Welborn v. Whitney

1942 OK 142, 126 P.2d 263, 190 Okla. 630, 1942 Okla. LEXIS 168

• Court: Supreme Court of Oklahoma
• Decided: April 7, 1942
• Docket: No. 28570.
• Status: Published

Opinions

OSBORN, J.

This action was instituted in the district court of Coal county by O. E. Welborn, Guy Sinnett, and H. W. Sharrock, hereinafter referred to as plaintiffs, against E. W. Whitney, C. N. Russell, and various other parties, hereinafter referred to as defendants, as an action to quiet title to certain real property located in Coal county. Plaintiffs’ claim is predicated upon deeds from the county commissioners of Coal county. The county had acquired title to the property through a tax resale held on April 21, 1932. Defendants, as owners of the property, filed an answer and cross-petition in which it was alleged that the resale deeds to the county were void because notice of the sale of the lands was not given in the manner and form and for the period prescribed by law. Defendants sought a cancellation of the deeds to plaintiffs. The cause was tried to the court and judgment was entered in favor of defendants quieting their title as against the claim of plaintiffs, it being held that proceedings leading up to the sale of the lands were fatally defective.

Notice of the original tax sale held on November 4, 1929, was published in three weekly issues of a newspaper published in Coal county, but the first publication was made only 18 days prior to the sale.

68 O. S. 1941 § 382 provides:

“The treasurer shall give notice of the sale of real property for delinquent taxes by publication thereof once a week for three consecutive weeks commencing after the first day of October preceding the sale.”

We have consistently held that this statute required the publication of said notice for a period of 21 days, and that a publication of said notice for a less period of time constituted a fatal defect in the tax proceedings rendering a sale pursuant to said defective notice void. Cadman v. Smith, 15 Okla. 633, 85 P. 346; Smith v. Bostaph, 103 Okla. 258, 229 P. 1039; Foster v. Board of County Com’rs, 144 Okla. 14, 289 P. 347; Fickel v. Webb, 146 Okla. 16, 293 P. 206; Sarkeys v. Lee, 149 Okla. 287, 300 P. 383; Savery v. Board of Com’rs, 173 Okla. 284, 48 P. 2d 275; Sitton v. Hernstadt, 106 Okla. 140, 233 P. 676; Jackson v. Turner, 107 Okla. 167, 231 P. 290; Cook v. Vincent, 111 Okla. 95, 238 P. 471. If we are to follow our previous decisions as above set forth, it appears settled that the publication of notice of sale for a period of less than 21 days deprived the county treasurer of power to- make a valid sale. This “power” to act is often inadvertently referred to as “jurisdiction.” The sale and the deed issued in pursuance thereof were therefore void unless cured by other effective provisions of the statutes. In this connection it is urged that our prior construction of this statute is erroneous, and that we should depart therefrom. But said construction having been promulgated in 1905 and consistently followed to the present date, we feel that under the doctrine of stare decisis we should not reexamine the same or depart therefrom. This uniform construction has been placed upon the language of the statute for so long a period there has been abundant opportunity for the Legislature to give further expression to its will, but it has not seen fit to change the same. See 25 R. C. L., p. 956, par. 212; McCain v. State Election Board, 144 Okla. 85, 289 P. 759; Manley v. Mayer, 68 Kan. 377, 75 P. 550; Lowman & H. Co. v. Ervin, 157 Wash. 649, 290 P. 221; People v. Bloom, 193 N. Y. 1, 85 N. E. 824, 127 Am. St. Rep. 931.

It is argued further that the failure to publish notice for the full period provided by law did not have the effect of invalidating the deed involved herein for the reason that the same constituted a defect in the proceedings which had been cured by certain provisions in our statutes, hitherto unnoticed, which are referred to as prospective curative provisions. We are referred to 68 O. S. 1941 § 452, which is generally called the “presumptive evidence” statute, as follows:

“The deed shall be signed and executed by the county treasurer in his official capacity, and acknowledged before some officer authorized to take acknowledgments of deeds; and when substantially thus executed and recorded, in the proper record of titles to real estate, shall vest in the purchaser a full right, title and interest in and to said lands. Such deed shall be presumptive evidence in all the courts of the state, in all suits and controversies in relation to the rights of the purchaser, his heirs or assigns to the lands thereby conveyed of the following facts:

“First. That the real property deeded was subject to taxation for the year or years stated in the deed.

“Second. That the taxes were not paid at any time before the sale.

“Third. That the real property deeded had not been redeemed from sale at the date of the deed.

“Fourth. That the property had been listed and assessed.

“Fifth. That the taxes were levied according to the law.

“Sixth. That the property was sold for taxes, as stated in the deed, and was duly advertised before being sold, and to defeat the deed it must be clearly plead and clearly proven that some one of the above named six requisites was wholly omitted and not done and a showing that any one or all of them was irregularly done will not be sufficient to defeat the deed.”

We are also referred to certain language found in 68 O. S. 1941 § 453, indicating that in order to defeat a tax deed it is necessary to show “the entire failure to do some one or all of the things of which the tax deed is made presumptive evidence.” These provisions have been in our statutes since 1890. A prospective curative statute is defined as one which, while marking out a course for the officers to pursue, at the same time declares that certain irregularities shall not vitiate any proceedings that shall be had under the statute. 4 Cooley, Taxation (4th Ed.) § 1584; Black on Tax Titles (2d Ed.) § 491; 61 C. J. p. 739. »

Section 452, supra, in effect and by necessary intendment, provides that there are six requisites to a valid resale tax deed. We find demonstrated a clear legislative intent to the effect that the omission of any one of them would be fatal to the validity of the tax deed. The sixth requisite is that the property was sold for taxes as stated in the deed, and was duly advertised before being sold. It is noteworthy that the Legislature made use of the word “duly.” That word is defined in the case of Citizens State Bank v. Morse, 60 Kan. 526, 57 P. 115, 116, as follows:

“The word ‘duly’ is defined: ‘In due time or proper manner; in accordance with what is right, required, or suitable; fittingly, becomingly, regular’ (Stand. Diet.); ‘in due manner; when or as due; agreeable to obligation or propriety, exactly, fittingly, properly.’ (Cent. Diet.). In Morrison v. Wells, 48 Kan. 494, 29 P. 601, there was a recital that plaintiffs had duly filed their motion. The court said: ‘The word “duly” means properly, regularly, and, in this connection, indicates that the motion was regularly and properly filed.’ ‘Duly,’ in legal parlance, means, according to law. Brownell v. Town of Greenwich, 114 N. Y. 518, 22 N. E. 24; 10 Am. & Eng. Enc. Law, 315.”

A more succinct definition is found in 19 C. J. p. 833, as follows:

“The word has acquired a fixed legal meaning, and when used before any word implying action, it means that the act was done properly, regularly, and according to law, or some rule of law. It does not relate to form merely, but includes form and substance, and implied the existence of every fact essential to perfect regularity of procedure.”

In view of the clearly defined meaning of the language employed, we hold that where the notice of a sale of property is for a lesser period than that prescribed by law, said property has not been duly advertised, and until said property has been duly advertised, that is, properly, regularly, and according to law, there has been a total omission of one of the six requisites to a valid deed, and thus the defect is not reached by the so-called curative provisions of the statute.

This construction of the statute is in entire harmony with the line of cases from which we have previously quoted. To hold that a publication of a notice for a period less than that required by statute was a mere irregularity would require that they be overruled, since long prior to statehood it has been held that such a notice is void. In this jurisdiction a valid notice is essential to empower the treasurer to make a valid sale; therefore, the following quotations relating to the power of the Legislature to validate a proceeding by curative legislation are pertinent to the issue herein presented.

In the case of People v. Illinois Cent. R. Co., 310 Ill. 312, 141 N. E. 822, it is said:

“The power of the Legislature to validate by curative law any proceedings which it might have authorized in advance is limited to the case of the irregular exercise of power. It cannot cure the want of authority to act at all. People v. Wisconsin Cent. Railroad Co., 219 Ill. 94, 76 N. E. 80. ‘A tax levied which is not authorized by law is illegal, and the Legislature cannot validate it by a curative act.’ People v. Bell, 309 Ill. 387, 141 N. E. 187. The Legislature may pass a curative act waiving some defect in the exercise of an existing power, where the thing waived is not necessary to the existence of the power; but it cannot by a curative act make valid void proceedings. Roberts v. Eyman, 304 Ill. 413, 136 N. E. 736. It cannot give to the exercise by an unauthorized body of an assumed power which has no existence the effect of the act of an authorized body exercising a lawful power.

In the case of People v. Baum, 367 Ill. 249, 11 N. E. 2d 373, it was held:

“Legislature’s power to validate by curative law proceedings which it might have authorized in advance is limited to validating the irregular exercise of power, and it cannot cure a want of authority to act at all.”

In the case of People v. Hamilton, 373 Ill. 124, 25 N. E. 2d 517, it was held:

“The Legislature may validate the irregular or defective exercise of already existing power by statute where the proceeding sought to be cured is not one of the fundamentals of the power exercised, but it cannot validate the exercise of assumed power not existing at the time of its purported exercise.”

The reasoning employed in the case of McCord v. Sullivan, 85 Minn. 344, 88 N. W. 989, is pertinent to the issue here presented and is set out in detail as follows:

“It must follow from these authorities, both of our own and other courts, therefore, that a proper notice of sale in tax proceedings is jurisdictional, and an indispensable prerequisite to the right to make the sale. This brings us to the question of the validity of chapter 105, Laws 1901. Statutes of this character have been before the courts many times, and the subject, as to their validity, is fully discussed in Cooley, Const. Lim. 458. It is there laid down as a general rule that ‘If the thing wanting or failing to be done, and which constitutes the defect in the proceedings, is something the necessity for which the Legislature might have dispensed with by a prior statute, then it is not beyond the power of the Legislature to dispense with it by a subsequent statute.’ This, however, does not authorize the passage of healing statutes curing jurisdictional defects whereby vested rights may be taken away. The Legislature might, it is true, have provided a notice different from that required by section 1591, supra; but from that it does not follow that a failure of compliance with such a statute may be cured by subsequent legislation. A partial compliance with the statute as to jurisdictional matters is wholly ineffectual for any purpose, and the proceedings in this case as to the sale stand as though no attempt had been made to sell the property pursuant to the tax judgment at all. As said in the case of Kipp v. Dawson, supra, the taxpayer is interested in and entitled to have the kind and length of notice provided by law — First, the notice before judgment; and then, second, the notice before sale. He has the right to rely upon the notice being given, to insist upon a strict compliance with the statute, and may invoke a failure in that respect to defeat a title arising in virtue of such proceedings. It is true that the Legislature may cure irregularities and defects in tax proceedings, but that irregularities and defects which go to the jurisdiction of the officers to act, and affect the substantial rights of the property owner, cannot be cured by subsequent legislation, is thoroughly settled by authorities. Cooley, Tax’n (2d Ed.) 302. As said in Black, Tax Titles, § 484: ‘Defects in tax proceedings, or the omission altogether of proceedings that might originally have been dispensed with, may be cured by the Legislature; but if the defect or omission is jurisdictional (i. e., if it goes to the root of the authority to act; if it involves the omission of a step which the Legislature could not have dispensed with), then it is beyond the reach of curative statutes.’ Under our own decisions, no title or estate vested in the purchaser at the táx sale in question, because of the failure to give the necessary notice. The effect of the act of the Legislature, if sustained, will be to in fuse life and validity into that which without its aid is wholly void. This the Legislature has not the constitutional power to do. Alden v. City of Newark, 36 N. J. Law 288; Dever v. Cornwell (N. D.) 86 N. W. 227; Forster v. Forster, 129 Mass. 559; Lowry v. Mayo, 41 Minn. 388, 43 N. W. 78. Curative statutes intended to heal and correct defects and omissions with respect to contracts between individuals, and to effectuate the intention of the parties, are sustained upon entirely different principles. Wistar v. Foster, 46 Minn. 484, 49 N. W. 247, 24 Am. St. Rep. 241. That the failure to give the required notice of sale in this case was a jurisdictional defect in the tax proceeding, and one affecting the substantial rights of a taxpayer, is, in our judgment, in view of the prior decisions of this court and the authorities generally, not open to serious debate. And it being conceded that the statutes were not complied with, the sale by the auditor under which defendant claims title was wholly invalid.”

It is argued that since the Legislature could have provided for a sale of the property for delinquent taxes without any notice, without violating due process, it necessarily follows that it was empowered to enact curative legislation which would have the effect of curing defects arising in the giving of notice. This argument is inappropriate in this jurisdiction where we are committed to the proposition that a tax deed is purely a creature of statute. See Henderson v. Langley, 173 Okla. 530, 49 P. 2d 167, in which case we approved the holding of the Kansas court in Reitz v. Cooper, 256 P. 813, 817, wherein it was said:

“The rights of a purchaser of a tax deed are statutory, not equitable. Taylor v. Adams, 89 Kan. 716, 132 P. 1002; Sedgwick County Com’rs v. Conners, 121 Kan. 105, 245 P. 1030. Ordinarily, a purchaser of a tax deed is not a purchaser in good faith, as that term is used in the purchase of real estate. Sullivan v. Davis, 29 Kan. 28. The rule of caveat emptor applies to him. Montgomery County v. Wilmot, 114 Kan. 819, 823, 221 P. 276. He is bound to know what the tax records show. . . .”

Our Legislature has provided a comprehensive procedure for the divestiture of title from a property owner who fails to pay his taxes. Obviously, it is necessary to show something more than a mere failure to pay the taxes in order to divest title. Our policy in this respect was stated in the case of Price v. Mahoney, 175 Okla. 355, 53 P. 2d 257, as follows:

“The taking of taxes by the state is an involuntary exaction from the taxpayer. The tax-gathering authorities must proceed strictly within and according to the laws authorizing them to make this exaction, and the courts will not indulge loose constructions or presumptions in aid of the tax-gathering authorities or their grantees of property sold for taxes.”

Plaintiffs contend, however, that defendants are barred from setting up their title by virtue of the provisions of section 1, ch. 159, Session Laws 1933. Defendants point out, however, that the above statute was repealed by article 16, ch. 66, Session Laws 1935, and argue that plaintiffs are thereby precluded from relying upon its provisions. Conceding that said statute might be applicable, regardless of its repeal, it is not applicable herein for the reason that the proceedings relied upon as the foundation for said sale are void, and being a “short statute of limitations” as distinguished from a general statute of limitations, we have many times held that such a statute does not apply as to “jurisdictional matters or fatal defects in proceedings relating to a tax sale,” but apply only to irregularities. Lind v. Stubblefield, 138 Okla. 280, 282 P. 365; Baker v. Rogers, 148 Okla. 279, 1 P. 2d 366; Swann v. Kuehner, 157 Okla. 37, 10 P. 2d 707; Whitcomb v. Vaughn, 149 Okla. 81, 299 P. 216; Farmers Nat. Bank of Oklahoma City v. Gillis, 155 Okla. 290, 9 P. 2d 47; Cunningham v. Webber, 171 Okla. 212, 42 P. 2d 244; Ashur v. McCreery, 150 Okla. 111, 300 P. 767; Savery v. Topping, 158 Okla. 210, 13 P. 2d 144; Carl v. Stith, 153 Okla. 16, 4 P. 2d 738; Henderson v. Langley, 173 Okla. 550, 49 P. 2d 167; McAfee v. Harden, 180 Okla. 546, 71 P. 2d 463; Mahoney v. Barton, 168 Okla. 586, 35 P. 2d 443.

Having concluded that the tax deed involved herein is wholly void, it is unnecessary to consider other propositions presented by the defendants. We have considered the contentions of plaintiffs predicated upon estoppel and ratification and find them to be without merit.

The judgment is affirmed.

RILEY and GIBSON, JJ., and ROBERTS, Special Justice, concur. BAY-LESS, J., concurs in result. ARNOLD, J., concurs specially. WELCH, C. J., CORN, V. C. J., and HURST, J., dissent. Justice DAVISON having certified his disqualification to participate in this cause, Honorable R. J. ROBERTS, of Wewoka, was appointed to sit in his stead.