Kenworthy v. Murphy

1951 OK 13, 228 P.2d 382, 204 Okla. 233, 1951 Okla. LEXIS 420

• Court: Supreme Court of Oklahoma
• Decided: January 23, 1951
• Docket: 33860
• Status: Published

Opinions

JOHNSON, J.

The parties here occupied reverse relative positions in the trial court, and hereafter they will be referred to as they there appeared.

Plaintiff brought this action to quiet title to the N.W. 1/4 of S.E. 1/4 section twenty (20), twp. sixteen north (16N), range 6 east (6E), in Lincoln county, Oklahoma, basing his claim upon color of title, and adverse possession and payment of taxes for more than 20 years. Other parties were defendants, but all defaulted except Mary S. Reynolds, who filed a disclaimer, and I. E. Kenworthy, who filed an answer claiming the right to possession and title in himself, and denying the allegations of plaintiff. The cause was tried to the court, resulting in a judgment for plaintiff, from which defendant appeals.

It is admitted that the record title to the land in question is in the defendant. The facts upon which plaintiff seeks to sustain his contentions are substantially as follows: On November 7, 1921, county treasurer, O. L. Rea, of Lincoln county, Oklahoma, sold the land in question to plaintiff, John Murphy, the highest bidder, for the delinquent taxes for the year 1920 for the sum of Eighteen and 35/100 Dollars and issued to him a “County Treasurer’s Certificate of Tax Sale.” He took possession immediately and paid the taxes each year thereafter, having each succeeding annual tax payment endorsed on said certificate as provided by law, 68 O. S. 1941 §433e. Upon taking possession under the tax sale certificate as aforesaid, he fenced the land and rented part of it for pasture and part for farming for a period of more than 20 years. Plaintiff never made application to the county treasurer for a tax deed, which could have been done anytime after the expiration of two years, upon giving the record owner 60 days’ notice as required by statute. Until this was done the defendant had the right of redemption, and plaintiff had only a lien for all amounts paid plus legal rate of interest. Webster v. Skinner, 200 Okla. 553, 198 P. 2d 213. But plaintiff contends that this tax certificate was color of title, and that through it and his adverse possession for more than 15 years he has acquired title by prescription.

A certificate of purchase issued on a tax sale does not constitute color of title. Harrell v. Enterprise Savings Bank, 183 Ill. 538, 56 N. E. 63; McKeighan v. Hopkins, 14 Neb. 361, 15 ; Salt Lake Investment Co. v. Fox, 32 Utah 301, 90 P. 564, 13 L. R. A. (N.S.) 627, 125 Am. St. Rep. 865. In the later case of Bozievich v. Slechta et al., 109 Utah 373, 166 P. 2d 239, the Utah court in referring to the rule announced in Salt Lake Investment Co. v. Fox, supra, said:

“In Salt Lake Investment Co. v. Fox, supra, this court held that a purchaser of a tax sale certificate did not hold the property adversely to the record owner because by the statute of this state the owner had a definite period of time within which to redeem and when the purchaser took possession of the property by virtue of a tax sale certificate it was ‘in effect, an admission on his part that he held subject to the owner’s right of redemption.’

“It will be noted that possession in the above case was taken by virtue of a tax sale certificate. Such a certificate does not purport to convey title to the land. The purchaser of a tax sale certificate knows that the legal owner has a certain definite period within which he may redeem from the sale and until ,such period has passed it is presumed "that when such purchaser takes possession he takes it in subordination to the right of the owner and not adversely to him . . .”

But in Tennessee, a tax certificate describing the boundaries of the premises is color, Winter v. Hainer (Tenn.) 64 S. W. 44. And in Arkansas it is held that a certificate of purchase is color, since the statute makes the sale, and not the deed, the investiture of title so far as adverse possession is concerned, Worthen v. Fletcher, 64 Ark. 662, 42 S. W. 900. However, in Honeyman v. Andrews, 124 Okla. 18, 253 P. 489, we cited with approval Salt Lake Investment Co. v. Fox, supra, wherein we said that possession under a tax sale certificate is, during the period of redemption, an admission that the possession is subject to the owner’s right of redemption, and is not adverse to the true owner. To the same effect was the holding in the case of Webster v. Skinner, supra.

We would emphasize the binding acts of plaintiff. Each year he not only paid the taxes, but had the amount thereof indorsed on the tax sale certificate thus increasing his lien in amount and at the same time prolonging or extending the time in which he could ask and secure a tax deed. If he had not done so his time in which to secure such tax deed would have expired. 68 O. S. 1941 §433e, supra. Thus while he states he was holding under a claim of ownership, he was each year by his voluntary act specifically and irrevocably preserving his status as a lienholder, and each year adding to the amount of his interest bearing lien. While so acting he should not be heard to say that he preferred to hold as owner or intended to hold as owner and not as a lienholder.

Plaintiff’s right to so preserve his status as a lienholder cannot be denied. The fact that he did just that is fixed by statute, 68 O. S. 1941 §388, binding alike on plaintiff and defendant. No cited case upholds a right to so act and at the same time a right to claim to hold as an owner so as to obtain a title by adverse holding or prescription. The case of Anderson v. Mace, 99 Mont. 421, 45 P. 2d 771, does not so hold. It is not directly in point with a case where, as here, the certificate holder each year voluntarily preserved his status as a lienholder.

If a person should enter upon the land of another as a tenant and should each year do some specific voluntary act that would amount in law to an attornment so as to preserve his status as a tenant for a number of years, then surely he could not claim he had been holding in another capacity as owner or claimant of title. So it is here with the plaintiff who entered on this land as a lienholder, and each year thereafter preserved his status.as a lienholder.

It was contended that defendant was required to tender the taxes.

This is a suit to quiet title based on possession for more than 15 years under a tax sale certifciate. The tender statute has no application under the facts in this case.

From what we have said, and after a careful examination of the entire record, we think it was reversible error to render judgment for plaintiff. The trial court is therefore directed to vacate the judgment in favor of plaintiff, and to take further proceedings consistent with the views herein expressed.

Defendant asked that he have judgment here for cost of the case-made. He will be entitled to such judgment on compliance with the rules of this court.

ARNOLD, C.J., LUTTRELL, V.C.J., and WELCH, CORN, GIBSON, and HALLEY, JJ., concur. DAVISON and O’NEAL, JJ., dissent.