Price v. Salisbury

• Decision Date: 10 February 1914
• Docket Number: Case Number: 3556
• Citation: 1914 OK 63,41 Okla. 416,138 P. 1024
• Parties: PRICE v. SALISBURY.
• Court: Oklahoma Supreme Court

1914 OK 63

138 P. 1024

41 Okla. 416

PRICE v. SALISBURY.

Case Number: 3556

Supreme Court of Oklahoma

Decided: February 10, 1914

Syllabus

¶0 1. MORTGAGES--Payment of Taxes--Duty of Mortgagee. A person holding a mortgage upon real estate as security for a debt is under no obligation to pay the taxes upon such property, unless there is some provision in the mortgage requiring him to do so.

2. SAME--Tax Sale--Right to Purchase--Mortgagee. A person holding a mortgage on property may acquire title to the mortgaged premises by the purchase at tax sale and obtaining tax deed therefor.

3. TAXATION--Tax Deed--Title. A tax deed regularly issued by the county treasurer, two years having passed since the tax sale and issuance of the certificate of purchase, vests in the grantee named in such deed an absolute fee-simple title in the land therein described.

Error from District Court, Oklahoma County; John J. Carney, Judge.

Action by James B. Price against George Salisbury for the recovery of the possession of land, and for damages. Judgment was for the defendant, and plaintiff brings error. Affirmed.

W. R. Wheeler and Giddings & Giddings, for plaintiff in error

Everest, Smith & Campbell, for defendant in error

GALBRAITH, C.

¶1 The plaintiff in error, as plaintiff in the court below, instituted an action March 30, 1910, in the district court of Oklahoma county, alleging that he was the owner of the legal title and entitled to the possession of the N.E. 1/4 of section 13, township 14 N., range 4 W., and alleging that the possession of the same had been unlawfully withheld from him by the defendant, and prayed for the possession, damages, and for general relief. The defendant answered, first, by general denial, and, second, admitted that he was in the possession of the land described, and was and had been since the 3d day of May, 1900; and by way of cross-petition the defendant alleged that he was the owner of the premises, and in the quiet and peaceable possession thereof, and that the action instituted by the plaintiff cast a cloud over his title, and that the plaintiff was without right, title, or equity in and to said lands, or any part thereof, and prayed that plaintiff take nothing by his action, and that the title in the land described be quieted in the defendant as against the claim of the plaintiff and all persons claiming by, through, or under him since the commencement of the action.

¶2 The issues were properly joined under the pleadings as above set out, and a jury waived, and the cause submitted to the court for trial. It appeared from the evidence: That the plaintiff was the homestead entryman of the land described, and his final proof was made and certificate issued to him under date of May 9, 1894. That on June 7, 1894, the plaintiff, joined by his wife, executed a real estate mortgage on the land to W. W. Grant to secure a promissory note bearing that date and due five years thereafter, bearing interest from date, payable semiannually. That about three years after the execution of the note and mortgage the plaintiff and his wife abandoned the land, and took up a nomadic life, wandering from place to place for the benefit of his wife's health, as he claimed, traveling in a wagon for a period of some ten years thereafter, a portion of which time was spent in the state of Missouri. That shortly after he returned to Oklahoma he instituted this suit. That the plaintiff defaulted in the payment of interest due upon his mortgage note, and also failed to pay the taxes against the land, and the same was sold for taxes November 16, 1896, and purchased by Whit M. Grant. That Whit M. Grant, as attorney for the mortgagee, his brother, commenced an action to foreclose the mortgage on the real estate described February 16, 1897, and service was attempted to be made on the defendants by publication notice. This suit proceeded to judgment and decree, and an order of sale issued, and the land was sold by the sheriff and purchased by Whit M. Grant, the sheriff's deed to Grant being under date of April 14, 1897, and the tax deed for the land was executed to Whit M. Grant November 19, 1898. That Whit M. Grant and his wife conveyed the land to the defendant, Salisbury, by warranty deed May 3, 1900.

¶3 The court below found that the affidavit for publication service in the action of W. W. Grant against James B. Price was insufficient in form, and that the district court did not acquire jurisdiction in the foreclosure suit on account thereof, and that the sale of the land in controversy under the decree was void, and that the sheriff's deed did not convey title to Whit M. Grant. Also, that the tax deed issued by the county treasurer of Oklahoma county to Whit M. Grant November 16, 1898, did convey the land in controversy, and gave a perfect title thereto to Whit M. Grant, and that Whit M. Grant conveyed and gave a valid title to the defendant, George Salisbury. The court also made a general finding on the issues in said cause for the defendant, George Salisbury, and against the plaintiff, and found that the defendant was entitled to a decree quieting the title to the land in controversy in the defendant as prayed in his cross-petition. The court decreed according to these findings. The plaintiff excepted to the findings, judgment, and decree, and appealed to this court by petition in error and case-made, after the overruling of his motion for new trial.

¶4 Numerous assignments are made in the petition in error; but only one is argued in the brief of counsel for plaintiff in error, that is, that Whit M....