Schulte v. Herndon

• Decision Date: 18 October 1938
• Docket Number: 26555.
• Citation: Schulte v. Herndon, 184 Okla. 77, 84 P.2d 607, 1938 OK 531 (Okla. 1938)
• Parties: SCHULTE et al. v. HERNDON.
• Court: Oklahoma Supreme Court

84 P.2d 607

184 Okla. 77, 1938 OK 531

SCHULTE et al. v. HERNDON.

No. 26555.

Supreme Court of Oklahoma

October 18, 1938

Rehearing Denied Nov. 29, 1938.

Syllabus by the Court.

1. Under Sec. 12761, O.S.1931, 68 Okl.St.Ann. § 453, a tender in open court of all taxes, penalties, interest and costs, which the party seeking to redeem would be bound to pay if he was then redeeming the land from tax sale, is made a condition precedent to the presentation of a defense to an action by the tax deed holder for the recovery of possession, though no affirmative relief is sought, where the land is liable for taxation, has been assessed and extended upon the tax rolls in substantial compliance with the statutes, and the taxes have not been paid; and, under such circumstances, the tender is required whether the tax deed be valid, voidable or void.

2. The cases of Perry v. Snyder, 1919, 75 Okl. 24, 181 P 147, Callander v. Brickner, 1924, 97 Okl. 37, 222 P 531, and Hawkins v. Stewart, 1934, 167 Okl. 566, 31 P.2d 126, insofar as they announce a rule contrary to syllabus No. 1, are hereby overruled.

3. Ordinarily, where plaintiff's petition, which relies upon a tax deed valid on its face, states a good cause of action and a defendant seeks to avoid the deed without tendering the amount due, it is proper to dismiss the defense and render a judgment for plaintiff for the relief to which he is entitled; but where a litigant fails to make the required tender, relying on the prior decisions of this court requiring no tender, which decisions are overruled after the trial of the cause, the cause will be remanded with directions to the lower court to give him an opportunity to make the tender, where the deed is void for jurisdictional reasons.

4. Under Sec. 12757, O.S.1931, 68 Okl.St.Ann. § 393, infants may redeem any land belonging to them, sold for taxes, within one year after they attain majority, and in an action by the holder of a tax deed to quiet title to land belonging to a minor, it is the duty of the court to protect the rights of the minor under said statute.

Appeal from District Court, Pontotoc County; J. F. McKeel, Judge.

Action by R. A. Herndon against W. F. Schulte and others, to recover possession of lots. From a judgment for plaintiff, defendants appeal.

Remanded with directions.

W. F. Schulte, of Ada, for plaintiffs in error.

C. F. Green, of Ada, for defendant in error.

HURST Justice.

This is an action by the plaintiff, Herndon, to recover possession of two lots in the city of Ada. It was instituted by the grantee in two correctional certificate tax deeds issued in 1932. The deeds appear to be valid on their face. The defendants, after preliminary motions, filed an answer asking no affirmative relief but alleging that the deeds are void on their face and also void for several jurisdictional reasons. They did not allege or claim that the lots were exempt from taxation or that the taxes had been paid. They made no tender of the amount due in their answer or in open court. The plaintiff filed a special demurrer to the answer, one of the grounds being failure to tender the taxes due as required by Sec. 12761, O.S.1931, 68 Okl.St.Ann. § 453. This demurrer was sustained and the defendants were given time to file an amended answer but failed to do so. However, instead of entering judgment for the plaintiff pursuant to the ruling on the demurrer, the court permitted the defendants to appear at the trial and contest the action by objecting to the introduction of evidence, by objecting to certain evidence, by interposing a demurrer to the plaintiff's evidence, by introducing evidence in their own behalf, and by moving for judgment at the close of the evidence. The plaintiff made no objection to defendant's participation in the trial. The court rendered judgment for the plaintiff and the defendants appeal.

Although the parties argued several propositions in their briefs, we think the decisive question in the case is: Was it necessary that the defendants tender the amount of taxes, interest, penalties and costs assessed against the lots, as a prerequisite to making a defense to the plaintiff's action, where no affirmative relief was asked? We are not concerned here with the question of tender in cases where the former owner, or those claiming through him, are asking affirmative relief, and that question will not be discussed, nor will the decisions on that subject be referred to.

The question before us requires a consideration of the provisions of Section 12761, O.S.1931, 68 Okl.St.Ann. § 453, and the prior decisions on the question. The statute, insofar as it is applicable here, provides: "* * * the person desiring * * * to resist the recovery of possession by the holder of the deed in addition to showing clearly the entire failure to do some one or all the things of which the tax deed is made presumptive evidence, must show that he or the person under whom he claims, had the right to redeem the land from tax sale at the time the deed was made, and must, when * * * a defense to a recovery of possession is plead, tender in open co...