Welborn v. Whitney

• Decision Date: 07 April 1942
• Docket Number: 28570.
• Parties: WELBORN et al. v. WHITNEY et al.
• Court: Oklahoma Supreme Court

126 P.2d 263

190 Okla. 630, 1942 OK 142

WELBORN et al. v. WHITNEY et al.

No. 28570.

Supreme Court of Oklahoma

April 7, 1942

Rehearing Denied May 19, 1942.

Application for Permission to File Second Petition for Rehearing Denied June 2, 1942.

Syllabus by the Court.

1. 68 O.S.1941 § 382 requires that notice of sale of real property for delinquent taxes be given for three consecutive weeks preceding the sale, which means twenty-one days, and where notice of such sale was given for a lesser period, a resale tax deed founded thereon is void.

2. Such defect of notice is not cured by the provisions of 68 O.S.1941 § 452.

3. Section 1, chapter 159, Session Laws 1933 (repealed by article 16, chapter 66, Session Laws 1935), providing that no action to set aside a conveyance of real estate to a county under a tax resale should be commenced after one year from the date of execution of a deed to the chairman of the board of county commissioners does not apply where there is a vital defect in the proceedings relating to the sale of the property for taxes whereby the county treasurer was without power to sell said lands.

Appeal from District Court, Coal County; Roy Paul, Judge.

Action by O. E. Welborn and others against E. W. Whitney, C. N Russell and others to quiet title to certain realty, wherein defendants filed a cross-petition. From a judgment in favor of the defendants, the plaintiffs appeal.

Judgment affirmed.

CORN V. C.J., HURST, J., and WELCH, C.J., dissenting.

W. E Utterback, of Durant, and Hal Welch, of Hugo, for plaintiffs in error.

C. F Green, of Ada, and George W. Cunningham, Ralph J. May, and J. A. Horner, all of Tulsa, for defendants in error.

OSBORN Justice.

This action was instituted in the district court of Coal county by O. E. Welborn, Guy Sinnett and H. W. Sharrock, hereinafter referred to as plaintiffs, against E. W. Whitney, C. N. Russell and various other parties, hereinafter referred to as defendants, as an action to quiet title to certain real property located in Coal county. Plaintiffs' claim is predicated upon deeds from the county commissioners of Coal county. The county had acquired title to the property through a tax resale held on April 21, 1932. Defendants, as owners of the property, filed an answer and cross-petition in which it was alleged that the resale deeds to the county were void because notice of the sale of the lands was not given in the manner and form and for the period prescribed by law. Defendants sought a cancellation of the deeds to plaintiffs. The cause was tried to the court and judgment was entered in favor of defendants quieting their title as against the claim of plaintiffs, it being held that proceedings leading up to the sale of the lands were fatally defective.

Notice of the original tax sale held on November 4, 1929, was published in three weekly issues of a newspaper published in Coal county, but the first publication was made only 18 days prior to the sale.

68 O.S.1941, § 382 provides: "The treasurer shall give notice of the sale of real property for delinquent taxes by publication thereof once a week for three consecutive weeks, commencing after the first day of October, preceding the sale." We have consistently held that this statute required the publication of said notice for a period of 21 days and that a publication of said notice for a less period of time constituted a fatal defect in the tax proceedings rendering a sale pursuant to said defective notice void. Cadman v. Smith, 15 Okl. 633, 85 P. 346; Smith v. Bostaph, 103 Okl. 258, 229 P. 1039; Foster v. Board of Com'rs of Marshall County, 144 Okl. 14, 289 P. 347; Fickel v. Webb, 146 Okl. 16, 293 P. 206; Sarkeys v. Lee, 149 Okl. 287, 300 P. 383; Savery v. Board of Com'rs, 173 Okl. 284, 48 P.2d 275; Sitton v. Hernstadt, 106 Okl. 140, 233 P. 676; Jackson v. Turner, 107 Okl. 167, 231 P. 290; Cook v. Vincent, 111 Okl. 95, 238 P. 471. If we are to follow our previous decisions as above set forth, it appears settled that the publication of notice of sale for a period of less than 21 days deprived the County Treasurer of power to make a valid sale. This "power" to act is often inadvertently referred to as "jurisdiction". The sale and the deed issued in pursuance there were therefore void unless cured by other effective provisions of the statutes. In this connection it is urged that our prior construction of this statute is erroneous, and that we should depart therefrom. But said construction having been promulgated in 1905 and consistently followed to the present date, we feel that under the doctrine of stare decisis we should not re-examine the same or depart therefrom. This uniform construction has been placed upon the language of the statute for so long a period there has been abundant opportunity for the Legislature to give further expression to its will but it has not seen fit to change the same. See 25 R.C.L., p. 956, para. 212; McCain v. State Election Board, 144 Okl. 85, 289, P. 759; Manley v. Mayer, 68 Kan. 377, 75 P. 550, 1 Ann.Cas. 825; Lowman & H. Co. v. Ervin, 157 Wash. 649, 290 P. 221; People v. Bloom, 193 N.Y. 1, 85 N.E. 824, 18 L.R.A., N.S., 898, 127 Am.St.Rep. 931, 15 Ann.Cas. 932.

It is argued further that the failure to publish notice for the full period provided by law did not have the effect of invalidating the deed involved herein for the reason that the same constituted a defect in the proceedings which had been cured by certain provisions in our statutes, hitherto unnoticed, which are referred to as prospective curative provisions. We are referred to 68 O.S.1941, § 452, which is generally called the "presumptive evidence" statute, as follows:

"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 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. That 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 plead 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." We are also referred to certain language found in 68 O.S.1941 § 453, indicating that in order to defeat a tax deed it is necessary to show "the entire failure to do some one or all of the things of which the tax deed is made presumptive evidence." These provisions have been in our statutes since 1890 (§ 6223). A prospective curative statute is defined as one which, while marking out a course for the officers to pursue, at the same time declares that certain irregularities shall not vitiate any proceedings that shall be had under the statute. 4 Cooley, Taxation, 4th Ed. sec. 1584; Black on Tax Titles, 2d Ed., sec. 491; 61 C.J., p. 739, § 921.

Section 452, supra, in effect and by necessary intendment, provides that there are six requisites to a valid resale tax deed. We find demonstrated a clear legislative intent to the effect that the omission of any one of them would be fatal to the validity of the tax deed. The sixth requisite is that the property was sold for taxes as stated in the deed, and was duly advertised before being sold. It is noteworthy that the legislature made use of the word "duly". That word is defined in the case of Citizens' State Bank v. Morse, 60 Kan. 526, 57 P. 115, 116, as follows: "The word 'duly' is defined: 'In due time or proper manner; in accordance with what is right, required, or suitable; fittingly, becomingly, regular' (Stand. Dict.); 'in due manner; when or as due; agreeable to obligation or propriety, exactly, fittingly, properly' (Cent. Dict.). In Morrison v. Wells, 48 Kan. 494, 29 P. 601, there was a recital that plaintiffs had duly filed their motion. The court said: 'The word "duly" means properly, regularly, and, in this connection, indicates that the motion was regularly and properly filed.' 'Duly' in legal parlance, means, according to law. Brownell v. Town of Greenwich, 114 N.Y. 518, 22 N.E. 24 ; 10 Am. & Eng. Enc. Law, 315."

A more succinct definition is found in 19 C.J., p. 833, as follows: "The word has acquired a fixed legal meaning, and when used before any word implying action, it means that the act was done properly, regularly, and according to law, or some rule of law. It does not relate to form merely, but includes form and substance, and implied the existence of every fact essential to perfect regularity of procedure." 28 C.J.S., Duly, p. 585.

In view of the clearly defined meaning of the language employed, we hold that where the notice of a sale of property is for a lesser period than that prescribed by law, said property has not been duly advertised, and until said property has been duly advertised, that is, properly, regularly and according to law, there has been a total omission of one of the six requisites to a valid deed and thus the defect is not reached by the so-called curative provisions of...