Price v. Mahoney

• Decision Date: 26 November 1935
• Docket Number: Case Number: 24231
• Citation: 175 Okla. 355,53 P.2d 257,1935 OK 1169
• Parties: PRICE v. MAHONEY et al.
• Court: Oklahoma Supreme Court

1935 OK 1169

53 P.2d 257

175 Okla. 355

PRICE v. MAHONEY et al.

Case Number: 24231

Supreme Court of Oklahoma

Decided: November 26, 1935

Syllabus

¶0 1. Taxation--Effect of Tax Deed as Cutting off Right of Redemption and Setting in Motion Statute of Limitations.

The issuance of a tax deed fair on its face and based on proper jurisdictional prerequisites cuts off the right of redemption. The recording of a tax deed fair,--not void,--on its face sets in motion the statute of limitations, and when the statutory period of time has elapsed it cannot be attacked, though not based on proper jurisdictional prerequisites. But the issuance of a tax deed void on its face does not cut off the right of redemption, and the recording of such a deed does not start in motion the statute of limitations.

2. Same--Resale Tax Deed Void on Its Face for Lack of Essential Recital.

A resale tax deed which does not recite that the property was sold for an amount equal to or greater than the amount of taxes, penalties, interest, and costs, due on said land, or, in lieu thereof, state that the property conveyed thereby consisted of vacant lots located in the city or town, is void on its face.

3. Same--Tax-Gathering Authorities Required to Proceed Strictly According to Tax Laws.

The taking of taxes by the state is an involuntary exaction from the taxpayer. The tax-gathering authorities must proceed strictly within and according to the laws authorizing them to make this exaction, and the courts will not indulge loose constructions or presumptions in aid of the tax-gathering authorities or their grantees of property sold for taxes.

4. Same--Occupying Claimants Under Void Tax Deed Entitled to Reimbursement From Record Owner for Improvements When Deed Canceled.

One who goes into possession of real estate under a tax deed, even though such deed be invalid or void on its face, and places valuable improvements on the land is entitled to be reimbursed for such improvements by the record owner, if and when the record owner seeks and obtains a cancellation of the tax deed, the tax deed holder in such case being entitled to the benefits of the occupying claimants statutes.

Appeal from District Court, Oklahoma County; Tom G. Chambers, Judge.

Action by Mary E. Price against Annie G. Mahoney and John T. Phelan. Judgment for defendants, and plaintiff appeals. Reversed.

Willingham & Fariss, for plaintiff in error.

Robt. J. Keevan and I. L. Harris, for defendants in error.

PER CURIAM.

¶1 Plaintiff in error, Mary E. Price, commenced this action against Annie G. Mahoney and John T. Phelan in the district court of Oklahoma county by filing her petition therein on April 23, 1930. In her petition she alleges that she is the owner of the fee-simple title in and to lots 47 and 48, block 16, Walnut Grove addition to Oklahoma City, Okla., deraigning her title from the Wintrode Land Company, from whom she acquired a warranty deed in 1906. After some preliminary pleadings, on amended petition was filed by plaintiff in error, Mary E. Price, on September 18, 1930. To this amended petition the defendants filed their answer on October 2, 1930, upon which amended petition and answer the cause was tried to the court and a jury. At the conclusion of the trial, the court dismissed the jury and rendered judgment on September 28, 1931, in favor of the defendants and against the plaintiff. Motion for a new trial was duly filed by the plaintiff, overruled by the trial court, and said cause appealed to this court by said plaintiff, Mary E. Price.

¶2 For convenience, the parties will be referred to here as they appeared in the trial court.

¶3 In plaintiff's said amended petition she alleged, as in her original petition, that she was the owner and in possession of the lots above described, and had been since the year 1906; that on the 16th day of June, 1924, an instrument purporting to be a resale tax deed was issued by the county treasurer of Oklahoma county to defendant John T. Phelan, who afterwards conveyed the said lots to defendant Annie G. Mahoney, who appears to be his sister. Plaintiff alleges that the said instrument, in the general form of resale tax deed, is void on its face for various reasons; among others, that it is not on a form prescribed by the State Examiner and Inspector; that it does not contain the statutory recital to the effect that the property was subject to taxation for the year, or years, stated in the deed; that no year or years are stated in the deed; contains no recital that the property had been listed and assessed as provided by law; no recital that the taxes were levied according to law; that said deed shows upon its face that said county treasurer did not sell the property for the whole amount of the taxes, penalties and costs; and many other alleged defects. Plaintiff tenders into court "all legal charges which may be by the court found due said defendants, or either of them," and prays the cancellation of said purported resale tax deed and the quieting of her title as to and against the defendants.

¶4 The defendants, in their answer, plead the same resale tax deed as the base of their title, saying that it was recorded on October 6, 1924; that they have been in possession since that time, and have improved the property since that time by placing thereon a two-room frame house and having the same plumbed and serviced with city water. Defendants say that, by reason of said deed and recording of same and their possession and improvement of the premises, they have title to the premises and that plaintiff is barred by the statutes of limitation, and ask that they go hence with their costs.

¶5 There was a great deal of testimony taken in the presence of the jury in regard to possession, all of which seems quite immaterial as to the main issues of the case and entirely unsatisfactory. The trial judge finally came to the conclusion that there was nothing in the case to submit to a jury, excused the jury, and passed on the case himself. In this we think the trial judge was correct. The judgment entered by the district judge not only denied plaintiff any relief, but quieted the title to the property in the defendant Annie G. Mahoney.

¶6 Various matters are mentioned and discussed in the briefs, but the whole matter seems to turn on the question of whether the resale tax deed in question was void upon its face. If the resale tax deed was not void upon its face, the statutes of limitation had run against the plaintiff's action. If the resale tax deed was void upon its face, it was a nullity; it set in motion no statute of limitation, and the plaintiff was entitled to redeem the property. Testimony shows that plaintiff's sister went to the office of the county treasurer of Oklahoma county, as agent and attorney in fact for plaintiff, Mary E. Price, on November 4, 1929, and offered to redeem the property from any due or delinquent taxes, and on that date paid to the county treasurer $ 6.40 and took a certificate of redemption as to tax years 1924, 1925, 1926, 1927, and 1928. Her offer to redeem, however, was not limited to any years, but was a general offer to pay any due or delinquent taxes on said property and to redeem same from any tax sales. When plaintiff filed her petition and amended petition in the district court, she again made tender or offer to pay any taxes or charges which the court might find that she should pay in regard to such property. We, therefore, have in the record the offer and tender of plaintiff on November 4, 1929, to redeem the property, as made to the county treasurer, and the offer and...