Michie v. Haas

• Court: Oklahoma Supreme Court
• Writing for the Court: RILEY, J.
• Citation: Michie v. Haas, 272 P. 883, 134 Okla. 57, 1928 OK 53 (Okla. 1928)
• Decision Date: 24 January 1928
• Docket Number: 17935.
• Parties: MICHIE v. HAAS.

272 P. 883

134 Okla. 57, 1928 OK 53

MICHIE v. HAAS.

No. 17935.

Supreme Court of Oklahoma

January 24, 1928

Rehearing Denied Dec. 24, 1928.

Syllabus by the Court.

Where defendant relied on a deed from the county treasurer, the land having been sold for taxes, purchased by the county, and acquired by defendant at a resale by the county, section 9753, Compiled Oklahoma Statutes 1921, and section 6, c. 158 Session Laws 1923, providing that no action shall be commenced by the former owner of the land to recover possession of the land which has been sold for nonpayment of taxes, unless such action shall be commenced within one year after the recording of said deed, are applicable. Held, an action commenced on December 8, 1925, to quiet title as against a resale tax deed executed and recorded on December 6, 1922, falls within the bar of the statute.

Section 9743, Compiled Oklahoma Statutes 1921, provides "Whenever the county treasurer of any county shall bid off any real estate in the name of his county, he shall make a note of such bid and purchase upon his sales record, and if any real estate so purchased by the county shall remain unredeemed for a period of two years from date of sale, and no person shall offer to purchase the same for the taxes penalty and costs due thereon, the county treasurer shall proceed to advertise and sell such real estate at public auction, as herein provided." Held, where the property was "bid in" by the county treasurer for taxes on the 11th day of November, 1920, and was unredeemed and was sold on November 27, 1922, under the Resale Act, a notice by advertisement of such resale will be presumed by reason of the recital in the resale tax deed that the same was "duly and legally advertised for sale at resale for taxes, cost, penalties, and interest accrued on same," by reason of section 9750, "the presumptive evidence" statute, section 9752, the "form" statute, and section 9751, the "liberal construction" statute, and notwithstanding such presumption that the face of the resale tax deed shows the publication required was commenced prior to the expiration of the two-year redemption period provided by section 9743, Compiled Oklahoma Statutes 1921.

Section 9741, Compiled Oklahoma Statutes 1921, contemplates that the record owner or any one having a legal or equitable interest in real estate sold at resale shall have the right to redeem such real estate for a period of two years and such additional time as may intervene prior to the issuance of the resale deed.

A statute must be construed in accordance with the legislative intent, and to ascertain that intent the various provisions of the Legislature must be construed together.

The contrary rule in Going, County Treasurer, v. Green, 103 Okl. 93, 229 P. 521; Cook v. Vincent, 111 Okl. 95, 238 P. 471; Sharum v. Foster, 109 Okl. 218, 235 P. 489; Wright v. Colvin, 96 Okl. 15, 219 P. 923; and Sitton v. Hernstadt, 106 Okl. 140, 233 P. 676-was overruled in Treese v. Ferguson, 120 Okl. 235, 251 P. 91.

Appeal from District Court, Tulsa County; Fred A. Speakman, Judge.

Action by W. T. Michie against Evelyn Haas for possession of, and to quiet title to, real estate. From a judgment for defendant, plaintiff appeals. Affirmed.

Clark, J., dissenting.

Arden E. Ross, of Tulsa, for plaintiff in error.

E. M. Connor and E. Jacobs, both of Tulsa, for defendant in error.

RILEY J.

This action was brought by plaintiff in error, W. T. Michie, on December 8, 1925, against Evelyn Haas to quiet title to lots 35 and 36, block 5, Rosemont Height addition to the city of Tulsa, Okl.

The plaintiff was the owner of said real estate and obtained his title through conveyances from the original allottee of the Creek Nation and various mesne conveyances thereafter, the last of which vested title in plaintiff on April 9, 1912.

The cloud upon plaintiff's title was caused by a tax deed executed by the county treasurer of Tulsa county on December 6, 1922, in pursuance of a resale tax sale made of said lots on November 27, 1922.

The outstanding resale tax deed held by the defendant, Evelyn Haas, shows on its face that said lots were sold at public auction on November 11, 1920, for taxes levied thereon for the year 1919, the land being liable for taxes, and the taxes being duly assessed, and the lots having been advertised for sale for said taxes, and no bidder offering the amount due thereon, the same was bid in by the county treasurer on said date in the name of Tulsa county for the amount due on each parcel-"Lot 35, * * * tax, $6.42, for $40; lot 36, * * * tax, $6.42, for $47"-and the said lots not having been redeemed within two years from date of said sale, the said property was again offered for sale by said county treasurer at resale on the 27th day of November, 1922, after being "duly and legally advertised for sale at resale for said taxes, costs, penalties, and interest accrued on same, * * * and sold to Evelyn Haas, the highest and best bidder," etc.

The judgment of the trial court was for defendant, holding that the resale deed was valid on its face and that the plaintiff is barred by the statute of limitation.

Section 9753, Compiled Oklahoma Statutes 1921, barred the action unless the resale tax deed is void on its face. See, also, section 6, c. 158, Session Laws 1923, providing:

"* * * And twelve months after said deed shall have been filed for record in the county clerk's office, no action shall be commenced to void or set aside said deed." Callander v. Brickner et al., 97 Okl. 37, 222 P. 531.

It is agreed that, according to the ruling of this court, the provision in section 9744, Compiled Oklahoma Statutes 1921, requiring that notice of resale shall be given by the county treasurer once each week for four consecutive weeks preceding the sale, means 28 days, and is computed by excluding the first day of publication and including the day of sale.

It is heretofore set out that the deed in question recited as to the real estate "the same was duly and legally advertised." Note the rule in Treese v. Ferguson, 120 Okl. 235, 251 P. 91:

"A resale tax deed, reciting as to notice of the sale of the lands, the conclusion, 'the same were duly and legally advertised for sale at resale for the taxes,' etc., is not void on its face because of failure to recite also the doing of the prerequisite acts constituting such notice. Such deed, thus containing in substance what section 9750, C. O. S. 1921, requires as to notice, is presumptive evidence in all the courts of this state that all acts and proceedings as to notice were duly performed by the proper officers. * * *"

Thus the aforementioned recital in the deed would be presumptive evidence that notice was given for 28 days prior to sale. Likewise it appears from an examination of the deed that the publication of notice of resale was commenced prior to the expiration of the two-year redemption period, and the sole question remaining as to validity on the face of the deed is whether under the statutes then in force such fact is sufficient to render the deed void.

The statute in force at the date of sale reads as follows:

Section 9732, Compiled Oklahoma Statutes 1921: " Time and Place of Sale. On the first Monday in November in each year * * * the treasurer shall offer at public sale * * * all lands, town lots or other real property which shall be liable for taxes of any description for the preceding year, or years, and which shall remain due and unpaid."

Section 9740, Compiled Oklahoma Statutes 1921: "The county treasurer is hereby authorized at all tax sales made under the laws of this state, in case there are no other bidders offering the amount due, to bid off all or any real estate offered at said sale for the amount of taxes, penalty interest and costs due and unpaid thereon, in the name of the county in which the sale takes place, the said county acquiring all the rights both legal and equitable that any other purchaser could acquire by reason of said purchase."

Section 9743, Compiled Oklahoma Statutes 1921: " Record of Purchase by County-Resale. Whenever the county treasurer of any county shall bid off any real estate in the name of his county, he shall make a note of such bid and purchase upon his sales record, and if any real estate so purchased by the county shall remain unredeemed for a period of two years from date of

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