Perryman v. City Home Builders

• Decision Date: 09 February 1926
• Docket Number: Case Number: 16670
• Citation: Perryman v. City Home Builders, 248 P. 605, 121 Okla. 150, 1926 OK 130 (Okla. 1926)
• Parties: PERRYMAN v. CITY HOME BUILDERS.
• Court: Oklahoma Supreme Court

1926 OK 130

248 P. 605

121 Okla. 150

PERRYMAN v. CITY HOME BUILDERS.

Case Number: 16670

Supreme Court of Oklahoma

Decided: February 9, 1926

Syllabus by the Court.

¶0 Where A. contracts to furnish B. an abstract of title showing "an absolute and perfect title in fee simple to said lands," and the abstract when presented to B. shows that A. relies for title to said lands on a resale conducted under the resale law enacted by the Legislature at its session in 1923, and said abstract shows certain delinquent special assessments for paving, grading, and sewers, consisting of grading installments from 1910 to 1919, and paving installments from 1911 to 1920, such abstract fails to show such character of title offered to B. as contemplated by the contract.

Holders of municipal bonds issued for payment of street improvements under Session Laws Oklahoma 1907-08, c. 10, art. 1, payable in ten annual installments from a fund created from assessments against improvement district property, have a lien on the property continuing until assessments and interest are paid.

The laws existing at the time of the issuance of municipal bonds, and under the authority of which they are issued, enter into and become a part of the contract in such a way that the obligations of the contract cannot thereafter be in any way impaired or its fulfillment hampered or obstructed by a change in the law.

Appeal from District Court, Oklahoma County; Geo. W. Clark, Judge.

Action by Elizabeth Perryman against the City Home Builders, a corporation, on a contract. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with instructions.

Hunt, J., dissenting.

A. Carey Hough and Geo. A. Henshaw, both of Oklahoma City, for plaintiff in error.

Geo. A. Fitzsimmons, of Oklahoma City, for defendant in error.

Shirk, Danner & Mills, of Oklahoma City, Cochran & Ellison, of Okmulgee, Allen & Underwood, of Tulsa, and G. A. Paul, of Oklahoma City, amici curiae.

LESTER, J.

¶1 This is an appeal from the district court of Oklahoma county. The parties will be referred to as they appeared in the court below. The plaintiff entered into a written contract with the defendant to purchase two town lots in Oklahoma City, which agreement provided that the defendant was to deliver to the plaintiff an abstract showing "an absolute and perfect title in fee simple to said lands"; and that if the abstract failed to disclose such title, plaintiff should be entitled to the immediate return of the $500 constituting the initial payment on the purchase price. The abstract disclosed that the defendant's title rested upon a resale tax deed, dated June 16, 1924, made pursuant to chapter 158 of the Session Laws of Oklahoma of 1923, which provides for the sale of land for delinquent taxes. The defendant filed a demurrer to the plaintiff's petition, which was by the court sustained. The plaintiff elected to stand upon her petition. Judgment was rendered by the court in favor of the defendant, dismissing plaintiff's petition, from which judgment the plaintiff prosecutes this appeal to reverse the same.

¶2 It is conceded by both parties to this action that the sole question to be determined by this court is whether such resale tax deed extinguished certain delinquent assessments against said property for paving, grading, and sewers. The plaintiff in her petition alleged, in part, the following:

"There were certain delinquent special assessments for paving, grading, and sewers which constituted a lien or charge upon said lots involved herein, same consisting of grading installments from 1910 to 1919, and paving installments from 1911 to 1920, and sewer installments from 1911 to 1913; that said installments still remained delinquent at the time said written contract was entered into and constitute a breach thereof."

¶3 Plaintiff further alleged:

"That within ten days after said abstract of title was furnished plaintiff, she duly examined the same, found the defects of title above mentioned, and within the time required brought same to the attention of the defendant; that said defendant did not within five days thereafter, nor at any time since, correct such defect in said title, nor acquire good title to said lands and premises, but same still remains in the same condition as that disclosed by said abstract."

¶4 The defendant by its demurrer admitted the truthfulness of plaintiff's statement relative to the unpaid assessments against said property, and therefore the sole and only question for this court to determine is whether or not the defendant tendered to the plaintiff an abstract "showing absolute and perfect title in fee simple to the said lands."

¶5 It appears that the unpaid assessments against the property which the defendant agreed to sell the plaintiff commenced to run in 1910 and continued thereafter until 1920, and said assessments were made for paving, grading, and sewers.

¶6 The Legislature of the State of Oklahoma enacted a comprehensive paving law under and by virtue of House Bill No. 231, approved April 17, 1908, and contained in the Session Laws of 1907-08, c. 10. This law was enacted by virtue of the power granted by the Constitution of the State of Oklahoma, which authorizes assessments for local improvements as contained in section 7 of article 10, which reads as follows:

"The Legislature may authorize county and municipal corporations to levy and collect assessments for local improvements upon property benefited thereby, homesteads included, without regard to a cash valuation."

¶7 By the provisions of the Acts of 1907-08, supra, municipalities were authorized to levy and collect assessments when the procedure therein outlined was complied with, and among other things, section 5 of the act provided:

"Such special assessments, and each installment thereof and the interest thereon are hereby declared to be a lien against the lots and tracts of land so assessed from the dates of the ordinances levying the same, coequal with the lien of other taxes, and prior and superior to all other liens against such lots or tracts, and such lien shall continue until such assessments and interest thereon shall be fully paid."

¶8 Thus the paving law remained until 1910, when certain procedure in reference to paving was materially changed, as appears in chapter 10, article 12, Revised Laws 1910. But as was provided in section 634 of said 1910 law, that portion of the 1907-08 paving act heretofore noted was carried over into the 1910 act, and said section 634 of the 1910 law likewise provided that the assessments and interest thereon were declared to be a lien against the lots so assessed coequal with the lien of other taxes and prior and superior to all other liens against said lots.

¶9 Thereafter a new paving law was enacted in 1923, materially changing the method of procedure by which streets might be paved, but again by section 23 of said act, chapter 173, Session Laws 1923, such special assessments, and each installment thereof, were declared to be a lien against the lots so assessed coequal with the lien of other taxes and prior and superior to all other liens against such lots.

¶10 The Legislature of the State of Oklahoma, March 10, 1909, by House Bill No. 168, enacted a general revenue and taxation measure for the state of Oklahoma, Session Laws 1909, p. 572, and among other things provided for the sale and resale of property against which delinquent taxes might be outstanding and the procedure relative to the execution of tax deeds for delinquent property. At the time of the passage of this act, the provisions of the 1907-08 paving law were in full force and effect, and it must be assumed, therefore, that the 1909 Revenue Law was enacted with full knowledge of the requirements of the 1907-08 paving law, especially so with reference to the equality of special assessments with general taxes.

¶11 This general revenue bill, with but slight amendments at subsequent sessions of the Legislature, remained the law of this state until changed by the act of the Legislature in 1919 (Laws 1919, c. 130), at which time the Legislature of this state undertook to amend certain sections of the general revenue law in so far as the same applied to the resale of property purchased by counties at tax sales.

¶12 By section 5 of the Act of 1919, the county treasurer was required to buy in the property in the name of the chairman of the board of county commissioners, under certain circumstances, and when the same was so bid in, and while held by such chairman of the board, the property was not liable for state or county taxes or any special assessment lien, and such property when acquired by the county, under the same provisions of the section, could be sold by the county treasurer upon notice given and the proceeds of such resale to accrue to the common school fund of the county. By section 6 of the Act of 1919, ten days after the sale, the county treasurer was required to execute and deliver to the purchaser at resale the tax deed, which section of the said act further provided as follows:

"Which deed shall expressly cancel and set aside all taxes, penalties, and interests and costs previously assessed or existing against said real estate, including paving taxes and outstanding tax sale certificates, and such deed shall vest in the purchaser and grantee of said real estate an absolute and perfect title in fee simple to said land."

¶13 At the time of the passage of the act of 1919, which, as stated, undertook to amend the general revenue act which prior to that time did not undertake to deal with special assessments, but merely with reference to ad valorem taxes, the paving law found in section 634 of the 1910 statute was in full force and effect. As it will be observed, the paving assessments were levied against the lots in question at a time when section 634 of the 1910 statute was in full force and effect, which provided that the lien of the special assessments were coequal with the lien of...