Westerheide v. Wilcox

• Decision Date: 31 March 1942
• Docket Number: Case Number: 28148
• Citation: Westerheide v. Wilcox, 124 P.2d 409, 1942 OK 131, 190 Okla. 382 (Okla. 1942)
• Parties: WESTERHEIDE et al. v. WILCOX et al.
• Court: Oklahoma Supreme Court

1942 OK 131

124 P.2d 409

190 Okla. 382

WESTERHEIDE et al. v. WILCOX et al.

Case Number: 28148

Supreme Court of Oklahoma

Decided: March 31, 1942

Syllabus

¶0 1.TAXATION--Validity of tax deeds--Contiguous subdivisions of section of land of common ownership properly assessed and conveyed in tax deed as single tract.

A contiguous quantity of land containing a number of legal subdivisions of a section as described by government survey, of common ownership, and undivided by section lines, constitutes a tract for the purpose of assessment for ad valorem taxation within the meaning of sections 12616 and 12628, O. S. 1931, 68 Okla. St. Ann. §§ 181 and 294, defining the method to be employed in the assessment of lands, and may be assessed as one tract, and a tax deed predicated upon such assessment, conveying the land as a single tract

2.SAME--Tax deed issued to certificate holder void where notice of intention to apply for tax deed was not served on owner of land as required by statute.

A tax deed issued to a holder of a certificate of purchase at a tax sale of real estate is void when the written notice of intention to apply for a tax deed provided by statute is not served upon the owner of the land, if within the state, and upon the person in possession, where the land is occupied.

3.SAME--Action to set aside tax deed for failure to serve notice of intention to apply for such deed as required by statute not barred by oneor two-year statute of limitation.

An action to set aside a tax deed for failure to serve notice of intention to apply for such deed as required by section 12759, O. S. 1931, is not within section 12763, O. S. 1931, prescribing a one year limitation as to actions based upon such tax deeds.That part of Price v. Mahoney, 175 Okla. 355, 53 P.2d 257, holding to the contrary is overruled.Nor is the action barred by the two-year statute of limitations provided by subdivision 3, sec. 99, O. S. 1931, 12 Okla. St. Ann. § 93.

4.SAME--Tax deed void which showed upon its face that notice of intention to apply for deed was served by certificate holder and not by one designated by statute.

A tax deed which showed upon its face that the notice required by section 12759, O. S. 1931, was served by the certificate holder and not by one of the persons designated by section 171, O. S. 1931, is void.Channell v. Jones, 184 Okla. 644, 89 P.2d 769.

5.SAME--Service of notice of intention to apply for tax deed upon one holding under recorded tax deed void on its face was not service of notice upon "owner."

One holding under a recorded tax deed, void on its face, is not the owner of the land within the meaning of section 12759, O. S. 1931, and service of notice of intention to apply for a tax deed under a later certificate on the holder of such void deed is not service of notice on the owner.

Appeal from District Court, Osage County; Jesse J. Worten, Judge.

Action by Joseph S. Westerheide and others against Mart Wilcox and others.Judgment for defendants, and plaintiffs appeal.Reversed.

Sands & Campbell, of Pawhuska, and Twyford & Smith, of Oklahoma City, for plaintiffs in error.

D. B. Horsley and Elmer J. Black both of Pawhuska, for defendants in error.

RILEY, J.

¶1 This is an action in ejectment and to quiet title as against two tax deeds.

¶2The parties are in the same relation here as in the trial court and are herein referred to as plaintiffs and defendants as they appeared below.

¶3 The tax deeds are assailed upon the grounds that the land described in the deeds was not properly listed on the tax rolls for the years for which it was sold; that the taxes were not delinquent for those years; that the sales were not properly advertised and that no notice of intention to apply for a deed was served upon the owners of the land.

¶4Defendants denied the allegations with respect to above matters and in addition plead the statute of limitations; for failure of plaintiff to tender taxes, penalties, etc.; then pleaded champerty under sections 1939,1941), O. S. 1931, 21 Okla. St. Ann. § 548.

¶5The trial court did not order tender, but proceeded to try the case on its merits as to the validity of said tax deeds, and made general findings of facts and entered judgment for defendants.

¶6 The deeds here mentioned are both based upon tax sale certificates.They are for the same land, but the certificates are based on sales for delinquent taxes for different years.The first deed was issued to the Hominy National Bank, under date of September 26, 1930, based upon tax sale certificate issued in November, 1926, for delinquent taxes for the year 1925, and was filed for record December 10, 1930.

¶7 The other deed was issued to Maude Q. Black, dated October 5, 1933, based upon tax sale certificate issued at the November, 1928, sale for delinquent taxes for the year 1927.

¶8The defendantFirst State Bank of Fairfax is successor to Hominy National Bank and has filed a disclaimer.

¶9Plaintiffs contend that both deeds are void on the face thereof, and assert error of the trial court in not canceling same as clouds on their title.

¶10Defendants claim their said deeds are valid on their face and that the statute of limitations (sec. 12763, O. S. 1931) bars plaintiffs' action.

¶11 The ground relied upon by plaintiffs as rendering the Black deed void on its face is that it discloses a sale of more than one tract of land for a single consideration, thus reflecting an unauthorized and invalid assessment of the lands under sections 12616 and 12628, O. S. 1931.

¶12 The deed to the Hominy National Bank is assailed upon the same ground together with other grounds hereinafter mentioned.

¶13 As to the Black deed, defendants contend that it conveys but one tract of land, and in all other respects is regular and valid on its face and cannot be attacked after the expiration of one year from date of its recordation.

¶14 The land as described in the deed is: S.1/2 N.W.1/4;W. 1/2 S.E.1/4;S.W.1/4, see.2, twp.22 N., R. 9 E., 320 acres, Osage County, Oklahoma.Section 12616, O. S. 1931, provides, in substance, that all taxable lands in each township shall be listed in numerical order beginning with the lowest number section in the lowest number township in the lowest number range and ending in the highest number section, township, and range, with the number of acres in each tract set opposite the same in one column and the assessed value thereof in another column.

¶15Plaintiffs contend that the land conveyed as described in the deed constitutes three separate tracts within the meaning of the assessment statute, supra, and since the deed shows that they were all sold for a single aggregate sum, without setting forth the amount of taxes against each tract separately, the deed is void on its face.It was stipulated that the land was assessed as described in the deed under a single valuation.

¶16We cannot agree with plaintiffs in this contention.

¶17 The land as described consists of 160 acres in the S.W.1/4 of sec. 2; 80 acres in the S.1/2 of the N.W.1/4 of sec. 2, lying immediately north of the S.W.1/4, and 80 acres in the W.% of the S.E.1/4 of said sec. 2, immediately east of the 160 acres.It is all in one body in the same section, undivided by any highway or section line.The statute in force at the time the land was assessed and sold did not require that rural lands be assessed separately by any particular subdivision.This was first required by section 5, chap. 115, S. L. 1933.

¶18 In the instant case there is nothing in the deed to indicate that the land therein described is not one separate compact tract of land.

¶19 Furthermore, the law in force at the time the land was assessed, section 9666,C. O. S. 1921, in substance required each taxpayer to meet the tax assessor at the time and places set forth, and list property for taxation.By other provisions, real property was to be listed and valued biennially.The presumption is that the owner of said land complied with said law and listed and had valued the land here involved as one tract.

¶20 Under said statutes, lands lying in a contiguous body, all in the same section, owned by one person or two or more persons in common, for the purpose of taxation and sale, could have been, as the law then existed, listed, valued, assessed, taxed, and sold for delinquent taxes as a single tract.

¶21Turman v. Ingram, 83 Okla. 198, 202 P. 993, andDixon v. Bowlegs, 93 Okla. 47, 219 P. 665, are cases cited and relied upon by plaintiffs.The deed involved in Turman v. Ingram, supra, showed upon its face that three separate certificates were issued for the three parcels of land involved, each certificate showing the amount for which the respective lots or parcels were sold.The tracts were listed separately, sold separately, and a separate certificate was issued covering each tract.

¶22 In Dixon v. Bowlegs, supra, it appears from the opinion that the evidence showed that the land in question was assessed as two separate tracts.The deed recited a single consideration.The facts clearly distinguished those cases from the instant case.We, therefore, hold that the deed in question is not void on its face as disclosing a sale of more than one tract for a single sum due for taxes on the whole.

¶23Plaintiffs also contend that though the Black deed be not void on its face, it is nevertheless void for her failure to serve notice on the owners of the land of intention to apply for a deed as required by section 12759, O. S. 1931.

¶24 It appears from the record that no notice directed to Louie Henderson, as owner of the land, of intention to apply for a tax deed was issued or served upon Henderson, who was then the record owner, unless the then record owner was the Hominy National Bank or its grantee.There was some evidence, however, that notice directed to the Hominy National Bank, as the record owner and person in possession, was served upon Louie Henderson and Martha W. Henderson on June 18, 1933, 108 days prior to...