Treese v. Ferguson

Decision Date27 October 1925
Docket NumberCase Number: 13819
Citation1925 OK 876,251 P. 91,120 Okla. 235
PartiesTREESE et al. v. FERGUSON et al.
CourtOklahoma Supreme Court
Syllabus

¶0 1. Taxation -- Resale Tax Deed Reciting Conclusion as to Notice not Void on Its Face--Presumptive Evidence.

A resale tax deed, reciting as to notice of the sale of the lands, the conclusion, "the same were duly and legally advertised for sale at resale for the taxes, etc., is not void on its face because of failure to recite also the doing of the prerequisite acts constituting such notice. Such deed, thus containing in substance what section 9750, C. O. S. 1921, requires as to notice, is presumptive evidence in all the courts of this state that all acts and proceedings as to notice were duly performed by the proper officers. The burden of proving any failure to give such notice is on the one attacking such deed.

2. Same--Statutory Form Prescribing Conclusion as to Notice.

The Legislature has full power and authority to prescribe the form of tax deed. Where such form prescribes the recitation of a conclusion on the prerequisite facts, it is not necessary that such deed set forth such acts and proceedings in order to be valid on its face. The resale tax deed under syllabus 1 is substantially in the language of section 9752, Statutes, supra, providing the form of tax deed in this state, providing as to notice, a tax deed shall recite the conclusion, "that said lands had been legally advertised for sale for said taxes," etc., and, a fortiori, is not void on its face.

3. Same--Statute to Resale Tax Deed not in Conflict--One Scheme for Raising Revenue.

Section 9746, Statutes, supra, providing for the execution of a resale tax deed, is not in conflict with said presumptive evidence statute, under syllabus 1, or said form statute under syllabus 2. Said statutes are parts of the machinery in one scheme for providing revenue for the support of the government and must be construed together, the effectiveness of the tax deed to convey absolute title thereunder being of legislative--not of judicial--cognizance and policy.

4. Same--Resale Tax Deed Need not Contain Ultimate Facts as to Notice.

Said section 9746 negatives, and is incompatible with, the theory that a resale tax deed, in order to be valid on its face, should contain in detail the ultimate facts as to the giving of notice so that the court may determine its validity from the face thereof, by providing, as to form, that such deed shall contain merely "a summary statement of the matters and proceedings of such resale"; and by providing that the return of the treasurer filed in the office of the county clerk shall be evidence of the regularity, legality, and validity of all official acts leading to the resale. It cannot be said that because such evidence is required to be on file with the county clerk, it must also appear in the face of the deed, not being so specifically required by said statute. Pierce v. Barrett, 93 Okla. 283, 220 P. 652, and all other decisions in this jurisdiction in so far as they conflict herewith, are expressly overruled.

5. Same--Action Attacking Tax Deed not Void on Its Face--Barred by One-Year Limitation.

Under section 7419, Rev. Laws 1910, an action to set aside a resale tax deed which is not void on its face is barred when not commenced within one year after the recording of such deed.

Commissioners' Opinion, Division No. 2.

Error from District Court, Pawnee County; Redmond S. Cole, Judge.

Action by A. L. Treese et al. against Jo. O. Ferguson et al. to cancel resale tax deed. Judgment for defendants, and plaintiffs appeal. Affirmed.

Walter Mathews, for plaintiffs in error.

McCollum & McCollum, for defendants in error.

ESTES, C.

¶1 Parties appear in the same order as in the trial court. Plaintiffs sued defendants to cancel a resale tax deed, alleging that at and for several years prior to such sale, they had been the fee-simple owners of the real estate. They alleged that the county treasurer had executed such deed to defendant Jo. O. Ferguson on a purported resale on November 22, 1920. Judgment was for defendants, from which the plaintiffs appeal.

1. Plaintiffs contend that said deed was void on its face because it contained a conclusion as to the giving of notice, rather than a statement in detail of the ultimate facts constituting the notice, so that a court may determine its validity from the face thereof. Certain recent decisions of this court, herein overruled, are relied upon. The sole recitation as to notice contained in the deed is: "The same were duly and legally advertised for sale at resale for the taxes, costs, penalties, and interests," etc.

¶2 Section 9750, C. O. S. 1921, is:

"The deed shall be signed and executed by the county treasurer in his official capacity, and acknowledged before some officer authorized to take acknowledgments of deeds; and when substantially thus executed and recorded, in the proper record of titles to real estate, shall vest in the purchaser a full right, title and interest in and to said lands. Such deed shall be presumptive evidence in all of the courts of the state, in all suits and controversies in relation to the rights of the purchaser, his heirs or assigns to the lands thereby conveyed of the following facts: First That the real property deeded was subject to taxation for the year or years stated in the deed. Second. That the taxes were not paid at any time before the sale. Third. The real property deeded had not been redeemed from sale at the date of the deed. Fourth. That the property had been listed and assessed. Fifth. That the taxes were levied according to the law. Sixth. That the property was sold for taxes as stated in the deed, and was duly advertised before being sold, and to defeat the deed it must be clearly pleaded and clearly proven that some one of the above-named six requisites was wholly omitted and not done and a showing that any one or all of them was irregularly done will not be sufficient to defeat the deed."

¶3 In effect, said statute is simply a rule of evidence, providing presumptive evidence of six certain facts, one of which is that the property "was duly advertised before being sold." It is specifically therein provided that one seeking to defeat such deed must clearly plead and prove that some one of the six requisites was wholly omitted and not done, thus placing the burden of proof on the one attacking such deed. Of course no one would contend that the owner's property could be taken without notice. An act of the Legislature declaring such recitals to be conclusive would be unconstitutional. Wilson v. Wood, 10 Okla. 279, 61 P. 1045. It is quite customary and not ultra vires for the Legislature to prescribe rules of evidence. In Turman et al. v. Ingram, 83 Okla. 198, 202 P. 993, Mr. Justice Pitchford reviews the decisions of this court in this behalf. The opinion holds and demonstrates that the holding of this court had ever been at that late date that such legal conclusion as to notice in a tax deed does not render same void on its face. The tax deed in that case recited "that said lands had been legally advertised for sale and sold for said taxes", a legal conclusion, substantially in the form of both statute and the deed in the instant case. The opinion concludes:

"From the foregoing authorities, we are of the opinion that the treasurer's deed to Brown was not void upon its face on the ground that the same fails to recite notice. The failure to give the notice is a matter of defense."

¶4 In Adams et al. v. Callander, 93 Okla. 228, 220 P. 344, referring to the statute first quoted herein, prescribing such conclusion as to notice, says:

"It will be observed that this section sets out what the deed shall contain, and when these facts are incorporated in the deed, the deed is presumptive evidence that the statute has been complied with. A fortiori, if the deed does not contain these requirements, the deed is void upon its face and conveys no title" Gaffney et al. v. First National Bank, 94 Okla. 177, 221 P. 49.

¶5 While the courts of Missouri, and perhaps a few others, in certain cases, have, under peculiar statutes and conditions, held that a tax deed should recite the prerequisite facts, leaving it to the proper tribunal to determine whether those facts show a sufficient compliance with the statute, it is pointed out in Black on Tax Titles (2nd Ed.) sec. 403, page 505, that the able and well reasoned opinion in O'Grady v. Barnhisel, 23 Cal. 287, lays down the true doctrine. Declaring that the primary object of tax sales was to provide revenue for the support of the government, and that the provision in question was a part of the machinery for such purpose, and referring to a situation analogous to that obtaining in this state, that court said:

"It had become proverbial that a tax title was no title at all, and a sale for taxes was as near a mockery as any proceeding having the appearance of legal sanction could be. The principal cause was the difficulty in proving the various steps essential to the validity of such a sale, and the intention was to change the rule of evidence upon that subject, and throw the burden of proof upon the party asserting the invalidity. The view contended for would entirely defeat this intention, for if the facts are to be stated in the deed, the effect is precisely the same as to require them to be shown aliunde. The only difference is in the mode of proof, and the embarrassment is rather increased than diminished; for if any material fact be omitted, the deed is invalid and cannot be given in evidence. The purchaser is subjected to the double risk of an error in the previous proceedings, and a mistake in setting these proceedings forth in the deed, either of which would be fatal. These results are plainly in contravention of the purpose intended, and the language of the act is no less conclusive. The general provision is that the matter specified shall be stated, but in respect
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