¶0 1. MORTGAGES - Grantee in Tax Deed Securing Deed From Holder of Sheriff's Deed Previously Issued in Mortgage Foreclosure Held not Entitled to Writ of Assistance.
Where a sheriff's deed has been executed to a mortgagee in a mortgage foreclosure, and later the said land described in said deed is sold to the county at a resale tax sale, and deed executed and delivered to the chairman of the board of county commissioners, and later said property is conveyed by a deed from the county commissioners to an individual, and said individual secures a deed from the holder of the sheriff's deed, he is not entitled to a writ of assistance.
2. TAXATION - Title Conveyed by Valid Tax Resale.
The purchaser at a valid tax resale procures a title to the real estate from the government which is free and clear from any former right of any former owner of the real estate.
Appeal from District Court, Creek County: Gaylord R. Wilcox, Judge.
Application for writ of assistance by M.M. Lawrence and W.E. Lawrence, Jr., sustained, and Frank Taylor and Bess Taylor appeal. Reversed and remanded.
CORN, J.
¶1 This is an appeal from an order of the district court issuing a writ of assistance in the cause entitled "Joe Morris. Plaintiff, v. Lizzie Ray, H.D. Ray, and Frank P. Taylor, Defendants," by virtue of the judgment rendered September 5, 1929. foreclosing a real estate mortgage.
¶2 Sheriff's sale was made of said property to Joe Morris, mortgagee, and said sale was by the court confirmed, and sheriff's deed issued.
¶3 At the time of this foreclosure sale, the taxes were several years delinquent upon the property, and on May 19, 1930, after having been regularly advertised, said property was sold to the county at the resale tax sale, and a deed to same made and delivered to the chairman of the board of county commissioners of Creek county.
¶4 This property was conveyed by deed from the county commissioners to Morris Schuman on June 23, 1930, and on June 28, 1930, Morris Schuman and Otis Allen conveyed, by quitclaim deed, the said property to the defendants in error.
¶5 On October 14, 1930, these defendants in error filed an action in the district court of Creek county, entitled "W.E. Lawrence, M.M. Lawrence Harrison, Plaintiffs, v. Frank Taylor and Bess Taylor and Joe Morris, Defendants," said action being in the nature of an ejectment, and in which they deraign their title through the deed from Schuman and Allen to these defendants in error, which said action has ever since been pending in said court.
¶6 After beginning the above litigation and while it was pending, to wit, on April 9, 1931, the defendants in error procured from Joe Morris a quitclaim deed conveying whatever interest he may have had in said property to these defendants in error.
¶7 On December 14, 1931, defendants in error filed their application for a writ of assistance in this cause basing same upon the order of the court confirming the sale of said property to Joe Morris in said foreclosure action. The said application was sustained by the district court, and the writ of assistance issued.
¶8 A part of the findings of fact by the court is as follows:
"Here is the way the situation looks to me. After this mortgage was foreclosed, this defendant's rights were precluded and the judgment enjoined him from ever asserting any right, title, interest or possession. The possession, under any theory of ownership or possession, up to the date of that judgment, all of his interests were precluded. He was done. And it was his duty to surrender possession to the purchaser at sheriff's sale voluntarily. Now, it seems that he anticipated what he was going to be required to do and voluntarily surrendered possession and left the premises and they were vacant until, as he says, on the 7th day of June, 1930. What is the date of this judgment foreclosing the mortgage? Mr. Robertson: The 5th day of September, 1929. The Court: When did Mr. Taylor testify he surrendered possession? Mr. Robertson: He wasn't in possession at the time the mortgage was foreclosed at all. The Court: Well, he surrendered possession some time before that. Mr. Taylor: There had been a tenant in there, Judge, and the property had been vacant. The Court: How long had you been out of possession when the mortgage was foreclosed? Mr. Taylor: Well, from the date - when the mortgage was foreclosed. The Court: Yes. Mr. Robertson: I think possibly two years. Mr. Taylor: I hadn't been living in the house; there had been a tenant in there, and I received the rents until the receiver was appointed, then the receiver received the rents. The Court: You had been collecting the rents up until the time the receiver was appointed? Mr. Taylor: Yes, sir. The Court: But you had not lived in the property for how long? Mr. Taylor: Well, I hadn't lived in the property, Judge, since about 1926, sometime in 1926.
"The Court: This action is a suit in equity, in a court of equity, foreclosing real estate mortgage. This writ of restitution is part of the action; it grows out of the action and is in equity. Now then, the defendant Taylor is forever precluded from asserting any right, title or interest out of the relationship that existed up to the time of the foreclosure of the mortgage. Now, that doesn't mean that he never could assert a title to that property or retake possession. It merely means that he is precluded from over asserting any right, title, interest or possession under the facts, pleadings and evidence in that case. Now, when would he ever have a right to retake possession of that property? He never would have a right to retake possession of that property until he had purchased some title and gained some right that would give him at least color of title or right of possession; and he could not by force go there and break into the building. He had no right to dispute her title to that property. She had some property in there. She claims she had an automobile in the garage and was in possession and had been for several days, and he with force of arms went there and broke the doors and went in and took possession. forcibly; and he has no right, title, interest, possession or right of possession under any right, and doesn't claim any. His only excuse for taking the possession, is based upon the theory that it had been sold at tax title sale and the county owned it, and he intended to put in a bid, and he did put in a bid and he overbid Mr. Schuman, or he tried to; but it did not avail him anything. The bid was not accepted. Schuman's bid was accepted. We are not trying the merits of that controversy, but at any rate, he admits he did not get title, but that Schuman got title. Her testimony is that in May preceding the time that Mr. Taylor claims he took title to it, she went into possession under a contract of sale; that she bought it but that the deed was not executed until the 28th day of June, 1930, and she was in actual physical possession on the date Mr. Taylor took possession.
"Miss Arnold: Could I remind you this, no one had any title.
"The Court: I am reasoning on her theory up to that point. It is clear to the court, up to that point, that he is a mere trespasser of that property, just a plain trespasser, with no greater rights than any stranger walking down the street and going there and kicking the door in and moving in and stating, 'I am going to stay here until somebody is big enough to put me out.' That is what it meant.
"Now, taking another theory of it, all the rights Joe Morris had in the property by virtue of his sale had been precluded by the tax title sale. He was out. He was a stranger, after the county had sold it at tax title sale, either in the first sale to the county or the resale to Schuman or the county.
"Now, let's take this side of it. Joe Morris' rights had been precluded by the sale. The mortgage foreclosure and all of the judgment under the foreclosure, had been canceled in the tax title sale deed, and nobody had any rights under that. That had all gone, and the county has title to the property. And then Morris Schuman has title to the property. This plaintiff, Mrs. Harrison, takes possession under a contract for a deed with Morris Schuman, I think in May, 1930, and was in actual, physical possession on the date that this defendant entered the property.
"Now, then, if the tax title sale is legal, and the presumption of law is that it is legal in every detail and every respect, then that tax title deed foreclosed the interest of the equities of all persons. Joe Morris, whatever he might have had, Frank Taylor, whatever he might have had, the purchaser at the sheriff's sale, whatever he might have had. It absorbed all of the equities and the title stood in the form of a tax title deed in the name of one Morris Schuman. And here comes in a number of strangers down the street, all of them knowing there was a tax title deed out, a good tax title deed out, and there is a scramble for possession, and one gets in and holds it forcibly.
"The question then arises, if you accept that theory of it as correct, the question
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