Whitehead v. Garrett

• Decision Date: 14 October 1947
• Docket Number: 32930.
• Parties: WHITEHEAD et al. v. GARRETT.
• Court: Oklahoma Supreme Court

185 P.2d 686

199 Okla. 278, 1947 OK 303

WHITEHEAD et al. v. GARRETT.

No. 32930.

Supreme Court of Oklahoma

Oct. 14, 1947

Appeal from District Court, Kiowa County; Weldon Ferris, Judge.

Action by Otis Garrett against James E. Whitehead and others to quiet title to realty, wherein the defendants filed a cross-petition. From a judgment for the plaintiff, the defendants appeal.

Judgment reversed and cause remanded with directions to enter judgment for defendants.

HURST C.J., dissenting.

Syllabus by the Court.

1. The inclusion in a notice of resale of lands for nonpayment of taxes of the last quarter of the current year's taxes but which quarter was not delinquent at the date of the first publication of such notice, renders the notice fatally defective, and the resale and deed based thereon are invalid.

2. Fact that last quarter of current year's taxes involves a small sum of money does not validate tax resale proceeding which is otherwise invalid for reason stated in preceding paragraph.

3. Owner of fee simple title by virtue of unrecorded deed from record owner can maintain action to defeat resale tax deed as a cloud on his title.

4. In quiet title action, allegation in answer and cross-petition that defendant has title to the property involved and praying that his title thereto be quieted, is sufficient to authorize admission in evidence of unrecorded deed from record owner to defendant.

5. The third person defined by 16 O.S. 1941 § 15 (recordation statute) refers to one who is an innocent purchaser for value, or an incumbrancer, and does not apply to the purchaser at a tax resale or his transferee.

R Place Montgomery, of Hobart, for plaintiffs in error.

Tolbert Gillespie & Cunningham, of Hobart, for defendant in error.

BAYLESS Justice.

This action was commenced in the District Court of Kiowa County by Otis Garrett to quiet title to the west half of the southwest quarter of section 32-5-15. Garrett alleged that he was the owner and in possession of the property under a special warranty deed from W. B. Wright, who acquired his title by virtue of a resale tax deed executed May 20, 1943. Plaintiff alleged that the defendant, James E. Whitehead, was the holder of an $800 mortgage against the property, and that defendant, The Union Mortgage Company, was the holder of a $1,400 mortgage, both of which were barred by limitations. He further alleged the execution of a royalty deed conveying an interest in the royalty to defendant, the Pacific Royalty Company. Parties will be referred to as they appeared in the trial court.

The aforesaid defendants, Whitehead, the mortgage company, and the royalty company, filed a joint answer and cross-petition alleging the invalidity of the resale tax deed to Wright on many grounds. They alleged, among other things, that the notice of resale, first published on April 8, 1943, was void for the reason that it included as delinquent, taxes for the entire year of 1942, whereas taxes for the fourth quarter of 1942, did not become delinquent until May 1, 1943; that the purported resale tax deed and the deed from Wright to plaintiff constituted a cloud on their title, and that their title should be established and quieted as against plaintiff and other codefendants.

Plaintiff offered in evidence the resale tax deed and the warranty deed executed by Wright, conveying the property to plaintiff. The answering defendants offered in evidence a patent from the government to defendant, Whitehead, covering the property involved herein, a mineral deed conveying a one-eighth interest therein to The Pacific Royalty Company, a deed from Wm. M. Smitch and wife to the defendant, Whitehead, dated February 14, 1923. (Apparently defendant, Whitehead, had conveyed this property to Smitch prior to 1923.) This deed was properly acknowledged but had never been recorded. Plaintiff objected to its introduction in evidence for the reason that it had never been recorded and that defendant, Whitehead, did not allege its existence in his answer and cross-petition.

The Treasurer, testifying from the records, stated that he included in the calculation made for the resale notice taxes for the entire year of 1942. The trial court found that the resale tax deed was valid and rendered judgment quieting plaintiff's title to the property. The court specifically found that inclusion of the taxes for the last quarter of 1942, in the notice of resale was an inconsequential defect since the excess was only 53 1/4 cents. From this judgment the three defendants named above have appealed.

It is necessary to consider only one of the numerous assignments of error as it is well-taken and decisive in this case. The notice of resale is fatally defective under the authority of Reynolds v. Clemmens, Okl.Sup., 184 P.2d 758, not yet reported in State Reports; House v. Mainka et al., 196 Okl. 174, 163 P.2d 225; Sarkeys v. Evans, 197 Okl. 304, 170 P.2d 229, and Carman v. McMahan et al., 198 Okl. 367, 178 P.2d 626, for including all taxes assessed for 1942, when the last quarter thereof was not delinquent at the date of the first publication of the notice of resale, and the resale and deed based thereon are invalid. In Reynolds v. Clemmens, supra, we held: 'The inclusion in a notice of resale of lands for nonpayment of taxes of the last quarter of the current year's taxes, but which quarter was not delinquent at the date of the first publication of such notice, renders the notice fatally defective, and the resale and deed based thereon are invalid.'

The trial court's finding that the inclusion of the taxes for the last quarter of 1942, was an inconsequential defect was erroneous. In Young v. Boswell, 191 Okl. 680, 134 P.2d 592, we held the notice of resale void where it contained an excessive and illegal sum of 60 cents.

Plaintiff contends that only the record owner has the right to redeem from a tax sale, and therefore the defendants, not being the record owners, could not maintain their cross-petition. This contention is without merit. The two sections of the statutes cited by plaintiff, 68 O.S. 1941 §§ 420 and 432m, are not applicable in this case. However, both sections authorize redemption by parties other than the record owner. Section 432m provides: 'Redemption from 1939 resale.----

'The last record owner of any real estate sold at the 1939 tax resale, or any person having a legal or equitable interest therein, may redeem * * *.'

68 O.S. 1941 § 453 (the tender statute) provides:

'To defeat the deed, the person desiring to set the same aside * * * must show that he or the

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