Wilcox v. Westerheide
| Decision Date | 17 June 1947 |
| Docket Number | 31354. |
| Parties | WILCOX et al. v. WESTERHEIDE et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Oct. 21, 1947.
Appeal from District Court, Osage County; Hugh C. Jones, Judge.
Action by Joseph S. Westerheide and others against Mart Wilcox by Josephine Wilcox, administratrix, and others to cancel tax deeds upon a tract of land. Judgment for the plaintiffs and the defendants appeal.
Judgment affirmed in part and reversed in part with directions.
Syllabus by the Court.
1. Where a judgment is reversed on appeal and the cause is remanded for further proceedings, and thereafter it appears that it is necessary to make an additional party defendant in order to completely dispose of the case the trial court should, upon a proper showing, make such party a defendant.
2. Where a tender, as required by 68 O.S.1941 § 453, is made in a pleading, it is not necessary to deposit the money in court when the pleading is filed, but the time when it shall be deposited is, by 12 O.S.1941 § 309, left to the discretion of the trial court, except that it must be deposited prior to the rendition of judgment in favor of the party making the tender.
3. The holder of a void tax deed who takes possession of the property covered by such deed is not rightfully in possession of such property, and upon the cancellation of his tax deed and recovery of possession by the rightful owner, he is liable to the rightful owner for the reasonable rental value of the premises during such time as he was in possession, under the provisions of 23 O.S.1941 § 62, together with interest at the legal rate thereon.
4. A notice of application for a certificate tax deed served by a person not qualified to make such service under the applicable statutes is of no force and effect, and a deed based upon such service is void.
5. Record examined, and held that the trial court erred in computing the amount of taxes, penalties, interest and costs to be paid by plaintiffs, and that because of the incomplete condition of the record the judgment must be reversed on this point, with directions.
T. F Dukes, of Hominy, R. E. Havens and Eimer J. Black, both of Pawhuska, for plaintiffs in error.
Hamilton & Kane, of Pawhuska, and Twyford & Smith, of Oklahoma City, for defendants in error.
This action was originally brought to cancel certain tax deeds upon a 320 acre tract of land in Osage County, which the plaintiffs, Joseph Westerheide, et al., asserted were void, and for rentals during the time the said land was wrongfully occupied by defendants Wilcox et al. (By agreement of the parties and by permission of the court only the issue of title was tried, the court withholding a determination of rents.) From a judgment holding the tax deeds under which defendants occupied valid, plaintiffs appealed to this court, this court holding the tax deed void. Westerheide v. Wilcox, 190 Okl. 382, 124 P.2d 409. On that appeal we reversed the judgment of the lower court and remanded it for further proceedings not inconsistent with the views therein expressed, and with directions to the trial court to permit the plaintiffs to comply with the statute relative to tender (citing Schulte v. Herndon, 184 Okl. 77, 84 P.2d 607), within 10 days after the mandate was entered of record.
When the mandate was entered of record in the lower court, plaintiffs promptly made a written tender of all taxes, penalties, interest, and costs required for the redemption of said real estate. On the day this tender was made plaintiffs also filed a motion reasserting their claim for rents, asking the court to determine the amount which they should be required to pay into court under their tender, and to hold the money intact until final judgment was rendered, so that any judgment rendered in favor of plaintiffs and against defendants for the use of the land could be satisfied therefrom. In the same motion they requested that Elmer J. Black, who had theretofore obtained another tax deed on the premises, be made a party to the action, for the reason that the tax deed acquired by him was really acquired for the defendants, and was simply a payment of taxes by them.
The trial court made Black a party to the action, permitted the plaintiffs to file an amendment to their petition alleging the invalidity of Black's tax deed; denied repeated motions of the defendants asking that plaintiffs be required to pay the amount of taxes, interest, etc., covered by their tender into court, and overruled their objections to the making of Black a party defendant.
Upon the trial of the case the trial court found that the tax deed to Elmer J. Black was void because of defective service, and that a quitclaim deed made by him to defendant Josephine Wilcox was ineffective for the reason that it was based upon his void tax deed; that plaintiff was entitled to judgment quieting title and for immediate possession, and that there was due and owing from defendants to plaintiffs rent at $125.00 per year from December 31, 1932 to December 31, 1942 with interest on each yearly amount at 6 percent, amounting in all to a total of $1787.50; that the total amount of taxes paid by defendants up to December 31, 1942, with interest thereon at the rate of 6 percent from the date paid to December 31, 1942, was $1812.82, and required plaintiffs to deposit the difference of $25.32 in order to obtain judgment. Plaintiffs promptly paid said amount into court, together with all costs which the court adjudged against them, and thereupon the court rendered judgment cancelling the deeds and quieting the title in plaintiff Joseph S. Westerheide, who had succeeded to the right of the other plaintiffs in the action. Thereafter the court overruled the motion of defendants for new trial, and defendants appeal.
Defendants first contend that the trial court failed to properly carry out the mandate of this court on the first appeal in that it permitted plaintiffs to bring in a new party, Elmer J. Black, and failed to require them to pay into court, for the use and benefit of defendants, all taxes, interest, penalties, and costs assessed against the land and paid by defendants.
Examination of the record discloses that shortly after the written tender was made by plaintiffs, defendants filed a motion that plaintiffs be required to pay into court, on their tender, taxes for various years including the years 1933, 1934, 1935 and 1936. This motion was filed prior to the time Elmer J. Black was made a party defendant. It also appears from the record that the tax deed held by Elmer J. Black, dated December 6, 1938, was based upon unpaid taxes for the year 1933, and that he also paid the taxes for 1934, 1935 and 1936. Elmer J. Black was the husband of defendant, Maude Q. Black, and was one of the attorneys for the defendants in the action. It also appears that after obtaining the tax deed he had deeded a portion of the lands which he claimed to have acquired by said tax deed to the defendant Josephine Wilcox, and plaintiffs contended that his action in paying the taxes and acquiring the deed was for the benefit of the other defendants. Under these circumstances we think that Black was properly made a party so that the amount required to be paid in by plaintiffs in order to reimburse defendants for taxes paid could be finally determined. Whether or not his tax deed was valid was also necessary to the determination of that question, since if it was valid plaintiffs would have no title and would not be required to make their tender good. The trial court did not err in making Elmer J. Black a party defendant so that there might be a complete adjudication of the issues involved.
The question of whether the tender should be made good by payment into court, under the peculiar situation existing in this case, was also a matter for the sound discretion of the trial court, subject only to the requirement that any sum found necessary to be paid by plaintiffs should be paid into court before judgment was entered in their favor. The invalidity of the deeds under which defendants claimed, except the deed to Elmer J. Black, had already been adjudicated by this court without any tender having been made, and the only question before the trial court when the case was remanded was the right of the plaintiffs to collect rent from the defendants while the defendants had been in occupancy of the premises, and their right to offset the amount of such rent against the amount to be tendered by them.
Our tender statute, 68 O.S.1941 § 453, specifies no definite time within which a tender made pursuant to that section shall be made good by the payment of money into court.
12 O.S.1941 § 309, provides as follows: 'When a tender of money is alleged in any pleading, it shall not be necessary to deposit the money in court when the pleading is filed, but it shall be sufficient if the money is deposited in court at trial, or when ordered by the court.' Under this section the time of the deposit in court is left to the discretion of the court.
68 O.S.1941 § 360, in so far as pertinent, provides as follows: 'Whenever any action or proceeding shall be commenced and maintained before any court or judge * * * to recover the possession or title of any property, real or personal, sold for taxes or to invalidate any deed or grant thereof for taxes * * * the true and just amount of taxes due upon such property or by such person if in dispute, must be ascertained and paid before the judgment prayed for, * * *.'
The above appears to be the only section of our statute specifying a time at or prior to which the tender must be made good. Up to that point the matter is left to the trial court...
To continue reading
Request your trial