Swearingen v. Mccartan

• Decision Date: 17 October 1939
• Docket Number: Case Number: 28123
• Citation: 96 P.2d 1061,183 Okla. 241,1939 OK 409
• Parties: SWEARINGEN v. MCCARTAN et al.
• Court: Oklahoma Supreme Court

1939 OK 409

96 P.2d 1061

183 Okla. 241

SWEARINGEN v. MCCARTAN et al.

Case Number: 28123

Supreme Court of Oklahoma

Decided: October 17, 1939

Syllabus

¶0 1. TAXATION--Resale tax deed not void on its face for lack of recital that land was legally liable for taxation.

A resale tax deed is not void on its face merely because it fails to expressly recite that the land was legally liable for taxation and lawfully assessed.

2. SAME--Failure of county treasurer to file return of sale with county clerk not jurisdictional defect.

Failure on the part of the county treasurer to file the return of sale as required by section 12745, O. S. 1931, 68 Okla. Stat. Ann, § 386, is not such jurisdictional defect in sale proceedings as to render resale tax deed void.

3. TAXATION--Act waiving tax penalties etc., not effective to divest counties of tax liens.

Article 15, chapter 66, S. L. 1935, waiving interest and penalties accruing on delinquent taxes for the year 1934 and prior years, did not serve to divest the county of its tax liens for such delinquent taxes or to suspend the authority of county officials to conduct regular tax resales based upon prior November sales.

4. TAXATION--Assessment of land not rendered void by failure to assess same in name of record owner or to "unknown owners."

The assessment of land for taxation is not rendered void merely by failure on the part of county officers to assess the same in the name of the record owner or to "unknown owners" (sees. 12596, 12760, 12761, 12764, O. S. 1931, 68 Okla. Stat. Ann. § § 104, 452, 453, 395).

5. SAME--Notice of tax resale not invalidated by omission of any reference to name of owner in conformity to tax rolls.

A notice of tax resale which omits any reference to the name of the owner of the land to be sold is not fatally defective, where the last tax rolls in the office of the county treasurer were silent as to such ownership (sec. 12754, O. S. 1931, 68 Okla. Stat. Ann. § 413).

6. SAME--Resale tax deed not void because issued before close of general county resale.

A resale tax deed is not rendered void because issued before the treasurer has finished public sale of all other tracts of land advertised for sale during the same general county resale which is continued from day to day until all tracts are resold.

Appeal from District Court, Logan County; Henry W. Hoel, Judge.

Action by A. P. Swearingen against Mrs. Alexander McCartan and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded, with directions.

Fred W. Green, of Guthrie, for plaintiff in error.

McGuire & McGuire, of Guthrie, for defendant in error Mrs. Alexander McCartan.

J. H. Hill, John R. Ramsey, B. W. Griffith, and Sol H. Kaufman, all of Tulsa, for defendants in error the Texas Company and H. L. Braun.

Harry T. Klein, of New York, N. Y., of counsel, for defendant in error the Texas Company.

GIBSON, J.

¶1 This is an action in ejectment by the holder of a resale tax deed against the owner of the premises and her lessees.

¶2 Judgment was entered for defendants quieting title and canceling plaintiff's deed, and the latter has appealed.

¶3 Defendants made tender of all taxes, penalties, interest, and costs (sections 12761, 12763, O. S. 1931, 68 Okla. Stat. Ann. §§ 453, 455), and charged that the deed was void on its face, and was void also by reason of the omission on the part of the taxing officials to perform certain alleged jurisdictional functions in connection with the assessment and sale of the land.

¶4 After a thorough examination of the record, we are of the opinion that the trial court erred in holding the resale tax deed void.

¶5 Defendants have urged that, since the tax deed fails to recite that the property described therein was legally liable for taxation and had been duly and lawfully assessed, it is void on its face. Sections 12760, 12762, O. S. 1931, 68 Okla. Stat. Ann. §§ 452, 454; Felt v. Schaub, 134 Okla. 193, 272 P. 830; Kirsch v. Tracy, 174 Okla. 489, 55 P.2d 428.

¶6 The foregoing decisions have been overruled by this court and the above contention decided adversely to defendants. Reeves v. Caldwell, 179 Okla. 501, 66 P.2d 75; Davis v. Fariss, 180 Okla. 125, 68 P.2d 417; Patteson v. Myers, 183 Okla. 601, 83 P.2d 846; McKnight v. Frey, 184 Okla. 303, 86 P.2d 985. In the Reeves Case, above, we held as follows:

"A resale tax deed otherwise sufficient is not void on its face merely because it fails to expressly recite that the land was legally liable for taxation. And the rules announced in Kirsch v. Tracy, 174 Okla. 489, 55 P.2d 428, and Felt v. Schaub, 134 Okla. 193, 272 P. 830, in so far as contrary hereto, are expressly overruled."

¶7 The present tax deed was executed pursuant to the resale of 1936 which was based upon the regular November sale of 1933. Defendants say the treasurer's return of the 1933 sale was not made as required by law, thus invalidating both the regular sale and the resale and rendering the deed void. Section 12745, O. S. 1931, 68 Okla. Stat. Ann. § 386; Mannus-Dewall v. Smith, 139 Okla. 195, 281 P. 807; Massey v. Tucker, 141 Okla. 193, 284 P. 648.

¶8 It is said in this connection that the treasurer filed no return of sale with the county clerk until the February following the regular sale, and therefore failed to comply with the provision of said section 12745, which requires that the return be filed on or before the last day of November. But the defendants admit that the last-cited cases, so far as the decisions pertain to this particular question, have been overruled. Jepeway v. Barrett, 165 Okla. 220, 25 P.2d 661. Failure to file the return aforesaid is not jurisdictional, but a mere irregularity, and does not invalidate the sale. In McNaughton v. Beattie, 181 Okla. 603, 75 P.2d 400, we held as follows:

"The failure to file the return of sale as required by section 12745, O. S. 1931 (68 Okla. Stat. Ann. § 386) is not such jurisdictional defect as to render resale tax deed void, but such return is evidence of the regularity of the proceedings."

¶9 See, also, Gilbert, Rec., v. Cochran, 183 Okla. 100, 80 P.2d 230.

¶10 It is further contended that article 15, chapter 66, Session Laws of 1935, deprived the county treasurer of all power to conduct the resale of 1936. That statute cancels all penalties and interest on delinquent taxes for the year 1932 and prior years. It also waives the penalties and interest on delinquent taxes for the years 1933 and 1934 on condition that the taxes be paid on or before certain dates, respectively, in the year 1935. The argument in this behalf is that the waiver of interest and penalties, even for only a particular period of time, had the legal effect of wiping out any earlier November sale and leaving the county treasurer only the power to offer the property for sale at the regular November, 1936, sale. In other words, the defendants say there was no regular November sale upon which to predicate the resale of April, 1936.

¶11 But the provisions of the above statute do not purport to cancel previous tax sales, and we find nothing therein to indicate such a legislative intent. The effect thereof was not to cancel certificates of sale issued to the county at November sales, but to permit redemption without payment of accrued penalties and interest. We have heretofore held that the statute in question did not divest the county of its tax lien, but merely abolished penalties in order to aid delinquent taxpayers in discharging their tax duties. Stith v. Simmons, 181 Okla. 538, 75 P.2d 419.

¶12 The entire sales proceedings out of which the present deed resulted were based upon the delinquent taxes for 1932. The statute, without qualification, purports to cancel all penalties and interest to accrue on the taxes aforesaid up to December 1, 1935, and the taxes for 1932 and prior years were not to become delinquent until the latter date. Assuming the legality of the statute in this respect, the defendants could have redeemed without paying the interest and penalties on the 1932 tax. Nevertheless, the county could conduct November sales subject only to the taxpayer's right to redeem before or at the resale without paying the interest and penalties in question. The resale deed shows on its face that the county treasurer had recognized this right of redemption without payment of the interest and penalties.

¶13 The law governing this situation is stated in Stith v. Simmons, supra, as follows:

"When a tax sale certificate has been issued and the legal holder thereof seeks a tax deed as provided by statute, an action will not lie by the owner of the land to enjoin the taking of such deed for the reason that the certificate was issued upon proceedings had during the period described in the act, supra, waiving penalties, interests, and costs."

¶14 The act there mentioned was the statute of 1935 here in question. If the right of an individual owner of a tax certificate to take a deed is unaffected by that statute, it stands to reason that the county's rights under similar certificates to foreclose by resale are also unaffected thereby.

¶15 Next, it is asserted that the assessment of 1932 was void in that the land was not listed in the name of the owner or assessed to unknown owners as required by section 12596, O. S. 1931, 68 Okla. Stat. Ann. § 104.

¶16 The column, or space, provided on the rolls for the name of the landowner was left blank for the year 1932. This circumstance, say defendants, invalidated the November, 1933, sale of this property and all subsequent proceedings including the resale of 1936.

¶17 It is true, there must be a valid assessment to support a sale. But the assessment here did not invalidate the sale. Section 12596 does provide that where the name of the owner of property not already listed by another is known to the assessor the property shall be listed in his name, and, if unknown, the property shall be assessed to "unknown owners." But that provision is directory only. We are aware of no decision of...