Schuman v. Bd. of Com'Rs of Mcintosh Cnty.

• Decision Date: 18 April 1933
• Docket Number: Case Number: 21630
• Parties: SCHUMAN v. BOARD OF COM'RS OF McINTOSH COUNTY
• Court: Oklahoma Supreme Court

1933 OK 241

21 P.2d 40

163 Okla. 118

SCHUMAN v. BOARD OF COM'RS OF McINTOSH COUNTY

Case Number: 21630

Supreme Court of Oklahoma

Decided: April 18, 1933

Syllabus

¶0 Taxation--Refund of Purchase Money of Resale Tax Deed not Authorized.

The provisions of section 12749, O. S. 1931, do not apply to tax deeds which are issued pursuant to the provisions of sections 12755 and 12756, O. S. 1931, commonly known as resale tax deeds, and there is no provision of law for a refund to the purchaser of a resale tax deed of the amount of the original purchase money.

Appeal from District Court, McIntosh County; Harve L. Melton, Judge.

Action by Morris Schuman against the Board of Commissioners of McIntosh County. Judgment for defendant, and plaintiff appeals. Affirmed.

W. R. Banker, for plaintiff in error.

Milam M. King, for defendant in error.

ANDREWS, J.

¶1 The plaintiff in error as plaintiff, filed his petition and amended petition in the district court of McIntosh County against the defendant in error, as defendant, praying for the recovery of a sum of money alleged to be due to the plaintiff under the provisions of chapter 30, Session Laws of 1925, section 12749, O. S. 1931. It was alleged, in substance, that the plaintiff purchased certain real property at a purported resale held by the county treasurer, for which he received a purported resale deed, and that the deed was void by reason of certain defects in the procedure, among which was the want of proper notice of the sale and the holding of the sale in the county court room instead of in the office of the county treasurer where it was advertised to be sold.

¶2 The defendant filed a demurrer to the plaintiff's petition on the ground that the petition did not state a cause of action against the defendant in favor of the plaintiff. On the presentation thereof, it was contended that chapter 30, Session Laws 1925, supra, does not relate to resale and resale tax deeds, and that it was not alleged that the owner of the land described in the petition had sought recovery thereof. The court sustained the demurrer, and the plaintiff elected to stand on his petition. The plaintiff appealed.

¶3 The only question presented is, Did the plaintiff's petition state a cause of action in favor of the plaintiff and against the defendant? The plaintiff contends that he is entitled to recover under the provisions of chapter 30, Session Laws 1925, supra. The defendant denies that claim.

¶4 The statute, supra, is the result of various legislative changes in a law which was first enacted as section 15, art. 9, of the general revenue bill (chapter 38, Session Laws 1909) and brought forward as section 7405, R. L. 1910, as follows:

"When by mistake or a wrongful act of the treasurer, land has been sold on which no tax was due at the time, the county shall save the purchaser harmless by paying him the amount of principal and interest at the legal rate of interest per annum from the date of sale."

¶5 It is noticeable that in that provision the right to refunds was limited to cases when, by mistake or wrongful act of the treasurer, land had been sold for taxes "on which no tax was due at the time." At the time of the enactment of that provision, there was no law in Oklahoma providing for the resale of land for delinquent taxes.

¶6 The section, supra, was amended by chapter 205, Session Laws of 1919, section 9739, C. O. S. 1921. The purpose of the amendment was disclosed by the title, which was as follows:

"House Bill No. 296. Authorizing Refunds to Tax Certificate Purchasers.

"An act to amend section 7405, art. 9, ch. 72, of the Revised Laws of 1910, of Oklahoma, providing for refunding money actually paid by purchase of tax certificates on land when the same was not due; and declaring an emergency."

¶7 The section, as amended, provided:

"When land has heretofore been or shall hereafter be sold, on which no tax was due, and a tax sale certificate issued by the treasurer thereon, the county shall save the purchaser or his assigns harmless by refunding and paying to him or them the original purchase money paid thereon, together with subsequent indorsements, with interest from date of payment at six per cent. per annum."

¶8 We notice that the section, as amended, conforms to the title and limits refunds to cases when land has been sold on which no tax was due and when a tax sale certificate had been issued by the treasurer thereon.

¶9 That provision was amended by chapter 30, Session Laws of 1925, supra. The title of that act is as follows: "Refunding Money Paid on Tax Certificates.

¶10 By that amendment "lots" were added in order that it might apply to lots as well as to land; "tax deeds" was added in order that it might apply when tax deeds had been issued as well as when tax sale certificates had been issued; "where said sale was, or is otherwise illegal, or a portion of such tax covered improvements which were not on the premises at the time same were assessed," was added in order that it might apply in those cases, and other changes were made immaterial to the discussion herein. The section, as amended, was limited to cases where a tax sale certificate or a tax deed had been issued by the treasurer therefor.

¶11 The plaintiff contends that the term "tax deeds" in the section, as amended, includes tax deeds which were issued pursuant to the provisions of sections 12755 and 12756, O. S. 1931, commonly known as "resale" tax deeds, as well as to tax deeds which were issued pursuant to the provisions of section 12759, O. S. 1931, commonly known as "certificate" tax deeds. He contends that a resale tax deed is a tax deed as much as a certificate tax deed is a tax deed, and that any deed issued pursuant to a tax sale is a tax deed. He cites in support thereof the decision of this court in Cochran v. Sullivan, 94 Okla. 23, 220 P. 870, and a number of other decisions of this court. An examination of those authorities discloses that none of them are determinative of the issue presented.

¶12 There are material distinctions between resale tax deeds and certificate tax deeds. Some of those distinctions were pointed out in the decision of this court in Swan v. Kuehner, 157 Okla. 37, 10 P.2d 707. We do not think it necessary to elaborate on that subject.

¶13 Not only do the titles to the successive legislative enactments limit the classes, but the acts show fully the classes of cases in which such relief may be obtained. In none of them is there any reference to resale tax deeds. We think that the intention of the Legislature is expressed in the limitation contained in the last sentence of the existing section, as follows:

"No action for such refund shall be commenced after the expiration of five (5) years from the time a tax deed might have been applied for, had the sale been valid."

¶14 Prior to the enactment of that amendment, there was no such provision in the act.

¶15 The United States District Court for the Eastern District of Oklahoma, in United States v. Southern Surety Co., 9 F.2d 664, held that:

"Limitations do not run against right of assignee of a certificate of tax sale issued by county treasurer as result of purchase by county, to

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