Meriwether v. Bd. of Com'Rs of Comanche Cnty.

• Decision Date: 07 July 1931
• Docket Number: Case Number: 20153
• Parties: MERIWETHER v. BOARD OF COM'RS OF COMANCHE COUNTY.
• Court: Oklahoma Supreme Court

1931 OK 418

1 P.2d 390

150 Okla. 223

MERIWETHER v. BOARD OF COM'RS OF COMANCHE COUNTY.

Case Number: 20153

Supreme Court of Oklahoma

Decided: July 7, 1931

Syllabus

¶0 1. Limitation of Actions -- Constitutional Law--Validity of Statutes Changing Period of Limitation.

The Legislature may change the statute of limitations by extending or shortening the period of limitation, provided a reasonable time be allowed in which to prosecute existing causes of action. It may not, however, under section 52, art. 5 of the state Constitution, revive an action already barred, nor make the change applicable to actions then pending.

2. Same--Taxation--Action by Person Paying Taxes not Legally Due.

Where a cause of action arises in favor of a person paying taxes not legally due, the limitation begins to run from the day of payment.

3. Same--Action by Purchaser of Invalid Tax Sale Certificate from County.

The statute of limitation did not begin to run against an action brought by the purchaser of a tax sale certificate from the county under section 9739, C. O. S. 1921, to recover taxes paid on land not subject to taxation until after the validity of the tax sale certificate is in some manner challenged as being void.

4. Same--Presentation of Claim Against County not Prerequisite to Suit.

In an action against the county by the purchaser of a void tax sale certificate to recover the amount of taxes paid, it is not essential that a claim therefor be presented for allowance to the board of county commissioners.

Appeal from District Court, Comanche County; E. L. Richardson, Judge.

Action by Gilmer Meriwether against the Board of Commissioners of Comanche County. Judgment for plaintiff for less than sued for, and he appeals. Reversed in part.

Twyford & Smith, Leo G. Mann, and G. Lee Gibbs, for plaintiff in error.

John W. Tyree, Co. Atty., and W. T. Dixon, Asst. Co. Atty., for defendant in error.

HEFNER, J.

¶1 This is an action brought in the district court of Comanche county by Gilmer Meriwether against the board of county commissioners of that county to recover the sum of $ 446.65, the amount paid to the county by him for the purchase of a tax sale certificate on land sold by the county for taxes and subsequent taxes paid by him thereon.

¶2 Plaintiff alleges that the certificate was void because the land which was sold for taxes was restricted Indian land and not subject to taxation.

¶3 Defendant in its answer pleaded the statute of limitations, and further alleged that the suit was prematurely brought, in that no claim was ever filed by plaintiff with the board of county commissioners.

¶4 The evidence discloses that the county treasurer sold the land in question in the year 1920, for delinquent taxes for the year 1919, and that it was restricted Indian land. The land was bid in by the county, the plaintiff paid the taxes in 1922, and received from the county treasurer a tax sale certificate. He thereafter paid all subsequent taxes on the land up to and including the year 1926. No application was ever made by him for a tax deed. The trial court sustained defendant's plea of limitations as to all taxes paid prior to June, 1923, and overruled it as to all subsequent payments.

¶5 Plaintiff contends that the judgment should be reversed for the reason that no part of his claim was barred by any statute of limitations. We agree with this contention. Plaintiff's certificate was not assailed prior to the filing of this suit. At the time the land was sold for taxes, section 9739, C. O. S. 1921, was in force. This section provides:

"When land has heretofore been or shall hereafter be sold, on which no tax was due, and a tax sale certificate issued by the treasurer thereon, the county shall save the purchaser or his assigns harmless by refunding and paying to him or them the original purchase money paid thereon, together with the subsequent indorsements, with interest from date of payment at six per cent. per annum."

¶6 It will be noticed that, while this section gives the purchaser of a tax sale certificate a right to recover against the county in cases of this kind, it provides no time in which the action must be commenced. This section, however, was amended in 1925, chapter 30, Session Laws 1925. The amendment, among other things, provides that actions of this kind must be brought within five years after the purchaser of the tax sale certificate might have applied for and obtained a tax deed, had the sale been valid. The trial court held that prior to the passage of this act, the right of action of the purchaser of a tax sale certificate accrued upon each payment as made to the county treasurer, and that an action to recover the amount paid was barred unless brought within two years from the date of payment, and further held that the action as to all payments made more than two years prior to the passage of the act of 1925, were barred, and sustained the plea of limitation as to such payments, but overruled it as to all other payments, holding the act to 1925 applicable as to such payments. If the two-year statute applied prior to the 1925 enactment, the judgment is correct, as the Legislature cannot, by a subsequent enactment, revive a cause of action already barred; however, if no part of plaintiff's cause of action was barred at the time of the passage of the act, the limitation as therein provided would govern.

¶7 In 17 R. C. L. page 672, the following rule is announced:

"Not only may the Legislature, as a general rule, establish a new limitation where none existed before, and make it apply to a cause of action against which there was no such statute in existence when it was created, but it may also change an existing statute, and shorten the periods of limitation, provided a reasonable time is allowed for actions to be brought."

¶8 The rule there announced is applicable here with the qualification that the Legislature could not, under section 52, art. 5 of the state Constitution, by changing the period of limitation, revive a cause of action already barred, nor make the change applicable to cases then pending. Atchison, T. & S. F. Ry. Co. v. Eldredge, County Treas., 67 Okla. 110, 169 P. 1071. The case of Broadwell v. Board of Com'rs of Bryan County, 88 Okla. 147, 211 P. 1040, is cited in support of the judgment. It is there said:

"The plaintiff filed a claim with the board of county commissioners for refund of certain money alleged to have been paid as taxes by different members of the Chickasaw and Choctaw Tribes of Indians upon certain lands that were exempt from taxation. Said claims had been assigned to plaintiff, and disclosed that the payments were made in the years 1909, 1910, 1911, and prior to January 1, 1912. The claim or account was not presented to the county commissioners until the 24th day of March, 1914. Held, under and by virtue of section 1570, Rev. Laws 1910, said claims were barred by the statute of limitations, and the commissioners had no authority to allow the same. Held, further, the cause of action accrued upon each claim immediately after payment of the same to the county treasurer."

¶9 The opinion is based on section 1570, Rev. Laws 1910, being section 5763, Comp. Stats. 1921, which provides:

"No account against the county shall be allowed

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