Wilson v. Kirkpatrick

• Court: Oklahoma Supreme Court
• Writing for the Court: CULLISON, J.
• Citation: Wilson v. Kirkpatrick, 289 P. 306, 144 Okla. 44, 1930 OK 306 (Okla. 1930)
• Decision Date: 17 June 1930
• Docket Number: 18564.
• Parties: WILSON et al. v. KIRKPATRICK.

289 P. 306

144 Okla. 44, 1930 OK 306

WILSON et al. v. KIRKPATRICK.

No. 18564.

Supreme Court of Oklahoma

June 17, 1930

Syllabus by the Court.

Section 9750, C. O. S. 1921, known as the presumptive evidence statute, applies to resale tax deeds, and, when such deeds contain the things required by chapter 158, § 6, Sess. Laws 1923 (amending section 9746, C. O. S. 1921), and a recital of notice as required by section 4 of said amendment (amending section 9744, C. O. S. 1921), together with the recitals contained in the former statute (section 9752, C. O. S 1921), in so far as the same is applicable to resale tax deeds, then the resale tax deed is valid on its face, and, in the absence of a showing in the record sufficient to rebut the presumption created in favor of the deed by section 9750, C. O. S. 1921, the deed will not be set aside.

The resale tax deed herein examined and held valid on its face, under the decision by this court in Hatchett v Going, County Treasurer, 121 Okl. 25, 246 P. 1100.

Syllabus by the Court.

Record examined, and evidence held insufficient to rebut the presumption (as set out in syllabus 1 hereof) that the resale tax deed herein is valid.

Additional Syllabus by Editorial Staff.

Appeal from District Court, Pottawatomie County; Hal Johnson, Judge.

Action by Bertha Kirkpatrick against Robert Wilson and another wherein defendants filed a cross-petition. Judgment for plaintiff, and defendants appeal.

Affirmed.

Morse Garrett, of Tulsa, for plaintiffs in error.

T. G. Cutlip, of Tecumseh, for defendant in error.

CULLISON J.

This is an appeal from the district court of Pottawatomie county, Okl., wherein Bertha Kirkpatrick, as plaintiff, filed suit to quiet title in and to certain lands described in her petition, naming Robert Wilson and J. T. Johnson, as defendants. Plaintiff alleged, in substance, that she was the legal and equitable title holder and owner of the southeast fourth of the northwest fourth of section 29, in township 6, north of range 5, east of the Indian Meridian, situated in Pottawatomie county, Okl.; that she secured her title to said land through a resale tax deed dated April 22, 1926, a copy of which was attached to said petition; that the defendants were wrongfully withholding possession of said land from her; that she had been damaged by reason of such unlawful withholding of the possession of the land, for damages, and for other proper relief. The record discloses that the action was commenced within one year from the date of the resale tax deed in question.

The defendants, Wilson and Johnson, answered said petition, denying generally the allegations therein contained; admitted they were in possession of said land; alleged that the resale tax deed under which plaintiff claimed title was void, in that it failed to disclose on its face a statement of the proceedings had and done relative to the original and resale of the land for taxes, and recited only conclusions therein. Defendants further alleged that the resale tax deed was void, for the further reason that the grantors of defendant Wilson had paid the taxes assessed against the land for the year 1924, as evidenced by copy of tax receipt dated January 2, 1925, attached to the pleadings, and had made demand upon the proper officer for information as to any other taxes due, and did in fact pay such taxes as they were informed were due thereon; that there was not indorsed on the current tax records any delinquent taxes against said land, and denied that due and proper advertisement had been given of the original sale of the lands for taxes.

By way of cross-petition defendants alleged that the defendant Wilson was the legal owner of the fee-simple title and in possession of the described lands, and in said cross-petition set forth evidences of title; alleged the resale deed under which plaintiff claimed was void; tendered all delinquent taxes against the land; and prayed that plaintiff take nothing, and that the resale tax deed be canceled, and that the title of the defendant in and to the real estate be adjudged valid against the claim of plaintiff.

At the trial in the court below, the defendants objected to the introduction of the resale tax deed in evidence on the ground the same was void on its face and was insufficient to prove any issue in the case, which objection the trial court overruled.

At the conclusion of plaintiff's evidence, defendants demurred generally, which demurrer the trial court also overruled. Defendants then introduced in evidence the title record under which defendant Wilson claimed, together with other records and some slight evidence pertaining to the issue before the court.

The trial court entered judgment in favor of plaintiff, Bertha Kirkpatrick, adjudging her to be the fee-simple title holder and owner of the land in question, and entitled to the possession thereof, and the defendants were barred from asserting or claiming any right, title, or interest in said premises; from which judgment defendants appeal to this court.

The principal contention presented by defendants in their appeal is that the trial court erred in receiving in evidence the resale tax deed in question on the ground the same was void on its face.

Without setting out the resale tax deed here in question, it is sufficient to say that the same in form is identical with the resale tax deed upheld by this court in the case of Hatchett v. Going, County Treasurer, 121 Okl. 25, 246 P. 1100. The decision in Hatchett v. Going, supra, in so far as the question-whether the resale tax deed herein is void on its face is concerned-is controlling, and we, therefore hold that the resale tax deed in the case at bar is, on its face, a valid deed. Comp. St. 1921, §§ 9750, 9752, and sections 9744, 9746, as amended by Laws 1923, c. 158,§§ 4, 6.

Therefore the action and ruling of the trial court in overruling the objection to the introduction of the deed in evidence and in denying the demurrer to plaintiff's evidence was not error. Wolfe v. Brooke, 133 Okl. 128, 271 P. 669; Michie v. Haas, 134 Okl. 57, 272 P. 883.

Defendants further contend that the resale tax deed herein was void under and by virtue of the proceedings shown to have been had and performed by the county treasurer relative to the holding of said resale and by reason of insufficiency of such proceedings, and contend that the notice of the resale was insufficient.

Section 9744, C. O. S. 1921, as amended by section 4, chapter 158, Session Laws 1923, governing the procedure to be followed by the treasurer in the resale of property for delinquent taxes, reads in part: "The Treasurer shall give notice of the resale of such real estate by the publication thereof once each consecutive week for four publications preceding the resale in some newspaper in the county. * * * Such notice shall contain * * * the time and place of sale * * * the amount of all delinquent taxes, costs, penalties and interest accrued on the same * * * that sale provided for in this Act shall be held on the third Monday of April of each year in each county."

The notice of resale in the present case recites that the county treasurer of Pottawatomie county will sell at public auction for cash to the highest bidder at the county treasurer's office between the hours of 9 a. m. and 4 p. m. on the 19th day of April, 1926, the described land, for delinquent taxes for the year 1922, that the said real estate was acquired by Pottawatomie county, at tax sale, and the same has remained unredeemed for a period of two years from the date of purchase, and that no person has offered to purchase same for taxes, penalties, and costs due thereon, setting forth the amount of tax, costs, and penalties on said land, same being duly signed by the county treasurer.

The affidavit of publication of such notice recites that the notice was published in the regular edition of the Shawnee Morning News on the 20th and 27th days of March and the 3d and 10th days of April, 1926.

The record in the case at bar affirmatively shows that the county treasurer complied with the provisions of our statute relative to the giving of notice for the resale of real estate for delinquent taxes.

The defendants further contend that the return of resale is defective, in that it fails to show the specific date on which the property was sold.

Section 9746, as amended by section 6, c. 158, Session Laws 1923, governs the procedure to be followed by the county treasurer in making return of his resale, and the form of such return; said section provides: "Within thirty (30) days after such resale the County Treasurer shall file in the office of the County Clerk a return of his resale of such real estate, and retain a copy thereof in his office, which return must show the real estate so sold, the date upon which the property was resold, the name of the purchaser and the price * * * of such resale with an affidavit of its publication or posting, and showing the complete minutes of sale and that the same was adjourned from day to day until the sale was completed, and such notice and return shall be presumptive evidence of the regularity, legality and validity of all the official acts leading up to such resale."

The return of resale in this case (executed within 30 days from the date of sale) recites in part that the county treasurer of Pottawatomie county, pursuant to notice theretofore given according to law, did sell at public auction to the highest bidder for cash, between the hours of 9 a. m. and 4 p. m. on the 3d Monday in April, 1926, the property therein described reciting the date of such sale, the name of the purchaser, and the price paid by him therefor. A copy of said notice of resale, with affidavit of its publication, is attached...