Patteson v. Myers
| Decision Date | 01 November 1938 |
| Docket Number | 25975. |
| Parties | PATTESON v. MYERS et ux. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. A resale tax deed is not rendered void because issued before the treasurer has finished public sale of all other tracts of land advertised for sale during the same general county resale which is continued from day to day until all tracts are resold.
2. A resale tax deed otherwise sufficient is not void on its face merely because it fails to expressly recite that the land was legally liable for taxation.
3. A resale tax deed reciting the time and place of such resale and otherwise valid is not void on its face for failure to recite the exact place of the original tax sale.
4. A party is entitled to his day in court, and to have a fair and reasonable opportunity to present and establish his claim or defense, and his failure so to do when he has been afforded such opportunity, in the absence of exceptional facts excusing him, will afford no basis for a new trial.
5. The granting or refusal of a new trial on the ground of newly discovered evidence is a matter largely within the judicial discretion of the trial court, and, unless it appears that such discretion has been abused, the ruling of the court will not be disturbed upon appeal.
6. Where, from the face of a motion for new trial on the ground of newly discovered evidence, as well as from all of the facts in the case, it is manifest that movant had failed to exercise reasonable diligence to secure the alleged newly discovered evidence in time for the trial, and which it is reasonably apparent could have been secured, had proper diligence been exercised, the denial of a motion for new trial based on this ground is not error.
7. It is not an abuse of discretion to deny a new trial on the ground of newly discovered evidence which does not directly tend to establish or disprove any issue within the pleadings.
8. Alleged newly discovered evidence, consisting of public records of which a party had presumptive knowledge and of which by the exercise of diligence he might have had actual knowledge, will not warrant new trial.
Appeal from District Court, Oklahoma County; Sam Hooker, Judge.
Action to quiet title by Lee Myers and wife against Buford M Patteson and others. Judgment for plaintiff, and the named defendant appeals.
Affirmed.
William J. Crowe and Twyford & Smith, all of Oklahoma City, for plaintiff in error.
Arthur H. Dolman, of Oklahoma City, for defendants in error.
Plaintiffs Lee Myers and Mayme Myers, husband and wife, resided upon the two resident lots here involved, and claimed fee simple title thereto by warranty deed from their immediate grantor, Harris. After plaintiffs had so held and occupied said premises for some time plaintiffs brought this action to quiet title, joining as defendants their immediate grantor and several other persons whose names appear in the chain of title, and predicating their title on their immediate deed from Harris.
Various defendants appeared and filed pleadings, but this appeal only involves the controversy between the plaintiffs and one of the defendants, Buford M. Patteson, so that we need only notice the contentions of these parties as against each other. That defendant filed answer claiming to own the premises and specifically alleging that a certain quitclaim deed appearing in the chain of title recorded six years theretofore and purporting to have been executed by him was in fact a forgery. That defendant further alleged that the plaintiffs' title was based upon a resale tax deed executed and recorded some nine years theretofore, and defendant alleged that said resale tax deed was void and voidable for ten specific reasons, numbered and alleged in detail.
Plaintiffs' reply to that answer admitted the execution and delivery of the quitclaim deed and of the resale tax deed appearing of record in plaintiffs' chain of title, but specifically denied that the quitclaim deed was a forgery or that the resale tax deed was void or voidable, and specifically plead the bar of the statute of limitations.
At the time this suit was filed the plaintiffs and their grantors in the chain of title had held exclusive possession and resided upon the premises for about nine years, and the defendant, Patteson, had not seen the premises or exercised any control of the premises in person or by agent for about thirteen years, and the property was sold for delinquent taxes twelve or thirteen years before the commencement of this action, at the annual tax sale, the annual tax sale being followed by resale, which was the basis of the resale tax deed attacked by the defendant, Patteson, and alleged to be void for the ten specific reasons asserted in his answer. Upon trial the defendant, Patteson, testified that he did not execute the quitclaim deed, and that he resided in Texas at the time the quitclaim deed was purported to have been executed in Oklahoma City, and was not in Oklahoma at or even near that time. He also presented testimony of his neighbors in Texas who knew him there and did not observe his absence from his home there at or about the date of the execution of the quitclaim deed six or seven years theretofore. The plaintiffs apparently had no personal knowledge of the execution of the quitclaim deed appearing back in their chain of title and they introduced no counter evidence as to the execution of that deed. It appears to have been their position that the title of Patteson had been effectively extinguished by the resale tax deed some three years prior to the date of the quitclaim deed. And the finding of the trial court that the quitclaim deed was not executed by the defendant Patteson is not sought to be reviewed.
At the conclusion of the trial the trial court found that the plaintiffs' title as based upon the resale tax deed was valid and perfect, that plaintiffs and their grantors had been in possession of the real estate since the recording of that deed nine years and seven months before the commencement of this action; that said deed is regular on its face and that no jurisdictional defects were shown to exist in connection with the deed; that the resale deed extinguished the title of the defendant, Patteson, and that defendant was barred by the applicable statute of limitations from any recovery.
In his motion for new trial the defendant, Patteson, alleged newly discovered evidence as a ground for new trial, and the assignment of error based thereon will be considered later. We will first notice contentions of the defendant alleged in his answer and presented here in his effort to show that the resale tax deed is void.
It is urged that the resale deed was void because it was prematurely issued. Upon that point the fact is that the treasurer executed this deed after the land involved had been sold at the resale, but before the treasurer had sold all of the other tracts of land in the county which he had advertised to be sold at the same sale. This contention has been decided adversely in Reeves v. Caldwell, 179 Okl. 501, 66 P.2d 75, and Davis v. Fariss, 180 Okl. 125, 68 P.2d 417. We adhere to that rule upon this point and hold that the trial court committed no error in denying this contention of invalidity of the deed.
It is also urged that the resale deed is void on its face because it does not recite that the land involved was legally liable for taxation. In our former decisions in Hatchett v. Going, 121 Okl. 25, 246 P. 1100; McGrath v. Rorem, 123 Okl. 163, 252 P. 418; and Reeves v. Caldwell, supra, this court upheld resale tax deeds which did not contain such recitations. The effect of those decisions is to hold that such specific recitation is not essential to the validity of such a tax deed on its face. In the last cited case we specifically overruled two former decisions in so far as language therein used might indicate a contrary determination. We now adhere to the conclusion of the above cited cases, and find that the trial court did not err in this case in denying this contention of the defendant.
Defendant urges that this deed is void on its face because it does not show the date and place of the original annual tax sale by proper deed recitation. We find that the deed sufficiently recites the day of the original sale, but does not expressly recite that the sale was made in the office of the county treasurer. The deed further recites in minute detail the day and place of the resale, and as to the original annual tax sale the deed contains sufficient other recitations. This exact question arising upon a deed in quite similar, if not identical form, was before this court in Reeves v. Caldwell, supra. We there held that the absence of such specific recitation did not of itself render the deed void on its face. We adhere to that rule and accordingly hold that the trial court committed no error in denying this contention of invalidity of the deed.
Other contentions of invalidity of the tax deed were alleged in defendant's answer, but are not in any manner presented here. This disposes of all of the contentions of invalidity which were presented in defendant's answer and which are presented here.
The remaining question of newly discovered evidence was presented in the trial court in the following manner only: The motion for new trial requested that the judgment be set aside and a new trial granted "for the following reasons materially affecting the substantial rights of said defendant to-wit," which was followed by eight numbered paragraphs, one of them reading as follows: "Seven: On account of newly discovered evidence which the said defendant could not with reasonable diligence have ascertained and...
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