Williams v. Bailey

Decision Date19 January 1954
Docket NumberNo. 35333,35333
Citation1954 OK 19,268 P.2d 868
PartiesWILLIAMS et al. v. BAILEY.
CourtOklahoma Supreme Court

Syllabus by the Court.

When land has been sold for taxes and the tax deed purchaser seeks to rely on the statute 12 O.S.1951 § 93 to create a title by prescription or to bar an effort of the owner at time of tax sale to show the tax sale was void, such purchaser must show recordation of tax deed and occupancy of the premises, both for the period of five years provided by such statute.

C. H. Baskin, Holdenville, for plaintiffs in error.

C. J. Davenport, Sapulpa, for defendant in error.

WELCH, Justice.

Wm. S. Bailey, Jr., commenced this action against George B. Williams and C. H. Baskin to quiet title to certain real estate.

The plaintiff alleged present possession of the property and averred ownership by virtue of a certain re-sale tax deed and county commissioners' deed, and which said deeds were executed and filed for record in 1941, and more than five years before the commencement of this action.

The defendants in pleading asserted ownership of the property under certain deeds from former record owners and averred the resale deed and commissioners' deed mentioned in the plaintiff's petition are void for reason there was no proper notice of resale, and that the notice of resale of the lands for nonpayment of taxes included taxes for the last quarter of the previous year, which were not delinquent at time of first publication of such notice. The defendants, with proper tax tender, prayed for cancellation of the said resale and commissioners' deeds, and such other relief as they were shown to be entitled to.

The plaintiff filed demurrer to the defendant's pleading stating therein that the defendants' answer is insufficient to constitute a defense to plaintiff's action, and that the statute of limitations has barred the right of said defendants to attack the deeds exhibited with the plaintiff's petition.

The demurrer was sustained by the court and the defendants declined to plead further, whereupon judgment was rendered for the plaintiff quieting title to the property in the plaintiff and as against the defendants.

It is well settled that the advertisement and sale of lands for the last quarter of the current year's taxes, not delinquent when the notice is first published, renders the sale and the deed based thereon invalid. Lind v. McKinley, 196 Okl. 4, 161 P.2d 1016; House v. Mainka, 196 Okl. 174, 163 P.2d 225; Sarkeys v. Evans, 197 Okl. 304, 170 P.2d 229; Carman v. McMahan, 198 Okl. 367, 178 P.2d 626, and Bridwell v. Goeske, 200 Okl. 244, 192 P.2d 656.

Herein, under the facts pleaded, and admitted as true by the demurrer, it was made to appear that the tax deeds mentioned in the plaintiff's petition are invalid and that the defendants are the record owners of the property involved.

The plaintiff made no averment or proof concerning the possession of the property for any certain period of time prior to the commencement of the action.

It is apparent that the trial court sustained the plaintiff's demurrer to the defendants' pleading on the basis of the admission of the pleading that the plaintiff's tax deed had been of record for more than five years, and on the basis of an application of the statute of limitation provided in 12 O.S.1951 § 93. In the resulting judgment for the plaintiff quieting title to the property it appears that the said statute of limitations was applied as being effective to take title out of the defendants and vest it in the plaintiff.

12 O.S.1951 § 93 was enacted in 1949, with emergency clause, and was approved by the Governor April 18, 1949. S.L.1949, p. 95, Title 12, § 1. The statute in material substance provides:

'Actions for the recovery of real property, or for the determination of any adverse right or interest therein, can only be brought within the periods hereinafter prescribed, after the cause of action shall have accrued, and at no other time thereafter '(1) An action for the recovery of real property sold on execution, * * * within five (5) years after the date of the recording of the deed made in pursuance of the sale * * *.

'(2) An action for the recovery of real property sold by executors, administrators or guardians, upon an order or judgment of a court directing such sale, * * * within five (5) years after the date of recording of the deed, * * *.

'(3) An action for the recovery of real property sold for taxes, within five (5) years after the date of the recording of the tax deed.

* * *

* * *

'(6) Numbered paragraphs 1, 2, and 3 shall be fully operative regardless of whether the deed or judgment or the precedent action or proceeding upon which such deed or judgment is based is void or voidable in whole or in part, for any reasons, jurisdictional or otherwise; * * *.'

The defendants contend that a void tax deed does not start running the statute of limitations provided in § 93 and paragraph 3 thereof, and further that the statute, in the application here given, and as purports to give effect to a void tax deed, and with an effect to thereby take the title to lands out of one person and vest it in another, violates the provisions of State and Federal Constitutions which prohibit a taking of property without due process of law.

A statute of identical terms as § 93, supra, except for paragraph 6 and some variances of the time periods prescribed, has existed since early Statehood. R.L.1910, § 4655; C.O.S.1921, § 183; Stat.1931, § 99; 12 O.S.1941 § 93; 12 O.S.Supp.1945 § 93. This court has many times held that a tax deed void on its face, or void for want of power or jurisdiction of the county treasurer to make sale of the lands involved, does not start the running of the period of limitations provided in these sections of the statute and other statutes of similar import, and that such statutes do not apply in an action to cancel void tax deeds. Smith v. Barry, 200 Okl. 619, 198 P.2d 400, and Thieman v. May's Adm'r, 203 Okl. 655, 225 P.2d 356, and cases therein cited.

The valid sale of land for taxes and the execution of proper deed thereafter is sufficient to vest the purchaser with title to the land, but a statute barring actions within a certain time after the mere recordation of a tax deed has never been regarded as prescribing a rule of property under and by which a purchaser at tax sale may acquire title. Herein we are brought to a consideration of whether or not the statute of limitations in § 93 is made effective to confer title.

Hereinafter in mention of § 93 the reference will be to the 1949 enactment, 12 O.S.1951 § 93.

The plaintiff suggests that § 93 was enacted in purpose to direct a different construction and application of its paragraph three than that given to the similar provisions of earlier statutes; that in paragraph six and paragraph three there is reflected an intendment of the Legislature to make tax deeds immune from attack five years after the date of the recording of the deed, and regardless of whether the deed or the proceeding upon which such deed is based is void.

It has been said that the right of an owner of real estate, in the possession thereof, to maintain a suit to quiet title thereto is never barred. Stolfa v. Gaines, 140 Okl. 292, 283 P. 563; Whitehead v. Bunch, 134 Okl. 63, 272 P. 878; Warner v. Mason, 109 Okl. 13, 234 P. 747.

This expression rests on the sound principle that a person who owns property, and who is in the possession of it, has more than a mere right of action. He has everything which the law can give him. To compel him to resort to law to gain back that which he has never lost, and under penalty of forfeiture, would deny him the protection of the Constitution against a taking of property without due process of law. People ex rel. Deneen v. Simon, 176 Ill. 165, 52 N.E. 910, 44 L.R.A. 801; Buty v. Goldfinch, 74 Wash. 532, 133 P. 1057, 46 L.R.A.,N.S., 1065.

In a recent Kansas case, Murrison v. Fenstermacher, 166 Kan. 568, 203 P.2d 160, 7 A.L.R.2d 1360, it was held:

'By virtue of the 14th amendment to the constitution of the United States prohibiting deprivation of property without due process of law the legislature lacks power to enact legislation which, directly or indirectly, without regard to his possession, divests of his land an owner holding a fee simple title of record by cutting down his ownership to a mere right of action which will be lost unless asserted by him in an action brought within a prescribed period of time.'

Section 93, as well as the earlier statutes of similar tenor, and the statute that it immediately supersedes, does not in express terms refer to possession. Section 93, in its literal terms, as would bar an action for the recovery of real property not brought within five years after the date of the recording of a void tax deed, assumes the character of the legislation described in the Kansas case, supra.

To apply the limitations as provided in paragraph three in the mere instance of the recording of a void tax deed and without a requirement of occupancy under the void instrument for any particular period of time, and in an effect to take title out of one person and vest it in another, as sought by the plaintiff herein, might well be argued to work a deprivation of property without due process of law.

It becomes apparent that to uphold the statute and make it effective to bar actions pertaining to rights in real estate, upon the recordation of a void tax deed and a lapse of time without suit commenced to attack it, it is necessary to include possession as a requirement of the statute in connection with the running of the period of limitation that is prescribed. In this requirement the limitation would be inoperative except during the time the possession of the property is being held under the void tax deed and in which the statute is...

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