Savery v. Board of Com'rs of Beaver County

• Decision Date: 30 July 1935
• Docket Number: 23626.
• Parties: SAVERY v. BOARD OF COUNTY COM'RS OF BEAVER COUNTY.
• Court: Oklahoma Supreme Court

48 P.2d 275

173 Okla. 284

SAVERY v. BOARD OF COUNTY COM'RS OF BEAVER COUNTY.

No. 23626.

Supreme Court of Oklahoma

July 30, 1935

Syllabus by the Court.

1. Three weeks publication, as provided in section 12741, O. S 1931, means twenty-one days, and notice of tax sale given for less than twenty-one days is void.

2. The holder of a tax sale certificate issued in pursuance of a tax sale made without giving the twenty-one days' notice as required by section 12741, O. S. 1931, may proceed under section 12749, O. S. 1931, to obtain a refund thereon.

Appeal from District Court, Beaver County; F. Hiner Dale, Judge.

Action by R. S. Savery against the Board of County Commissioners of Beaver County for refund on certain tax certificates. Judgment in part for plaintiff, and in part for defendant. From that part of the judgment in favor of defendant, the plaintiff appeals.

Reversed and remanded with instructions.

Leo G Mann and C.J. Brown, both of Oklahoma City, and Miles & Miles, of Beaver, for plaintiff in error.

John A Spohn, of Beaver, for defendant in error.

WELCH Justice.

The plaintiff, R. S. Savery, filed this action against the board of county commissioners of Beaver county for refunds in eleven causes of action on tax certificates which he alleged to have been void when issued. He relied upon the provisions of section 9739, C. O. S. 1921, as amended by chapter 30, Sess. Laws 1925, appearing now as section 12749, O. S. 1931.

The trial court rendered judgment in his favor on causes of action Nos. 1, 2, 3, 4, 7, and part of cause of action No. 5. No appeal was taken from this part of the judgment, and same will therefore not be further considered in this opinion.

Judgment was rendered in favor of the defendant on causes of action Nos. 6, 8, 9, 10, 11, and on certificate No. 886 set out in cause of action No. 5, and the plaintiff has appealed from that part of said judgment to this court.

The tax certificates sued upon were based upon the 1923, 1924, and 1926 tax sales, and an agreed statement of facts was filed in the case showing that the county treasurer failed to publish notice of each of these sales for twenty-one days prior to such sale.

The effect of a failure to give twenty-one days' notice of a tax sale has been expressly passed upon by this court in the case of Foster v. Board of County Commissioners, 144 Okl. 14, 289 P. 347, 348. The court said: "It has been held by a long list of cases in this state that three weeks' publication, as provided in section 9731, supra, means 21 days, and that notice of a tax sale given for less than 21 days is absolutely void."

Inasmuch as the agreed statement of fact shows that all of the certificates upon which suit was brought were issued without the giving of the required notice of sale, the issues presented here are governed by the Foster Case, supra, and the trial court erred in refusing plaintiff judgment thereon.

It appears further from the agreed statement of facts as to those certificates, for which the trial court did not render judgment, that the land upon which...