249 P. 910 | Okla. | 1926
Parties appear in the same order as in the trial court. Plaintiff, Bowen, sued defendants to quiet title to a certain parcel of real estate, basing action upon a purported tax deed. The taxes for 1915, became delinquent and a certificate was issued in 1916 to one Welcome, who assigned same to one Keyser. In 1922 Keyser applied for and procured a tax deed, and thereafter conveyed the real estate to the plaintiff, Bowen, Geo. W. James, a Choctaw Indian, was the allottee of the realty prior to October 10, 1908. On said date certain persons representing that said allottee was dead, and that they were his sole and only heirs, conveyed the real estate in controversy to one Copeland, who thereafter mortgaged same to plaintiff, Bowen, who thereafter purchased the land at sheriff's sale on foreclosure of his mortgage. These transactions occurred prior to 1915 when said taxes became delinquent. Said allottee had not departed this life, and on November 18, 1910, conveyed the parcel of land to defendant Thompson and one McConahey; the latter having died, defendant Alice McConahey succeeded in interest, as his sole devisee. The court found that said tax deed relied upon by plaintiff was invalid, and rendered judgment for defendants, from which plaintiff appeals.
1. The first error assigned is the holding such deed invalid. The statutes then provided that the holder of a certificate of purchase issued at tax sale, in order to be entitled to a tax deed, should cause a written notice signed by himself to be served upon the owner of the land and also upon the person in possession, if the same be occupied, reciting certain required matters. This notice was served upon Bowen, but not served upon Thompson and McConahey, or any one in possession. Manifestly, the sheriff's deed on foreclosure, by which Bowen claimed title, was absolutely void, for that Copeland, the mortgagor, had no title whatever from said pretended heirs of the allottee. It is not contended that the deed dated November 18, 1910, from the allottee to defendants was invalid. It is alleged that the same was duly recorded, and stated in the brief, and not denied by plaintiff, that same was recorded prior to the time notice was given for obtaining the tax deed. It is well settled that the notice upon the owner required by said statute is jurisdictional, and the failure to give the same renders the tax deed absolutely void. Dawson v. Anderson,
2. It is next contended that the judgment was erroneous for that the deed from the allottee to the defendants was void under the champerty statute. In Miller v. Fryer,
3. The third and last assignment is that the judgment is erroneous because Bowen and his grantors had been in possession of the land since 1908, in such manner as to acquire title by prescription under the 15 *7 years' statute of limitations. The evidence on behalf of Bowen is a conclusion of one witness that he had been in possession for said time. However, one Brummett testified on behalf of defendants, and his testimony is uncontradicted, that he had resided in the vicinity of this parcel of land for 40 years; that the same had at all times been a part of a large pasture used by him; that he did not know who claimed this parcel of land from about 1908 to about 1917, at which time he rented it through an agent from some one in New York, whose name he did not remember, he having used the same and not having claimed to own it. The judgment in this behalf is not clearly against the weight of the evidence.
Let the judgment be affirmed.
By the Court: It is so ordered.