Thompson v. Yates

1938 OK 625, 85 P.2d 415, 184 Okla. 86, 1938 Okla. LEXIS 425

• Court: Supreme Court of Oklahoma
• Decided: December 6, 1938
• Docket: No. 24514.
• Status: Published

Opinions

HURST, J.

This is an action in ejectment and to quiet title to a certain lot in the town of Comanche. Plaintiff claims title under a certificate tax deed, a copy of which was attached to his petition. The defendants, the former owners, filed a general demurrer to the petition, which was overruled. They then filed an answer alleging that the tax deed is void for several reasons, one of them being that the “sale was not made at the time or place or in the manner required by law.” The defendants, in their answer, alleged that five-eighths interest in the property belonged to one of the individual defendants, and the remainder belonged to the estate of a deceased person, and they tendered five-eighths of the taxes. At the close of the evidence, the court, on motion of the plaintiff, directed that defendants, within 48 hours, deposit with the court clerk the amount necessary to redeem the property from the tax sale, and, upon failure of the defendants to comply with said order, the court entered judgment dismissing the defense and quieting the plaintiff’s title and awarding him possession of the property. The defendants have appealed by transcript.

The first question for decision is whether the court committed error in dismissing the defense because of the failure and refusal of the defendants to pay the amount required to redeem the property from the tax sale. In this we think the court committed no error. Schulte v. Herndon, 184 Okla. 77, 84 P.2d 607.

The next question for decision is whether the court committed error in entering judgment for the plaintiff. This requires a determination as to whether the tax deed is void on its face. It is contended by the defendant that the deed is void on its face for the reason that it shows the county treasurer to have been a competitive bidder at the sale. The plaintiff disputes this contention and argues that the deed is valid since it complies with the statutory form for certificate deeds. He also invokes the presumptive evidence statute.

The deed recites that it appears from the tax sale certificate:

“That Stephens county did on the 5 day of November 1928, purchase at public auction at the County Treasurer’s office, in said County, the tract, piece and parcel or lot of land lastly in this indenture described and which tract, parcel or lot of land was sold to Stephens County Oklahoma for the sum of $45.85 dollars, being the amount due on the following tract, parcel or lot of land returning delinquent for nonpayment of taxes, costs and charges for the year 1927, to wit: Lot 8 Block 33 town of Comanche, Okla. with all improvements thereon and it further appearing from said certificate that Stephens County was the highest and best bidder for said tract, piece, parcel or lot of land at said sale.”

While we think there is much merit in the argument of the defendants that the above recitals show the county to have been a competitive bidder at the sale, in view of the decisions in Keller v. Hawk (1907) 19 Okla. 407, 91 P. 778; Wall v. Kaighn (1914, Utah) 144 P. 1100, and the authorities cited in 61 C. J. 1346, note 14, we deem it unnecessary to base our decision on that proposition, as we think it clear that the deed is invalid for another reason, inferentially argued by the defendants and covered by the authorities they cite, namely, that the deed does not affirmatively recite facts showr • ing the right of the county treasurer to. bid. off the property in the name of the county.

Under section 12750, O. S. 1931 (68 Okla. St. Ann. sec. 391), the comity treasurer is authorized to bid off property in the name of the county at a tax sale “in case there are no other bidders offering the amount due.” This is the only condition under which the county treasurer is authorized to purchase property at a tax sale. In Hanenkratt v. Hamil (1900) 10 Okla. 219, 61 P. 1050, the court, quoting from a Kansas case, said that “before a counts'- or county treasurer can bid at all, the treasurer must wait until all others have failed or refused to bid on the land.”

The contention of the plaintiff that the deed must be sustained because it conforms to the form imescribed by statute is not well taken. In the early case of Norton v. Friend (1874) 13 Kan. 532, in an opinion by Justice Valentine discussing this same contention, it was said that “a tax deed should follow the form given by statute only so far as it can do so truthfully, and where it cannot do so truthfully, it should state the facts as they really exist. The form given by statute is for tax deeds for land sold at tax sales to individuals and when this form is used for tax deed for land sold to’ a county, the form of the deed should be so modified as to correspond with the law and the facts of the case.” In Magill v. Martin (1874) 14 Kan. 67, in an , opinion by Justice Brewer, it was said that “the statute says the deed shall be in substantial compliance with the form. It thus contemplates minor modifications, and those modifications must be such as to make the deed recite the truth and comply with the conditions of valid action.” This rule was followed in Hanenkratt v. Hamil, supra, wherein it was said that “the statutory form of .a tax deed is for voluntary .purchasers and where such a deed is based upon a sale to the county it must be modified to show the conditions upon which the county can lawfully become a purchaser.”

We are committed to the rule, which logically follows the foregoing rule, that “where the recital in a tax deed shows a sale to the county, and a deed obtained by virtue of the sale to the county, the deed must contain a recital to show the right of the county to purchase at such tax sale; and, unless such deed contains such recital, it is void on its face”. Wade v. Crouch (1904) 14 Okla. 593, 78 P. 91; Kramer v. Smith (1909) 23 Okla. 381, 100 P. 532; Hill v. Turnverein Germania of Oklahoma City (1920) 77 Okla. 242, 187 P. 920; Hanenkratt v. Hamil, supra. This rule obtains in the other jurisdictions having a statute similar to ours. 61 C. J. 1346; Cooley, Taxation (4th Ed.) sec. 1448; Reckitt v. Knight (1902, S. D.) 92 N. W. 1077; Rush v. Lewis & Clark County (1908, Mont.) 93 P. 943. The deed involved in this case contains no such recital. As was said in Hanenkratt v. Hamil, supra, quoting from a Kansas case, “there is nothing in the deed that shows or tends to show that the land could not have been sold to some other party for the same price, provided the treasurer had not made his bid or offer.”

The deed in the instant case recites that the property was sold for the amount due, and that the county was the highest and best, bidder, and it is argued that those recitals inferentially show that there were no other bidders willing to offer the amount due. We cannot agree with this contention. In several of the deeds involved in the cases herein cited there were similar recitals, and in those cases the deeds were held void on their face because they did not recite facts showing the right of the county treasurer to purchase.

The presumptive evidence statute (section 12760, O. S. 1931, 68 Okla. St. Ann. sec. 452) does not aid the plaintiff’s cause. That statute makes a deed which is in substantial compliance with the form prescribed by statute (section 12762, O. S. 1931, 68 Okla. St. Ann. sec. 454) presumptive evidence of six facts. The right of the county treasurer to purchase the property is not one of those six facts. The statute enunciates a rule of evidence relieving the tax deed holder of the necessity of proving the six facts of which the tax deed is made presumptive evidence, when such facts are recited in substance in the deed.

Wc therefore hold that the tax deed in question is void on its face for the foregoing reasons. Being void on its face, the petition did not state a cause of action-, and the plaintiff is not entitled to affirmative relief. However, since the defendants did not comply with the tender statutes, they were not entitled to have their general demurrer sustained.

The cause is reversed and remanded, with directions to the trial court to give the defendants a reasonable opportunity to comply with the tender statutes, and, if they do so comply, the court is directed to enter judgment for the defendants; but if they do not so comply, the court is directed to dismiss the cause without prejudice. The costs are divided equally.

OSBORN, C. J., BATLESS, V. C. J., and RILET, GIBSON, DAVISON, and DAN-NER, JJ., concur. WBLCI-I and CORN, JJ., dissent.