Wilkinson v. Gibbons
| Decision Date | 11 March 1924 |
| Docket Number | 12958. |
| Citation | 224 P. 178,98 Okla. 93,1924 OK 311 |
| Parties | WILKINSON v. GIBBONS ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Section 9746, Comp. St. 1921, relating to tax resales by the county require that the tax deeds show a statement of the acts and proceedings had in making the sale and resale of the property, and under this statute the deed must set forth the acts and proceedings in connection with the tax sale and resale from which the court may determine that all legal requirements have been satisfied in order to constitute a deed valid upon its face; and, where the deed does not contain such statement, or contains only the legal conclusions of the officer executing the instrument in lieu of a statement of facts showing the performance of the acts required by the statute, the deed is void upon its face.
Under the provisions of section 9744, Comp. St. 1921, requiring that the notice of resale of land for delinquent taxes shall contain the name of the last record owner of the real estate offered for sale as shown by the records in the office of the county clerk, a notice which contains merely the name of the record holder under a stray deed from strangers to the title is insufficient.
The provisions of section 9744, Comp. St. 1921, requiring that the notice of a resale of real estate for delinquent taxes shall contain the name of the last record owner of said real estate, as shown by the records in the office of the county clerk, is mandatory, and the publication of such notice in the name of a stranger to the record title, nullifies the sale and renders the deed, executed pursuant to such sale absolutely void.
Commissioners' Opinion, Division No. 5.
Appeal from District Court, Stephens County; Cham Jones, Judge.
Action by J. W. Wilkinson against Nancy P. M. Gibbons and others. From a judgment for defendants, plaintiff appeals. Affirmed.
Wilkinson & Saye, of Duncan, for plaintiff in error.
Sandlin & Winans, of Duncan, for defendants in error.
This action was commenced in the district court of Stephens county, Okl., on the 3d day of February, 1921, by J. W Wilkinson, plaintiff in error, plaintiff below, against Nancy P. M. Gibbons et al., defendfants in error, defendants below, to recover the possession of lot 5 in block 12, in the city of Duncan, Okl.
The parties will be hereinafter referred to as they appeared in the trial court.
The plaintiff claims title to said real estate by virtue of a resale tax deed executed by the county treasurer of Stephens county on the 1st day of December, 1919, pursuant to a resale on the 26th day of November, 1919, for delinquent taxes assessed against said property for the year 1915.
The answer of the defendant denied the validity of said deed for the reason that no sufficient notice of the sale of said real estate for taxes had been given as required by section 4, c. 130, of the Session Laws of 1919, and that plaintiff's action was barred by the short statute of limitation contained in section 7419, Revised Laws of 1910.
Motion for judgment on the pleadings was filed by the plaintiff and overruled, exceptions allowed, and the cause proceeded to trial upon an agreed statement of facts. After the plaintiff's motion for judgment on the agreed statement of facts had been overruled and excepted to, the court rendered judgment in favor of the defendants. Motion for a new trial was filed and overruled, and the plaintiff brings the cause on appeal to this court upon petition in error and case-made claiming that the judgment of the trial court is contrary to the law and the evidence.
Without attempting to set out at length the facts embodied in the agreed statement, it is sufficient to say that it stands admitted on this record:
First. That plaintiff's action was not commenced within one year after the recording of his resale tax deed.
Second. That the resale occurred on the 26th day of November, 1919, and that the tax deed does not show upon its face that the sale was begun on the 24th day of November, 1919, and continued from day to day until November 26, 1919.
Third. That the resale tax deed does not show upon its face the manner in which the notice of resale was advertised and published, further than to recite that said notice of resale had been duly and legally advertised for sale and sold on November 26, 1919.
Fourth. That the notice of resale ran in the name of R. N. Hickey, who in the year 1901 had obtained a deed from A. M. Miller and Emma Miller, who were then and had at all times been strangers to the title, and whose deed to R. N. Hickey had been recorded in the office of the county clerk of Stephens county, Okl., on the 8th day of January, 1908.
Fifth. That the defendant Nancy P. M. Gibbons was, on the 26th day of November, 1919, and had at all times since the 11th day of June, 1906, been the real owner of lot 5 in block 12, in the original townsite of Duncan, Okl., by virtue of a patent from the Choctaw and Chickasaw Nations of Indians, but whose patent was not recorded in the office of the county clerk of Stephens county, Okl., until the 29th day of May, 1920.
Sixth. That the defendant Nancy P. M. Gibbons was on the date of the trial and had at all times since the 11th day of June, 1906, been in the exclusive possession of said real estate.
Seventh. That the defendant Nancy P. M. Gibbons at the time of the trial tendered into court, for the use and benefit of the plaintiff, the whole amount of the taxes, penalties, and costs which she would be legally bound to pay if redeeming the land from tax resale, and all other sums as the court might order.
At the threshold of this case we are met with the claim that under the provisions of section 7419, Revised Laws of 1910, plaintiff's action is barred by the statutes of limitation. It is insisted, upon the other hand, however, that the short statute of limitation contained in section 4, c. 130, Session Laws of 1919, operated to repeal by implication the limitation imposed by section 7419, and that therefore there was no bar upon plaintiff's right to institute his action to recover the possession of said property, except the general statutes of limitation contained in the Oklahoma statutes.
In our view of this case, it is not necessary to pass upon this question, and we therefore pass over the same without discussion or decision, and for the purpose of this case will assume, without deciding, that plaintiff's cause of action is not barred by any statute of limitation.
This being a suit in ejectment for the possession of real estate the plaintiff must recover, if at all, upon the strength of his own...
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