Opinion by
THOMPSON, C.
This action was commenced in the district court of Muskogee county, Okla., by W. A. Foster, defendant in error, plaintiff below, against A. H. Sharum and Fred N. Hamilton, county treasurer of Muskogee counity, and dismissed as to Fred N. Hamilton, county treasurer, and proceeded to ¡trial against A. H. Sharum, plaintiff in error, defendant below, to set aside a resale tax deed and for cancellation of thel same and remove the same as a cloud upon the 'title of plaintiff, and to enjoin the plaintiff in error or any one claiming by, through, or under Mm from asserting title or any interest therein, and for costs.
The parties will be referred to as plaintiff and defendant as they appeared in the lower court.
The petition, in substance, alleges that plaintiff was tbe owner of and in possession of the east 18.69 acres of lot 1, section 6, township 15 north, range 19 ^ast; that he purchased the same from Samuel Gray, a Creed freedman citizen, on the 15th day of September, 1920, the lands being the allotment of the said Samuel Gray; that the defendant, A. H. Sharum, claimed th^ land by virtue of a resale tax deed issued by tbe co-unity treasurer and tbe county clerk of Muskogee .county, on the 5th day of December, 1921; that ithe deed was void for the following reasons: That the deed does not set out specifically tbe price, penalty, and costs of each ¡tract of land separately; that for tbe delinquent tax of 1918, the sale was held on November 10. 1919, at which the county became tbe purchaser; that the resale was bad on the 5th day of December, 1921, -which sale w!as advertised to be made on November 28, 1921, and that the first publication was November 3, 1921, less than two years between the date of the sale to the county and the beginning of the resale, and that said notice was not given for four consecutive weeks, the first publication being on the 3rd day of November and the fourth publication being on tbe 24th day of November, 1921; that tbe notice published did not give correctly ¡the name of the last record owner of tbe land; that the notice gave Samuel Gray as record owner when, in truth and in fact, W. A. Foster was the record owner, the deed of Gray Ito Foster being of record in the county clq’rk’s office in' Muskogee county, Okla.; that when the land was sold for taxes for 1918 and 1919, Samuel Gray was a minor and, not
withstanding his minority, the land was sold for delinquent taxes, penalties, and. costs and that penalties cannot be charged against a minor; that the treasurer failed to file in the office of the county clerk within ten days a return of sale; that the county treasurer did not execute the deed to A. H. Sharum within ten days after the resale; that plaintiff had tendered ito the counity treasurer, before filing this action, ,the sum of $99.13, the amount of all the taxes, penalties, and costs, assessed against the land, which tender was refused by the county treasurer, a copy of the resale tax deed was' attached to the petition.
The defendant, Sharum, filed his answler by w|ay of general denial, and further answered, claiming itiliat he was the owner of the land in controversy and admitting having the resale tax deed, a copy of which was attached to plaintiff’s petition, and claiming ithe land by virtue thereof, and denied the reasons given by plaintiff for setting ‘aside said deed and alleged that Samuel Gray was a minor and that the allegation against the excess penalty was personal to Samuel Gray and not a right accruing ito plaintiff, and prayed that plaintiff takq’ nothing by virtue of his action.
Plaintiff filed his ¡reply by way of general denial of all new matter set up in defendant’s answer.
The cause was tried ito thq court upon these issues and, at the close of all the testimony in the case, the court found iu favor of the plaintiff upon all propositions set forth in the plaintiff’s petition and, after requiring Itihat plaintiff should pay $99.13 taxes and penalties, rendered judgment in favor of the plaintiff and against the defendant.
Motion for new trial was filed, heard, and overruled, and exceptions reserved, and the cause comes regularly upon appeal by the defendant from said judgment.
The attorneys for defendant in théir brief set up six assignments of error, but content themselves in arguing the same under the one proposition as follows:
“There is little controversy over the facts in this case. The) main controversy being-over the conclusions of law reached by the trial court. While we do not intend to waive any assignment of error we will discuss the general proposition that ithe court érred in holding the resale tax deed, dated December 3, 1921, held by Mr. A. II. Sharum, is void.”
The record evidence in this case shows that the land in controversy belonged to Samuel Gray, a Greek fre'edman allottee; that he arrived at his majority on the 13th day of September, 1920; that he conveyed the land to plaintiff Foster by deed on the 15th day of September, 1920, and executed another deed on January 17, 1921, and placed both deeds of record immediately after their execution; that, on the 10th day of November, 1919, Muskogeq county, through its treasurer, bought the land at tax sale for delinquent taxes; that, o,n the 3rd day of November, 1921, the county treasurer advertised said land for resale for 'taxes and published the same on the third, tenth, seventeenth, and twtenty-fourth of November, the sale ito take placq on the 2Sth day of November, 1921, or 25 days after the first publication, said publication giving the name of the allottee, Samuel Gray, as the holder of the rejcord title; that the tax deed was issued to Sharum, on the 27th day of February, 1922, and recorded on the 2nd day of March, 1922, and this action was filed in June, 1922, and, in the face of said deed is the recital that ithe sale) was made to Sharum by the county treasurer on the 5th day of December, 1921; that the amount paid by Sharum was the sum of $60, being thej amount of the delinquent taxes; that, at the time this action was brought, there was due the sum of $99.13 delinquent taxes, which was tendered, before the filing of the action, to the county treasurer and was refused by him; that' the plaintiff, through his attorney, offered to pay the defendant ithe sum of $100 for a quitclaim deed, which offer was refused by defendant.
Upon thq record testimony in this case, there sieems to be at least three propositions that are fatal to the contention of counsel for defendant, first, that ifcwio full years had not expired from thcj date the county purchased the land for delinquent taxes before the county treasurer commenced his advertisement for thej resale of the land, which is required by section 9743, Comp. St. 1921, which is as follows:
“Whenever the county treasurer of any county shall bid off -any real estate in the name of his county, hq shall make a note of such bid and purchase upon his sales record, and if any real estate so purchased by the counity shall remain unredeemed for a period of two years from date! of sale, and no person shall offer to purchase the same for the taxes, penalty and costs duo thereon, the county treasurer .shall proceed to advertise and sell such real estate at public auction, as herein provided.”
The record shows thq date of purchase by the county to have been November 10, 1919, and the first date of publication of
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Opinion by
THOMPSON, C.
This action was commenced in the district court of Muskogee county, Okla., by W. A. Foster, defendant in error, plaintiff below, against A. H. Sharum and Fred N. Hamilton, county treasurer of Muskogee counity, and dismissed as to Fred N. Hamilton, county treasurer, and proceeded to ¡trial against A. H. Sharum, plaintiff in error, defendant below, to set aside a resale tax deed and for cancellation of thel same and remove the same as a cloud upon the 'title of plaintiff, and to enjoin the plaintiff in error or any one claiming by, through, or under Mm from asserting title or any interest therein, and for costs.
The parties will be referred to as plaintiff and defendant as they appeared in the lower court.
The petition, in substance, alleges that plaintiff was tbe owner of and in possession of the east 18.69 acres of lot 1, section 6, township 15 north, range 19 ^ast; that he purchased the same from Samuel Gray, a Creed freedman citizen, on the 15th day of September, 1920, the lands being the allotment of the said Samuel Gray; that the defendant, A. H. Sharum, claimed th^ land by virtue of a resale tax deed issued by tbe co-unity treasurer and tbe county clerk of Muskogee .county, on the 5th day of December, 1921; that ithe deed was void for the following reasons: That the deed does not set out specifically tbe price, penalty, and costs of each ¡tract of land separately; that for tbe delinquent tax of 1918, the sale was held on November 10. 1919, at which the county became tbe purchaser; that the resale was bad on the 5th day of December, 1921, -which sale w!as advertised to be made on November 28, 1921, and that the first publication was November 3, 1921, less than two years between the date of the sale to the county and the beginning of the resale, and that said notice was not given for four consecutive weeks, the first publication being on the 3rd day of November and the fourth publication being on tbe 24th day of November, 1921; that tbe notice published did not give correctly ¡the name of the last record owner of tbe land; that the notice gave Samuel Gray as record owner when, in truth and in fact, W. A. Foster was the record owner, the deed of Gray Ito Foster being of record in the county clq’rk’s office in' Muskogee county, Okla.; that when the land was sold for taxes for 1918 and 1919, Samuel Gray was a minor and, not
withstanding his minority, the land was sold for delinquent taxes, penalties, and. costs and that penalties cannot be charged against a minor; that the treasurer failed to file in the office of the county clerk within ten days a return of sale; that the county treasurer did not execute the deed to A. H. Sharum within ten days after the resale; that plaintiff had tendered ito the counity treasurer, before filing this action, ,the sum of $99.13, the amount of all the taxes, penalties, and costs, assessed against the land, which tender was refused by the county treasurer, a copy of the resale tax deed was' attached to the petition.
The defendant, Sharum, filed his answler by w|ay of general denial, and further answered, claiming itiliat he was the owner of the land in controversy and admitting having the resale tax deed, a copy of which was attached to plaintiff’s petition, and claiming ithe land by virtue thereof, and denied the reasons given by plaintiff for setting ‘aside said deed and alleged that Samuel Gray was a minor and that the allegation against the excess penalty was personal to Samuel Gray and not a right accruing ito plaintiff, and prayed that plaintiff takq’ nothing by virtue of his action.
Plaintiff filed his ¡reply by way of general denial of all new matter set up in defendant’s answer.
The cause was tried ito thq court upon these issues and, at the close of all the testimony in the case, the court found iu favor of the plaintiff upon all propositions set forth in the plaintiff’s petition and, after requiring Itihat plaintiff should pay $99.13 taxes and penalties, rendered judgment in favor of the plaintiff and against the defendant.
Motion for new trial was filed, heard, and overruled, and exceptions reserved, and the cause comes regularly upon appeal by the defendant from said judgment.
The attorneys for defendant in théir brief set up six assignments of error, but content themselves in arguing the same under the one proposition as follows:
“There is little controversy over the facts in this case. The) main controversy being-over the conclusions of law reached by the trial court. While we do not intend to waive any assignment of error we will discuss the general proposition that ithe court érred in holding the resale tax deed, dated December 3, 1921, held by Mr. A. II. Sharum, is void.”
The record evidence in this case shows that the land in controversy belonged to Samuel Gray, a Greek fre'edman allottee; that he arrived at his majority on the 13th day of September, 1920; that he conveyed the land to plaintiff Foster by deed on the 15th day of September, 1920, and executed another deed on January 17, 1921, and placed both deeds of record immediately after their execution; that, on the 10th day of November, 1919, Muskogeq county, through its treasurer, bought the land at tax sale for delinquent taxes; that, o,n the 3rd day of November, 1921, the county treasurer advertised said land for resale for 'taxes and published the same on the third, tenth, seventeenth, and twtenty-fourth of November, the sale ito take placq on the 2Sth day of November, 1921, or 25 days after the first publication, said publication giving the name of the allottee, Samuel Gray, as the holder of the rejcord title; that the tax deed was issued to Sharum, on the 27th day of February, 1922, and recorded on the 2nd day of March, 1922, and this action was filed in June, 1922, and, in the face of said deed is the recital that ithe sale) was made to Sharum by the county treasurer on the 5th day of December, 1921; that the amount paid by Sharum was the sum of $60, being thej amount of the delinquent taxes; that, at the time this action was brought, there was due the sum of $99.13 delinquent taxes, which was tendered, before the filing of the action, to the county treasurer and was refused by him; that' the plaintiff, through his attorney, offered to pay the defendant ithe sum of $100 for a quitclaim deed, which offer was refused by defendant.
Upon thq record testimony in this case, there sieems to be at least three propositions that are fatal to the contention of counsel for defendant, first, that ifcwio full years had not expired from thcj date the county purchased the land for delinquent taxes before the county treasurer commenced his advertisement for thej resale of the land, which is required by section 9743, Comp. St. 1921, which is as follows:
“Whenever the county treasurer of any county shall bid off -any real estate in the name of his county, hq shall make a note of such bid and purchase upon his sales record, and if any real estate so purchased by the counity shall remain unredeemed for a period of two years from date! of sale, and no person shall offer to purchase the same for the taxes, penalty and costs duo thereon, the county treasurer .shall proceed to advertise and sell such real estate at public auction, as herein provided.”
The record shows thq date of purchase by the county to have been November 10, 1919, and the first date of publication of
the notice of resale to have been November 3, 1921, seven days less than two years, required by the statute before the first publication could have been legally made by the county treasurer for the resale,' and wq must, therefore, hold that the publication was prematurely made.
In the recent case of Going, County Treas, v. Green, 103 Okla. 93, 229 Pac. 521, this court said:
“The Messiek deed, therefore, shows on its face that either the sale was made before the completion of the four weeks’ publication, or that ¡-lie first publication was made before the expiration oí the two years, and for this reason also, said deed was void.”
Second, that the four full weeks had not elapsed, a,s required by the statute, from the date of the first publication o,n thei 3rd day of November, 1921, to the 28th day of November, 1921, ¡the date set for the sale, in the notice and tile date fixe.d by the statute.
Tn the instant ease the publication notice and the deed show -that both conditions, which rendered the deq’d in'the above case void, are present in this case and, therefore. the deed in the present case must be he’d to brj void.
Third, the tax deed shows that the sale was made by the treasurer of Muskogee county to Sharum on the 5th day of December, 1921, which was a day different from the one set in the notice and the datq fixed by the statute, and no refcital is contained in tbe deed, showing that the sale was continued from tbe 28th day of November, the date set in tbe publication, from day to day until tbe 5th (jay of December, 1921, the date of the sale.
Sec. 9744, Comp. St. 1921, -among other things, says, in a proviso:
“Provided, that salqjs provided for in this act shall be held o,n -tbe fourth Monday of November of each year in each county.”
It has been held by this court that, if ithe sale cannot be completed on the day advertised, the treasurer may continue the same over from day to day until the sale of all lands advertised is completed, but that it must shovl ¡affirmatively in the deed that such a continuance was had.
In the case of Gulager et al. v. Coon, 93 Okla. 62, 218 Pac. 701, it appears that a sale was made on December 2, 1919, and thd provision of the statute, above quoted, was construed in that case, tbe court saying, in the body of the opinion:
“This count has repeatedly hold that a tax deed, which shows on its face, that a tax sale) was made at a time other ¡han provided by statute, is void” — Citing a long list of cases from ¡this court.
In that case where tbe landowner made a tender to the treasurer of the delinquent taxes, assessed against it for previous years, as was done by the landowner in this case, after the resale and execution of the tax deed by tbe treasurer, it did not operate to prevent the owner of thei land from redeeming said land from the -sale for delinquent taxes, where said resale and tax deed were void.
Prom the entirq record in ¡this case, it is very clear, in our opinion, ¡that the resale by the treasurer of Muskogee county of ¡the lands in controversy here was absolutely void and no rights could accrues to the purchaser thereunder under a deed executed by the treasurer to him under -such void,, sale and as was held in the case of Gulager et al. v. Coon, supra, the statute of limitation cannot run in favor of the holder of such a deed. The principles, above sec forth in this opinion, are in full accord with the case of Wright v. Colvin et al., 96 Okla. 15, 219 Pac. 919.
We arc, therefore, of the opinion that -the judgment of the trial court should be and is hereby, in all things, affirmed.
By fhe Court: It i.s so ordered.