Robinson v. Rockett

• Decision Date: 19 October 1954
• Docket Number: No. 35446,35446
• Parties: Alex ROBINSON, Plaintiff in Error, v. Ross L. ROCKETT et al., Defendants in Error.
• Court: Oklahoma Supreme Court

Page 712

275 P.2d 712

1954 OK 278

Alex ROBINSON, Plaintiff in Error, v. Ross L. ROCKETT et al., Defendants in Error.

No. 35446.

Supreme Court of Oklahoma.

Oct. 19, 1954.

Syllabus by the Court.

1. Where a tax certificate holder gives notice of his application for a deed by publication, as provided in Title 68 O.S.1951 § 451, and an affidavit in lieu of mailing is executed, said affidavit must negate said certificate holder's knowledge of the residence or place of business of the owner of the property covered by the deed applied for.

2. The failure to make such affidavit and deliver it to the County Clerk for filing constitutes a jurisdictional defect and where the property owner had no notice or knowledge of said application, the deed is subject to cancellation.

3. A joint demurrer should be overruled if the petition states a cause of action against any of the parties joining in the demurrer.

4. The tender statute, 68 O.S.1951 § 453, specifies no definite time within which a tender pursuant thereto shall be made good by payment into court, though the court may order such payment made at the trial before judgment is entered; if this is not done, and the Court enters judgment upholding the tax deed and refusing to allow the owner to redeem, without objection by any party, said failure to require such payment constitutes no ground for reversal in such a case.

Hulsey & Hulsey, W. J. Hulsey, Lena Hulsey, McAlester, for plaintiff in error.

Bob Perdue, Wilburton, for defendants in error.

BLACKBIRD, Justice.

Plaintiff in error, as plaintiff and owner of Lots Three (3) and Four (4), and the West Half of Lot Seven (7) of Block Eight (8), of the Townsite of Drum, Oklahoma, commenced this action October 6, 1950, against the defendants in error, as defendants, to quiet his title to said lots, to cancel a tax certificate deed issued to the defendant, Jay Townsend, by the defendant, Ross L. Rockett, former County Treasurer, and filed of record March 10, 1949, and for the sum of $500 in damages against both of said defendants and United States Fidelity and Guaranty Company, surety on the latter's official bond. The inclusion of the latter with the tax deed purchaser in plaintiff's alleged causes of action for damages seems to have been upon the theory that in the acts attributed to him, the County Treasurer aided and abetted said purchaser in slandering plaintiff's title by the alleged void deed.

As ground for cancelling the tax deed and quieting his title against it, plaintiff alleged that his agent and tenant, Chester Martendale, attempted to redeem the property for him by payment of the delinquent taxes due on it before the issuance of the deed, but that the County Treasurer would not allow him to do so, and he alleged that the tax deed was void not only because of this, but because of certain alleged defects in the proceedings leading up to its issuance, notably the purported service of the notice of Townsend's application for the deed, which will hereinafter be more fully described.

After the overruling of a general demurrer filed on behalf of all of the defendants (except United States Fidelity and Guaranty Company) to plaintiff's petition, all of the defendants filed answers which in a general way denied plaintiff's allegations as to the invalidity of the tax deed and the proceedings leading up to its issuance, and denied that plaintiff was entitled to any of the relief he prayed for.

When the cause came on for trial, a jury was empanelled, but was excused upon the above-mentioned defendants' request for permission to re-present their demurrer. At the close of the argument on said demurrer, the Court apparently dictated into the record an order sustaining it as to plaintiff's alleged cause or causes of action for damages against the defendants, and dismissing said cause or causes. (The dictated order as reflected in the casemade states that this was done 'upon request of the Plaintiff's Counsel' but said record reflects immediately thereafter an 'exception' by said counsel and there is nothing in the briefs or anywhere else in the record concerning this apparent contradiction, so it is assumed that the quoted statement is error and was intended to refer to a request for a dismissal on behalf of defendants', rather than plaintiff's counsel. It is also noted that the dismissal of the action for damages was as to the defendants (generally) although no demurrer by the defendant, United States Fidelity and Guaranty Company, appears of record, notwithstanding the journal entry of judgment reads as if said defendant had been included in the demurrer filed by the other defendants. Hence no consideration will be given to the regularity or propriety of such dismissal as to that particular defendant who is not a party to this appeal.) Thereafter, the jury was never again recalled, and after a trial on plaintiff's alleged cause of action for the quieting of his title and cancellation of Townsend's tax deed, the court concluded that said defendant's tax deed was 'good', and entered judgment quieting his title against plaintiff. From said judgment plaintiff has lodged the present appeal. Our continued reference to the parties will be by their trial court designations.

Of the several defects asserted by plaintiff to be fatal to the validity of the defendant Townsend's tax deed, the only ones we find necessary to consider are those involving service upon him of said defendant's notice of application for tax deed. According to the undisputed facts, plaintiff moved away from Oklahoma in the latter part of 1944, leaving the 2 1/2 lots in question, together with the adjoining lots Five and Six, on which stood his house, occupied by his tenant, Chester Martendale. The clothes line, toilet, well and garden used by said occupants were on Lots 3, 4, and the west half of Lot 7. The defendant, Townsend, resided across two lots from this house. After issuance of the purported notice of the latter's application for the tax deed an ostensible attempt was made, according to the sheriff's return, dated December 29, 1948, (on the back thereof) to serve it upon plaintiff, said return describing the property as 'vacant lots' and stating that no one was found living on them and that the server could not find the party named in said notice in said County. On the same day, one Kathleen Anderson, 'as Agent' executed an affidavit (in substantially the same form as prescribed in Title 68 O.S.1951 § 451) that Alex Robinson 'owner of the Real Estate described in the * * * notice, is a non-resident of the State of Oklahoma, and that the residence * * * and place * * * of business of such owner * * * is not known to the holder of said tax certificate, and cannot be ascertained by any means within the control of such holder of said tax sale certificate and that the holder of said tax sale certificate cannot with the exercise of reasonable diligence, make service upon such owner * * *, of said real estate, within the State of Oklahoma.' The testimony of the tenant, Martendale, and his wife tended to show, without contradiction, that at all times material to the controversy they were using and 'occupying' Lots 3 and 4 and the west half of Lot 7, along with the ones on which the dwelling house stood. There was no evidence of any effort ever having been made to serve the notice on either of them, and Mrs. Martendale's uncontradicted testimony was to the effect that no one ever made any inquiry as to the whereabouts of the owner, Robinson, but that 'everyone' knew where he had gone and that he had left the property in their possession. The only reasonable inference to be drawn from the testimony is that the defendant, Townsend, knew or should have known 'the residence or place of business of such owner (Robinson)' (Sec. 451, supra) or with the exercise of a minimum of effort or inquiry could have 'ascertained' such information. We think it apparent from the wording of the statute that the legislature intended the same general principles to apply to such proceedings for service by publication that apply to such processs generally in this State. See Wilcox v. Westerheide, 199 Okl. 312, 185 P.2d 452, 456, 173 A.L.R. 1171. In Murphy v. Walkup, Okl., 258 P.2d 922, we held that where the evidence compelled the same kind of a conclusion as the one we have arrived at herein, and conclusively established that the affidavit for service by publication was false, the judgment based thereon was void. But we did not therein hold the judgment based thereon, void on its face; and it must be observed that the affidavit involved herein, for all that appears on the face of the proceedings for the tax deed, seems to be regular and valid in all respects; and, assuming that the County's records showed the lots in question to be vacant, unimproved lots, what would there be about the record of these proceedings to show or import any irregularity in them? We think an answer to this question is furnished by the affidavit of non-mailing, which, other than the formal parts reads as follows:

'I, Kathleen Anderson, being duly sworn, deposes and says: that she is the Agent for Jay Townsend; that the residence or place of business of said Alex Robinson is unknown, and cannot be ascertained by any means within the control of the affiant and that the said Kathleen Anderson has therefore been unable to mail a copy of the notice herein and a copy of the publication notice to said Alex Robinson.

'Further affiant saith not.' (Emphasis added.)

It is clear from the express wording of Title 68, O.S.1951 § 451, that it contemplates that the affidavit for service by publication of the Notice of Application for Tax Deed shall be made either by 'the holder of the tax certificate or his agent,' but other than in the beginning of the paragraph describing it, the word 'Agent' is not mentioned or repeated, and the statute speaks as if the facts stated in such affidavit must be set forth as...