Moore v. Barker

• Decision Date: 05 December 1939
• Docket Number: Case Number: 28727
• Citation: Moore v. Barker, 97 P.2d 776, 186 Okla. 312, 1939 OK 522 (Okla. 1939)
• Parties: MOORE v. BARKER
• Court: Oklahoma Supreme Court

1939 OK 522

97 P.2d 776

186 Okla. 312

MOORE v. BARKER

Case Number: 28727

Supreme Court of Oklahoma

Decided: December 5, 1939

Syllabus

¶0 1. TAXATION--Invalidity of tax resale and deed as to property omitted from tax sale and resale notices.

Where property, not included in the original tax sale notice or tax resale notice, is sold at resale, such resale and the deed based thereon are void as to the property so omitted.

2. TAXATION--Invalidity of certificate tax deed based on tax sale from which property had been redeemed.

Where property has been redeemed from tax sale under authority of section 12751, O. S. 1931, 68 Okla. St. Ann. § 392, and a valid redemption certificate is issued by the county treasurer, a subsequent certificate tax deed, based on the tax sale from which redemption had been made, is void.

3. APPEAL AND ERROR--Harmless error in admission of secondary evidence to prove resale tax deed under issues in quiet title action.

Where defendant in his answer does not deny the execution, delivery, or recording of a resale tax deed, but affirmatively alleges that such deed is void, and no issue is made as to its execution, the error, if any, in the admission of secondary evidence to prove such deed without proper predicate being laid is harmless error.

4. QUIETING TITLE--Action not maintainable by one having no interest in title.

A person who has no interest in the title to real estate cannot maintain an action to remove a cloud upon the title to such real estate, or to quiet title thereto.

5. SAME--TAXATION--Holder of void resale tax deed held without title to lots not advertised for sale or resale entitling him to recover in quiet title action regardless of validity of defendant's title.

Where the holder of a resale tax deed, covering several lots, void as to some of the lots because of failure to include same in the original tax sale notice or tax resale notice, redeems the land from a subsequent tax sale and receives a certificate of redemption, and thereafter the county treasurer issues a certificate tax deed to another, based upon said subsequent sale, held, the void resale deed holder has no title, either legal or equitable, as to the lots not advertised for sale or resale, and he cannot recover in an action to quiet title to such lots, regardless of the validity of defendant's title.

Appeal from District Court, Oklahoma County; George H. Giddings, Jr., Judge.

Action by H. H. Moore against William Barker. From adverse judgment, plaintiff appeals. Affirmed in part, reversed in part, remanded with directions.

Leo G. Mann and C. J. Brown, both of Oklahoma City, for plaintiff in error.

T. K. Quillen and C. E. McAfee, both of Oklahoma City, for defendant in error.

HURST, J.

¶1 This is an action by Moore, holder of a resale tax deed, against Barker, holder of a certificate tax deed, to quiet title to ten lots in one block and eight lots in another block in Oklahoma City and to cancel the certificate tax deed thereto held by Barker. From a judgment in favor of defendant, the plaintiff appeals.

¶2 The case arose under the following circumstances: In 1922, the lots were purchased at a tax resale by one Spencer. The resale deed was on a form held valid on its face in Reeves v. Caldwell (1937) 179 Okla. 501, 66 P.2d 75; Patterson v. Myers (1938) 183 Okla. 601, 83 P.2d 846, and McKnight v. Frey (1938) 184 Okla. 303, 86 P.2d 985, and was duly recorded in 1922. In November, 1934, the lots were sold to the county at the tax sale for the 1933 taxes, and in February, 1936, the tax certificates were purchased by Barker. On January 16, 1937, Spencer, the holder of the resale deed, conveyed the lots by quitclaim deed to Moore. On January 28, 1937, Moore redeemed the lots from the 1934 tax sale, and a redemption certificate was issued to him. Thereafter, on March 2, 1937, a tax deed was issued to Barker on the 1934 tax sale certificates he had purchased from the county. This deed was issued pursuant to a peremptory writ of mandamus against the county treasurer, in which action Moore was not a party. Moore took possession of the lots after purchasing them from Spencer, and was in possession by tenants on July 29, 1937, when he filed this action against Barker to quiet title and cancel Barker's certificate deed.

¶3 Plaintiff alleged that defendant's certificate deed was void because the lots had been redeemed and a redemption certificate issued before defendant acquired his deed. Plaintiff further alleged that the certificate deed was void because it was issued without notice to plaintiff, but this contention has not been pursued further. The defendant, on the other hand, alleged that the resale tax deed under which plaintiff claimed title was void on its face and for jurisdictional reasons, and therefore he contends that the redemption by plaintiff was without authority of law, and further, that plaintiff had no title under a void deed and could not maintain an action to quiet title.

¶4 1. The first question is whether the resale tax deed under which plaintiff claims title is a void deed.

¶5 (a) As to the contention that it is void on its face because of the failure to contain certain recitals, it is sufficient to say that the cases above cited, approving deeds in identical form, are decisive of this matter.

¶6 (b) But defendant also contends that the resale deed is void for the failure to advertise certain lots at the original sale and at the resale. The resale deed recites that "such real estate was thereafter advertised for sale by the treasurer of said county, on the first Monday of November, 1918, 1919, to pay said delinquent taxes." It is therefore presumed that the lots were duly advertised, and the burden is on defendant to overcome this presumption by clearly pleading and clearly proving a total failure to advertise the lots in question. Section 12760, O. S. 1931, 68 Okla. St. Ann. § 452. Defendant introduced the testimony of the deputy county clerk to prove the failure to advertise. There is no testimony with reference to any 1918 original sale. But the advertisement of the 1919 original sale appears to be styled "For taxes due and delinquent for the years 1918." We think the tenor of the evidence shows that there was only one original sale involved, that is, the 1919 sale for the 1918 taxes. The deputy county clerk testified that he had charge of the records of resales and the original sales as filed in his office. He produced the record of the November, 1919, original sale and testified that three of the lots involved (lot 32 in block 3 and lots 39 and 40 in block 7) were not included in the published notice of sale. The witness then produced the 1921 resale advertisement and, upon checking the various lots, testified that lots 29, 30, and 40 in block 7 were omitted from the published resale notice.

¶7 Plaintiff argues that the evidence with reference to failure to advertise is extremely sketchy and says that only a small fragment of the advertisement was introduced in evidence. He also says there is no evidence as to a 1918 original sale, and contends...