Parks v. Lyons, Case Number: 27712
| Decision Date | 18 October 1938 |
| Docket Number | Case Number: 27712 |
| Citation | 183 Okla. 529,1938 OK 528,83 P.2d 573 |
| Parties | PARKS v. LYONS |
| Court | Oklahoma Supreme Court |
¶0 1. TAXATION - Invalidity of Tax Deed Issued to Assignee of Tax Sale Certificate Where Acknowledgment to Assignment Taken Before Notary Whose Commission Had Expired.
Where a certificate tax deed is issued to an assignee of the tax sale certificate, and the acknowledgment to the assignment was taken before a notary public whose commission had expired prior to the date of the acknowledgment, the tax deed based thereon is void.
2. SAME - Valid Assignment of Certificate Necessary to Validity of Deed.
Where the assignee of a tax sale certificate claims title under a certificate tax deed based thereon, a valid assignment of the certificate is necessary to the validity of the deed.
3. TAXATION - Compliance With Tender Statute as Condition to Presenting Defense to Tax Deed - Payment of Amount Due Against Land as Prerequisite to Judgment Invalidating Deed.
Under sections 12761 and 12763, O. S. 1931 (68 Okla. St. Ann. secs. 453 and 455), a defendant asking affirmative relief against a tax deed must, in his cross-petition or answer attacking the deed, tender all the taxes, interest, penalty, costs and expenses assessed against the land. The tender is required in all cases where the land is liable for taxation, has been assessed and extended upon tax rolls in substantial compliance with the statutes, and the taxes have not been paid. Under such circumstances, the tender must be made whether the tax deed is void on its face, void for jurisdictional reasons, voidable or valid; and under such circumstances it is the duty of the court to require the payment of the amount due against the land as a condition precedent to entering judgment invalidating the tax deed.
4. SAME - Cases Overruled.
The following cases, in so far as they are in conflict with syllabus No. 3, are hereby overruled: Keller v. Hawk (1907) 19 Okla. 407, 91 P. 778; Holt v. Spicer (1917) 65 Okla. 17, 162 P. 686; Campbell v. McGrath (1926) 117 Okla. 126, 245 P. 634; Lind v. Stubblefield (1929) 138 Okla. 280, 282 P. 365; Farmers' Nat. Bank of Oklahoma City v. Gillis (1932) 155 Okla. 290, 9 P.2d 47; Cunningham v. Webber (1935) 171 Okla. 211, 42 P.2d 244; Jones v. Storie (1935) 172 Okla. 473, 40 P.2d 1067.
5. SAME - Appeal and Error - Remand of Cause to Permit Defendant to Make Required Tender Where He Had Relied on Prior Decisions Requiring no Tender.
Ordinarily, where plaintiff's petition, which relies upon a tax deed valid on its face, states a good cause of action, and a defendant seeks to avoid the deed without tendering the amount due, it is proper to dismiss the cross-petition and render judgment for plaintiff for the relief to which he is entitled; but where a litigant fails to make a tender, relying on the prior decisions of this court requiring no tender, which decisions are overruled after the trial of the cause, this court will remand the case, with directions to the lower court to give him an opportunity to make tender, where the deed is void for jurisdictional reasons.
Appeal from District Court, Okmulgee County; S.L. O'Bannon, Judge.
Action by M.B. Parks against Alphia French Lyons, Freeman B. Walton, and others. From judgment for defendant Lyons, plaintiff and defendant Walton appeal. Reversed and remanded, with directions.
Irwin Donovan and W.R. Banker, for plaintiffs in error.
E.F. Maley, for defendant in error.
¶1 This is an action to quiet title based on a certificate tax deed. The trial court held the tax deed void, and further held that the mortgage of defendant, Alphia French Lyons, is superior to plaintiff's interest. Plaintiff appeals.
¶2 1. The first question to be determined is whether the tax deed upon which plaintiff's title is based is void. Defendant urges several reasons why it is, but, without determining the merit of the other contentions, we believe the deed is void for the reason that the assignment of the tax sale certificate to plaintiff's grantor did not comply with section 12747, O. S. 1931 (68 Okla. St. Ann. sec. 388), and was therefore void, and consequently the tax deed based thereon must likewise fail. The following facts are pertinent to this decision:
¶3 The land in question was sold for the 1926 taxes to one J.W. Parker in November, 1927, and a tax sale certificate was properly issued to him. The certificate shows an assignment thereof by Parker to one Ben G. Harned on December 29, 1933. The acknowledgment to the assignment recites: In 1935, Harned served notice of application for tax deed and on September 25, 1935, the county treasurer executed the tax deed in question to him. On that day, Harned conveyed the property to plaintiff Parks by quitclaim deed.
¶4 Section 12747, supra, provides that a tax sale certificate is assignable "and said assignment must be acknowledged before some officer having power to take acknowledgment of deeds." This statute is mandatory. Wilson v. Wood (1900) 10 Okla. 279, 61 P. 1045; Mattocks v. McLain Land & Investment Co. (1902) 11 Okla. 433, 68 P. 501; Eager v. Pugh (1926) 123 Okla. 207, 253 P. 41; and Wiggs v. Flatt (1931) 154 Okla. 94, 6 P.2d 690. It was held in Wilson v. Wood, supra, that "a tax certificate, and a valid assignment thereof, where the assignee claims title under a tax deed, are essential and necessary to the validity of the deed, and to the authority of the taxing powers to divest the title of the former owner or those claiming through him."
¶5 The tax deed, upon which plaintiff's title rests, is void because the commission of the notary public had expired approximately one year before she took the acknowledgment, and therefore the assignment was not acknowledged before an "officer having power to take acknowledgment of deeds" as required by section 12747, supra.
¶6 Plaintiff seeks to avoid this result by contending that it is apparent from the face of the instrument that the notary made a clerical error in dating her acknowledgment, and that it was in fact acknowledged on December 29, 1933, which is the date of the assignment itself. There is no direct evidence to support this contention. On the contrary, an examination of the affidavit of publication of notice for application for tax deed sworn to by Harned (the assignee of the tax sale certificate) and each of the notices of application for tax deed signed by Harned, and the tax deed itself, affirmatively discloses that Parker assigned the certificate to Harned on December 29, 1934. Furthermore. Harned testified that he purchased the tax sale certificate from one Scripture in 1935, and there is no evidence that he purchased the same from Parker on December 29, 1933. Under these circumstances, we cannot agree that the date appearing in the acknowledgment of the certificate is a mere clerical error.
¶7 Plaintiff also contends that the recital by the notary public of the date upon which his commission expires is not required by our statute, is surplusage and should be disregarded. In this plaintiff is in error. Section 5907, O. S. 1931 (49 Okla. St. Ann. sec. 5), requires a notary public to add to his official signature the date of expiration of his commission as such notary public, and makes his failure to do so a misdemeanor.
¶8 2. Plaintiff next asserts that the trial court erred in quieting title in defendant Lyons against the claims and demands of plaintiff and persons claiming through him and his principals, and enjoining plaintiff and his assigns from claiming or asserting any right, title, or interest in and to said lands. The pleadings disclose that the land in question was encumbered by a first mortgage, executed in 1917 to Freeman B. Walton, and a second mortgage to Alphia French Lyons, executed in 1924. In making this contention, plaintiff construes the decree of the trial court to declare Lyons' mortgage lien superior to Walton's mortgage lien and the lien on the land for the taxes. Neither of these two liens was involved in this action, and of course the trial court, on the basis of the record in this case, could not have made any order adjudicating the superiority of Lyons' lien as to these claims. We construe the decree of the trial court to mean, and it can only mean, that plaintiff's tax deed is void and that Lyons had a valid mortgage on the land superior to any rights or claims arising out of the tax deed.
¶9 3. The next question for consideration is whether the court committed error in rendering judgment in favor of the defendant, Lyons, on her cross-petition without requiring her to pay the taxes, interest, penalty, and costs assessed against the land. This question requires a consideration of our statutes and decisions on the subject of tender.
¶10 Our statutes, sections 12668, 12761 and 12763, O. S. 1931 (68 Okla. St. Ann. secs. 360, 453, 455), have been in force since their enactment as a part of the same act in 1909. Sections 12668 and 12763 are reenactments of territorial statutes (sections 6041 and 6038, Wilson's Rev. & Ann. S. 1903). They provide as follows:
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