Ludeman v. Armbruster

• Decision Date: 05 February 1946
• Docket Number: 32087.
• Citation: 165 P.2d 835,196 Okla. 452,1946 OK 38
• Parties: LUDEMAN v. ARMBRUSTER et al.
• Court: Oklahoma Supreme Court

165 P.2d 835

196 Okla. 452, 1946 OK 38

LUDEMAN v. ARMBRUSTER et al.

No. 32087.

Supreme Court of Oklahoma

February 5, 1946

Appeal from District Court, Okmulgee County; W. H. Blackbird, Judge.

Action by C. D. Armbruster and wife against B. W. Ludeman to cancel a resale tax deed. From an adverse judgment, defendant appeals.

Affirmed.

Syllabus by the Court.

1. In an action to cancel tax deed where nonpayment of delinquent taxes is chargeable to misinformation or miscalculation of tax collector, on inquiry by owner of realty, and owner acting in good faith under such misinformation or miscalculation, and justifiably relying thereon, has made reasonably diligent effort to discharge his realty from the tax burden, any tax deed issued against the property so long as the owner remained in ignorance of another or greater tax burden will be treated as subject to cancellation on equitable consideration, upon full money tender.

2. In cases of equitable cognizance the appellate court will examine and weigh the evidence, but the findings and judgment of the trial court will not be disturbed on appeal unless it appears that such findings and judgment are clearly against the weight of the evidence.

3. The homestead interest is a creature of the Constitution and the statutes, and is jointly vested in the husband and wife for the benefit of themselves and family without regard to which spouse owns the title to the land.

4. Where title is in the husband, and husband and wife institute an action to set aside a resale tax deed to the homestead the husband and wife are joint parties and have a joint interest in the action within the meaning of 12 O.S.1941 § 385, Subd. 3, and the wife is a competent witness to testify in the action concerning her inquiries and attempts to pay the taxes on the homestead.

E. F Maley, of Okmulgee, for plaintiff in error.

Steele & Boatman, of Okmulgee, for defendants in error.

DAVISON Justice.

This action was brought by C. D. Armbruster and Vera Bernice Armbruster, husband and wife, defendants in error hereinafter called plaintiffs, against B. W. Ludeman, plaintiff in error, hereinafter called defendant, to cancel a resale tax deed covering the east 40 feet of let 6, block 5, Highland View Addition to the City of Okmulgee, Okl. The matter was tried to the court and from a judgment canceling the resale tax deed the defendant appeals to this court.

The evidence developed that lot 6 was 100 feet wide and that title was taken in the name of C. D. Armbruster by warranty deed dated August 5, 1933 and that he had been in possession since that date either personally or by tenant; that on December 3, 1935 the plaintiffs gave a mortgage on the west 60 feet of said lot to the American Exchange Bank, Henryetta, Oklahoma, for $2,500 to secure an FHA loan and that the bank paid the taxes on the entire lot for the years 1937, 1938, 1941 and 1942 and only on the west 60 feet for the years 1939 and 1940. This left the taxes on the east 40 feet unpaid for the years 1939 and 1940. The mortgage was paid and released on June 22, 1943.

The plaintiff, Vera Bernice Armbruster, over objection of defendant as to her competency, testified that on April 1, 1943 the plaintiffs moved into the property; that on December 30, 1943 she went to the county treasurer's office and told a deputy she wished 'to pay all the taxes against the property' and asked the deputy to check all the taxes against the property; that the deputy went to the books and figured the amount and she paid the amount given and took a tax receipt therefor. The check and receipt were introduced in evidence and the receipt reflects payment of the 1943 tax on lot 6 with homestead exemption allowed. The witness stated the bank had been paying the taxes and that they had paid the mortgage and wanted to make certain there was no mistake in the taxes. Under repeated examination and cross-examination the witness stated she asked for all the taxes. The witness further stated she was sent by Mr. Armbruster to pay the taxes, and that she was ready, willing and able to pay all the taxes she was told were due.

It was testified that the first knowledge plaintiffs had of any delinquent taxes and of the resale tax deed was when defendant came to the premises after obtaining the tax deed.

The plaintiffs in their petition tendered payment of taxes, penalties, costs and interest necessary to redeem from tax sale. They also tendered payment to the county treasurer prior to filing suit and tendered payment at the trial. The defendant demurred to the evidence of plaintiffs and the court reserved his ruling. The defendant thereupon introduced his evidence.

The defendant introduced in evidence a resale deed for resale had May 8, 1944 and recorded June 2, 1944 covering the east 40 feet of lot 6 with recited consideration of $1 and based on original sale of 1939 and 1940 taxes. The deputy county treasurer who waited on Mrs. Armbruster stated she did not remember the conversation at the time the 1943 taxes were paid. The witnesses' testimony was contradictory as she stated a request for all taxes at that time...