Winters v. Birch

• Citation: 169 Okla. 237,1934 OK 569,36 P.2d 907
• Decision Date: 16 October 1934
• Docket Number: Case Number: 23594
• Parties: WINTERS et al. v. BIRCH.
• Court: Supreme Court of Oklahoma

1934 OK 569

36 P.2d 907

169 Okla. 237

WINTERS et al. v. BIRCH.

Case Number: 23594

Supreme Court of Oklahoma

Decided: October 16, 1934

Syllabus

¶0 1. Taxation--Action by Holder of Resale Tax Deed for Possession of Premises Held not Barred by One. Year Statutes of Limitation.

An action by the holder of a resale tax deed to obtain possession of real property purchased by him at a resale, held pursuant to sections 12753, 12754, and 12755, O. S. 1931, is not barred by the statute of limitations of twelve months contained in section 12756, O. S. 1931, nor by the one year limitation contained in section 12763, O. S. 1931.

2. Same--Case Overruled.

The case of Callander v. Brickner, 97 Okla. 37, 222 P. 531, in so far as it is in conflict with the views set out in this opinion, is hereby overruled.

3. Taxation--Validity of Resale Tax Deed--Recital as to Issuance of Certificate of Purchase to County Held Surplusage.

No certificate of purchase is required to be issued by the county treasurer when the county is the purchaser at the original tax sale, and any reference to the issuance of such certificate, contained in a resale deed, is unnecessary and mere surplusage.

4. Same--Syllabus of Former Case Adopted.

The syllabus in the case of Hatchett v. Going, 121 Okla. 25, 246 P. 1100, is hereby adopted as stating the law governing the construction of the resale tax deed here in question.

5. Same--Effect of Presumptive Evidence Statute.

Section 12760, O. S. 1931, known as the presumptive evidence statute, applies to resale tax deeds, and when such deeds contain the things required by section 12756, O. S. 1931, and a recital of notice of the resale, as required in the statute in force at the time of the resale, together with the recitals contained in section 12762, O. S. 1931, 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 on the record sufficient to rebut the presumption created in favor of the deed by section 12700, O. S. 1931, the deed will not be set aside.

6. Same--Resale Tax Deed Held Valid on Face.

The resale tax deed herein examined, and held valid on its face under the decision by this court in Hatchett v. Going, 121 Okla. 25, 246 P. 1100, and Wilson et al. v. Kirkpatrick, 144 Okla. 44, 289 P. 306.

7. Same--Action by Holder of Tax Deed-Petition Held not to Contain Allegations to Sustain Judgment Quieting Title.

Record examined, and the court finds the petition of plaintiff does not state facts sufficient to constitute a cause of action to quiet title nor to sustain a judgment quieting title.

8. Judgment--Nullity of Judgment Outside of Issues.

A judgment which is entirely outside of the issues in the case and upon matter not submitted to the court for its determination is a nullity and may be vacated and set aside at any time on motion of a party or any person affected thereby.

9. Same--Judgment Required to Conform to Verdict or Findings of Fact.

A judgment must follow and conform to the verdict, decision, or findings, and a judgment which goes beyond the findings of fact of the trial court and is not supported thereby is erroneous.

10. Same--Ejectment--Judgment for Plaintiff for Possession and Costs not Supported by Finding That He Had Been in Possession Since Date Prior to Filing Suit.

In an action for the recovery of specific real property, a finding of the court that plaintiff has been in the actual, open, notorious, and adverse possession of the premises continuously and without interruption from a date prior to the filing of the suit up to the date of trial will not support a judgment against defendants for possession and costs.

11. Same--Plaintiff in Ejectment Required to Show Defendant Unlawfully Withholds Possession.

In an action in the nature of ejectment, the plaintiff must show that the defendant unlawfully and without right keeps the plaintiff out of possession before the plaintiff can recover in the action.

12. Appeal and Error--Trial--Province or Trial Court to Make Findings in Law Action Tried to Court--Province of Supreme Court to Determine Whether Findings Supported by Evidence.

To make findings in a law action tried to the court without the intervention of a jury is the province of the district court as the trier of the facts, and the Supreme Court has power only to determine whether there is any substantial evidence to support such findings.

13. Same--Findings Inconsistent With Judgment not Modified on Appeal but Cause Remanded for Cure of Inconsistency by Trial Court.

In a law action tried to the court without the intervention of a jury, where the court makes findings of fact which do not support and are inconsistent with the court's judgment, this court is not at liberty to modify the trial court's findings of fact even though the findings are not supported by substantial evidence, but must remand the case to enable the trial court to make findings and render judgment consistent with each other and with the evidence properly before it.

Appeal from District Court, Logan County; Freeman E. Miller, Judge.

Action by E. E. Birch against C. C. Winters and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

H. M. Adams, for plaintiffs in error.

Merle G. Smith, for defendant in error.

SWINDALL, J.

¶1 This is an action in ejectment brought in the district court of Logan county by E. E. Birch, as plaintiff, against C. C. Winters and Lee Winters, as defendants, wherein Birch seeks to recover possession of the lot in his petition described and damages for withholding possession. Plaintiff in his petition alleges in substance that he is the owner in fee simple and holds the legal and equitable estate in and to lot 7 of block 54 in that part of the city of Guthrie known as Guthrie Proper, and is entitled to the immediate possession thereof, and he attaches to his petition, as an exhibit, copy of resale tax deed from the county treasurer of Logan county to himself, dated September 8, 1928. The petition further states that defendants unlawfully entered upon said premises on or about the 5th day of July, 1929, and have ever since kept plaintiff out of possession and have used said property for their own use and benefit, and that plaintiff has been damaged thereby in the sum of $ 100. The prayer of said petition is for possession of said premises described, for $ 100 damages, and for costs and other proper relief.

¶2 The defendants, C. C. Winters and Lee Winters, answered said petition, denying generally the allegations of the petition, and allege that the resale tax deed under which plaintiff claims is void on its face in that it shows that two separate tracts of real estate were sold and included in one tax sale certificate, that it does not show when any resale was held; that the tax deed was invalid because of defects in the notice of sale; that the county treasurer was without authority to sell said real estate at resale in September, 1928; that the lot involved was not sold at public auction to the highest bidder; that the notary who took the acknowledgment was disqualified; and that the cause of action is barred by the statute of limitations for the reason that the resale tax deed was recorded in the office of the county clerk on September 11, 1928, and the action was not commenced until the 29th day of October, 1929. The defendants pray only that plaintiff take nothing by the action and that same be dismissed.

¶3 The plaintiff filed a reply generally denying the allegations of the answer and alleging that plaintiff was in possession of the lot in dispute from the 8th day of September, 1928, until the 5th day of July, 1929, when the defendants, without color of title or any legal right whatsoever, entered Into possession.

¶4 The case was, on September 28, 1931, tried before the court without a jury, and at the close of all the evidence the court rendered judgment, specifically finding that plaintiff has sustained the allegations of his petition and is entitled to judgement accordingly; that the plaintiff is the owner in fee simple and has the legal and equitable title to the lot in question; and, quoting from the court's findings, "* * * that the said plaintiff at this time is in the actual, open, notorious, and adverse possession of said premises, that he has been in the actual, open, notorious, and adverse possession of the premises continuously and without interruption from the 11th day of September, 1928, until the present time. That the said defendants claim joint possession of said premises with the said plaintiff, but that such claim of said defendants was in no way adverse to the said plaintiff's claim for possession, and the said claim of the said defendants was without color of any title whatsoever," and that the defendants have no right, title, or interest in and to said premises. The judgment decreed the title and possession to be in plaintiff. quieted his title as against defendants and their assigns' canceled and removed as clouds on plaintiff's title all deeds or documents in the chain of title claimed by defendants; perpetually enjoined defendants from claiming any right, title, or estate in said premises adverse to plaintiff, or from commencing any suit to disturb plaintiff in his title or possession; ordered defendants to immediately remove from said premises and not re-enter thereon; and adjudged that defendants pay all costs of the action.

¶5 From this judgment defendants appeal to this court.

¶6 The defendants, plaintiffs in error herein, in their brief first make the contention that plaintiff's action is barred by the statute of limitations under the terms of section 12763, O. S. 1931. That section is as follows'

"No action shall be commenced by the holder of the tax deed or the former owner or owners of the land by any person claiming under him or them to recover possession of the land which has been sold and conveyed by deed for nonpayment of taxes or to avoid such

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