In that action service was obtained by publication, and on May 8, 1903, had a decree of said court quieting his title to said lot. At the following term of said court, and on Noember 25, 1903, Perry Sexton (the only defendant named in said action) filed and served notice of his application to set aside the said judgment obtained against him by default and to be let in to defend said cause, which application was by the court granted, and, defendant having filed his answer in said cause and the issues therein being fully made up, the cause was set for trial on November 2, 1904. Thereafter, on the 16th of November, 1904, the cause came regularly on for trial before the court without a jury, and at its conclusion the defendant demurred to the evidence offered on the part of the plaintiff, which demurrer was by the court sustained. Judgment was rendered for the defendant setting aside plaintiff's tax deed, and quieting the title to said lot in the defendant, to all of which plaintiff excepted. Motion for new trial was duly filed and overruled, to which plaintiff also excepted. From the judgment so rendered and the order overruling plaintiff's motion for new trial, the cause comes to this court by case-made.

Burford C.J., and Irwin, J., dissenting.

James L. Brown, for plaintiff in error.

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