Owens v. Williams
| Decision Date | 18 May 1937 |
| Docket Number | Case Number: 26323 |
| Parties | OWENS et al. v. WILLIAMS et al. |
| Court | Oklahoma Supreme Court |
¶0 1. MORTGAGES - Right of Mortgagee to Acquire Title to Premises Through Tax Deed.
In the absence of an obligation on the part of the mortgagee to pay taxes, a person holding a mortgage upon real property may acquire title to the mortgaged premises by purchase at tax sale and obtaining tax deed therefor.
2. SAME - Taxation - Evidence Held not to Show Fraud in Procurement of Tax Deed.
Record examined. Held: allegations of fraud in procurement of tax deed not sustained by the evidence.
3. APPEAL AND ERROR - Change of Theory of Case on Appeal not Permissible.
A case will not be reviewed on appeal upon a theory not presented to the trial court.
Appeal from District Court, Hughes County; Geo. C. Crump, Judge.
Action by O.O. Owens and others against R.H. Williams and others to cancel tax deed. Judgment for defendants, and plaintiffs appeal. Affirmed.
B.F. Davis and J.A. Patterson, for plaintiffs in error.
Orr & Woodford, for defendant in error R.H. Williams.
¶1 This action was commenced in the district court of Hughes county by plaintiffs in error against the defendant in error Williams, and Otho Harrod, George M. Taylor, and the First National Bank of Holdenville, to cancel a certain certificate tax deed executed to and then held by Williams upon an 80-acre tract of land located in said county. The parties are referred to herein as they appeared at the trial, or by name.
¶2 Plaintiffs were the owners of certain undivided interests in and to the oil, gas, and mineral rights in and under said premises; the bank was the owner of a mortgage on the entire tract, which mortgage was inferior to the interests of plaintiffs; Williams was a director in said bank, but was not an officer thereof; Taylor was an active executive officer of the bank, and Harrod was the record owner of the land. Plaintiffs charged that the tax deed was void by reason of an alleged conspiracy entered into between Williams, Taylor, and the bank for the purpose of defrauding plaintiffs of their interest in the premises. They allege, further, that the tax deed is void on account of certain alleged fatal defects appearing in the proceedings leading up to the issuance thereof.
¶3 The trial court held against plaintiffs' contentions and rendered judgment for defendant Williams sustaining his deed. The other defendants were in default, and plaintiffs have appealed.
¶4 The propositions presented under the assignments here are, first, that the trial court erred in failing to find a conspiracy as alleged and in not holding the tax deed void by reason thereof; and, second, that the purported assignment of the tax certificate, upon which the deed was based, from the county treasurer to one W.O. Howell, and Howell's assignment thereof to defendant Williams, were void, thereby rendering the deed void.
¶5 Plaintiffs assert that Williams held the tax certificate for the bank and that he and the bank, acting through Taylor, designedly misled plaintiffs in order to deprive them of their right to redeem the land from the tax sale.
¶6 The evidence is that the plaintiff Owens, after service of statutory notice of intention to apply for deed had been served upon some of the interested parties, attempted to enter negotiations with Williams for the purchase of the certificate. Williams refused to sell and advised Owens to redeem the land at the county treasurer's office if he so desired. Subsequently Owens saw Taylor and attempted to enter into an arrangement with the bank whereby plaintiff would pay half the taxes if the bank would agree to pay the other half. This the bank refused, and advised Owens that the certificate was a matter of personal concern to Williams and that the bank had no interest therein except to see that the same remained in the hands of parties friendly to the bank.
¶7 It is shown that some time in the latter part of 1931 Taylor assured Owens that the tax deed would not issue until proper notice was...
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