Schuman v. Moses

• Court: Oklahoma Supreme Court
• Writing for the Court: DAVISON, Justice.
• Citation: Schuman v. Moses, 146 P.2d 290, 193 Okla. 634, 1944 OK 103 (Okla. 1944)
• Decision Date: 21 February 1944
• Docket Number: 29144.
• Parties: SCHUMAN et al. v. MOSES et al.

146 P.2d 290

193 Okla. 634, 1944 OK 103

SCHUMAN et al. v. MOSES et al.

No. 29144.

Supreme Court of Oklahoma

February 21, 1944

Syllabus by the Court.

1. In determining the sufficiency of a description in a tax sale proceedings the rule is that if the assessment roll or tax deed itself contains a description which identifies and furnishes an unmistakable clue as to the land intended, parol evidence may be used to explain the description or apply it to its intended object; but if the description is insufficient and furnishes no clue, parol testimony is not admissible to supply the deficiency and show what property the assessor intended to assess.

2. In a tax sale proceedings the designation of a quarter section of land "less seven acres" without any clue on the face of the tax proceedings to indicate the identity of the seven acres excluded is incorrect and legally inadequate.

3. The failure to incorporate in a notice of sale for taxes and a notice of tax resale a correct and legally adequate description of the land to be sold constitutes a failure to "duly advertise" such land and creates a defect in the tax sale proceedings not cured by 68 O.S.1941 § 452.

Appeal from District Court, Dewey County; W. P. Keen, Judge.

Action by J. J. Schuman and another against Shird Nuten Moses and others to quiet title, wherein C. C. Thornton intervened and cross-petitioned. Judgment for intervener, and plaintiffs appeal.

Affirmed.

BAYLESS WELCH, and HURST, JJ., dissenting.

Fred W Martin, of Wagoner, for plaintiffs in error.

Meacham Meacham & Meacham, of Clinton, for defendant in error C. C Thornton.

DAVISON Justice.

This is an action to quiet title. It was instituted on July 3, 1937, in the District Court of Dewey County by J. J. Schuman and C. Plant, as plaintiffs, against Shird Nuten Moses and other named defendants.

Plaintiffs asserted ownership and possession under a commissioners deed based upon a prior tax resale of a number of tracts of land situated in Dewey County including: "The Northwest Quarter (NW 1/4) (less an unidentified 7 acres) of section Twenty Two (22) Township Seventeen North (17N) Range Twenty West (R 20W)" and averred that the defendants were asserting inferior claims which constituted clouds upon their title. A judgment quieting title was sought.

Some time after the institution of the action, C. C. Thornton, who claims ownership and possession of the above property under a chain of title originating in the patent from the United States Government, was permitted to intervene and challenge the validity of plaintiffs' asserted tax title. The invalidity of the tax title was asserted by intervenor on the theory (as stated in the answer) that:

"(a) The published notice of said resale described this property as "N w 4 Less 7 acres 22 17 20".

(b) The notice of delinquent tax sale, upon which tax sale in said resale was based, describes this property as "Northwest Quarter Less 7 acres of Section 22, Township, 17, Range 20."

In his answer intervenor tendered and offered to pay the "taxes, interest, penalties and costs of sale of said land".

Intervenor also presented a cross petition in which he sought to quiet title against the claim of the plaintiffs.

The cause was tried to the court without the intervention of a jury and resulted in a judgment for the intervenor from which the plaintiffs appeal, appearing herein as plaintiffs in error. We shall continue to refer to the parties by their trial court designation.

The proof introduced on the trial of the case disclosed that in November of 1931 the land was sold to the county at original tax sale for delinquent taxes. In the notice preceding such sale the description was: "NW 1/4 less 7 acres 22 17 20". Thereafter in April of 1936 the land was sold to the county of resale. In the published notice preceding the resale the land was described as "NW 4 Less 7 acres 22 17 20". In the resale tax deed the description was: "NW 1/4 less 7 acres sec. 22, 17 20".

Thereafter the county sold whatever title it may have acquired under the resale deed to C. Plant, plaintiff herein, and on September 14, 1936 the chairman of its board of county commissioners executed and acknowledged and delivered to the purchaser a commissioners deed in which the property was described as: "NW 1/4 less 7 acres, Sec. 22 Twp. 17 Range 20". None of the notices or instruments purport to identify the seven acres which is excluded from sale. Nor does such identification of excluded acreage appear of record in the assessor's office where the description corresponds to that contained in the notices.

In the trial of the cause it was established by the records of the county clerk that in 1911 the then owner of the land in question conveyed a portion of the quarter section of land to a railway company, describing the portion conveyed by metes and bounds. In 1912 the railway company conveyed back to the land owner all of the land which it had not fenced for right of way purposes. It was recited in the deed to the railway company that the land thus conveyed constituted 6.89 acres but the amount reconveyed was not indicated in the subsequent deed. It is possible that the seven acres excluded from the description comprehended the land owned by the railway company for right of way purposes. However this identification is merely conjecture since the only suggestion in the tax sale proceedings is the exclusion of an amount of land from the tax sale approximately equaling the land originally conveyed to the railway company.

Apparently the basis upon which the trial court declared the resale tax deed void and held the county had no title to convey was the inadequacy and indefiniteness of the description as contained in the notice and deeds.

In presenting the case on review the plaintiff asserts fundamental error in the trial court's view under the following proposit...