192 P. 806 | Okla. | 1920
We will dispose of the points argued in inverse order.
1. The 80 acres were sold on November 4, 1912, for the 1911 taxes, plus "penalty, interest, and costs, due and unpaid thereon and delinquent on said real estate," as recited in the tax deed itself. The county treasurer bid the land in for $12.47, and certificate of purchase was issued bearing that date, which plaintiff subsequently acquired and on which he obtained his tax deed. The provision in the act of the Legislature approved March 22, 1911, (Sess. Laws of 1910-11, p. 263), declaring that it shall be the duty of the county treasurer on or before November 1st, to notify by mail, postage prepaid, each taxpayer whose name appears on his record of the amount of his taxes, and when the same will become due and delinquent, is mandatory, and the absence of such notice nullifies the sale of the taxpayer's land for taxes and penalty. The sale of a tract of land for a legal tax, plus an illegal penalty, is no foundation for a tax deed, and upon a showing of such fact a tax deed issued on such sale will be canceled and set aside. Williams v. McGill, 69 Oklahoma,
2. Plaintiff filed a reply to defendant's answer and cross-petition, setting up the statute of limitations of one year contained in section 7419, Rev. Laws 1910, and contends that, inasmuch as defendant did not file his answer and cross-petition until after the expiration of one year from the recording of the tax deed, the cause of action set up in his cross-petition is barred by said statute of limitations. Plaintiff contends that the cross-petition is, in effect, the commencement of a new suit, and not having been commenced within one year from the registration of the tax deed, it is barred although set up as a defense to plaintiff's action to establish title, under his tax deed commenced within about nine months after the tax deed was recorded. Defendant contends that his answer and cross-petition constitute a counterclaim and under section 4746, Rev. Laws 1910, is not barred by the statute of limitations until the plaintiff's claim is likewise barred. Under section 4927, Rev. Laws 1910, as amended by the act of the Legislature approved January 25, 1911 (Sess. Laws 1910-11, p. 25), the plaintiff commenced this action for the purpose of determining "the adverse estate or interest" defendant had in the land. Plaintiff alleges in his petition that he is the owner of the legal and equitable title, and bases his claim of title on the tax deed exhibited with his petition. Plaintiff, therefore, bases his right to a judgment on two things, to wit: (a) Possession, and (b) title under the tax deed. He, therefore, presented to the defendant the clear-cut issue as to whether or not he, plaintiff, obtained title under the tax deed. Unless plaintiff has title, he has no title to quiet. In an action to quiet title, the plaintiff must allege and prove that he is the owner of either the legal title or the complete equitable title. Whether the defendant has any title is immaterial to the plaintiff unless the plaintiff has title. Plaintiff must recover on the strength of his own title, and not on the want of title in the defendant. 17 Ency. Pl.
Pr., pp. 326 to 331; Mason et al. v. Gates,
"It is also true that where a party seeks relief upon the ground of fraud or mistake the action must be commenced within three years after the discovery of the facts constituting the fraud or mistake, but a different case is presented where the party who has procured the fraudulent contract, or who seeks to take advantage of it, asks to have it declared valid or to enforce its executory terms, and is thus himself asking affirmative relief. The three years' statute of limitations does not bar the defendant in such a case from objecting to the validity or the enforcement of the contract upon the ground of fraud. It is not incumbent upon one who has thus been defrauded to go into court and ask relief, but he may abide his time and when enforcement is sought against him excuse himself from performance by proof of the fraud. Of course, in such a case he incurs the risk of defeat by the intervention of the rights of innocent parties."
In State v. Tanner,
In Butler v. Carpenter, 163 Mo. 597, 63 S.W. 823, the plaintiffs commenced an ejectment action, in answer to which defendant alleged that 20 years prior thereto the land was purchased by plaintiff's ancestor under an agreement by which defendant paid half the consideration, said ancestor taking the title in trust for defendant, to the extent of an undivided one-half interest. Plaintiffs filed a demurrer to the answer on the ground that the defendant's alleged equitable title was outlawed and barred by the statute of limitations. The defendant not only pleaded his equitable title as a defense, but closed his answer with a prayer for a decree divesting plaintiffs of one-half of the legal title and awarding same to defendant. The court said:
"The third ground of demurrer — 'That defendant's alleged equitable title is stale, and barred by the statute of limitations' — may also be disposed of by the simple suggestion that the sole purpose of the statute of limitations, by its very language, is to bar actions, and not to suppress or deny matters of defense, whether equitable or legal; and that, too, when, as in this case, the equitable defense is accompanied by a prayer for affirmative relief. The purpose of the statute is to quiet the assertion of old, stale, and antiquated demands, but it has never been thought that its intended object was to go further, and to deny a just and meritorious defense, whether the facts of that defense had their birth in the first, tenth, or twentieth year before the call for the assertion of those facts was made necessary by some hostile claim, demand or proceeding. A ground of defense never becomes stale or barred by the statute of limitations, but grows in strength and force as the limitation period against a right of action widens. The statute of limitations may be used by a deendant as a shield for his protection or defense, but is never to be turned upon him as a sword with which to compass his defeat."
The judgment of the trial court in sustaining the demurrer to the defendant's answer was reversed by the Supreme Court, and the case remanded for a trial on the facts.
A careful consideration of section 7419, Rev. Laws 1910, convinces us that the legislature did not intend to cut off defenses not made within a year after the recording of the tax deed. Considering section 7419 in the light of the authorities cited and rules therein announced, it clearly appears that all the legislature intended was to bar litigation over tax titles unless an action to recover the land or avoid the tax deed is commenced by one or the other of the parties, that is, the holder of the tax deed or the owner of the land, within one year from the recording of the tax deed.
If the defenses to an action to quiet title commenced by the holder of the tax deed are not barred by the statute of limitations, it seems clear that a mere judgment dismissing plaintiff's suit and not awarding defendant possession, thus leaving plaintiff in possession, renders nugatory the very defenses the law *184 holds to be good. Thus we would have the law saying to a defendant, "Your defenses are good, they are not barred by the statute of limitations, and from your defenses it appears plaintiff has no valid title, and while I find you have the title and plaintiff has no title, I can do nothing except leave the plaintiff in possession." This would be to keep the word of promise to the ear, while breaking it to the hope.
It was not necessary for the defendant to ask for cross-relief in order to defeat the plaintiff, See 17 Ency. Pl. Pr. 354. In actions to quiet title or of ejectment the title can be determined upon the petition and answer without a cross-petition, unless the defendant seeks to enforce some equitable right. 6 Standard Proc. 300; Bacon v. Rice, 14 Idaho, 107, 93 P. 511; Johnson v. Taylor,
3. But the defendant's answer and cross-petition is a counterclaim within the meaning of section 4746, Rev. Laws 1910, providing that a "counterclaim shall not be barred by the statute of limitations until the claim of the plaintiff is so barred." While the Code of Civil Procedure was intended to simplify pleading and practice, it fell far short of making itself entirely clear as to what it means to include in the term "counterclaim." We will not review the authorities defining counterclaim as used in the Code of Civil Procedure, because, like the charms of Cleopatra, "Age cannot wither nor custom stale her (their) infinite variety." If the affirmative relief asked by defendant be against the plaintiff and arises (1) out of the contract, or (2) the transaction set forth in plaintiff's petition as the foundation of his claim, or (3) connected with the subject of the action, it is a counterclaim and not barred by the statute of limitations unless the plaintiff's claim is also barred. The third subdivision of section 4745, Rev. Laws 1910, authorizes the defendant to set forth in his answer as many grounds of defense, counterclaim, set-off, and for relief, as he may have, irrespective of whether they be denominated legal or equitable, or both. We think the new matter by way of defense and cross-petition set up by defendant in this case is clearly "connected with the subject of the action," and therefore falls within the meaning of counterclaim as used in section 4746, Rev. Laws 1910. We agree with Pomeroy that the "subject of the action" denotes the plaintiff's principal, primary right to enforce or maintain his action or controversy. The primary right here is the title, if any, acquired by plaintiff under the tax deed, and he puts that forth in his petition as his primary right to have and to hold the possession and title to the land. If we treat the land as the "subject of the action" the defendant's defense, his claim of title, is certainly as closely "connected with the subject of the action," that is, the land, as plaintiff's tax deed is "connected with the subject of the action," that is, the land. The whole litigation revolves around the validity of plaintiff's tax title, and not around defendant's title. See Pomeroy's Code Remedies (4th Ed.) secs. 651 and 647.
In Gillenwater v. Campbell,
"Tested as a cross-demand for possession and damages, it must be determined whether the relief demanded 'is any matter arising out of on connected with the cause of action,' as required by the Code (Rev. St. 1894, sec. 353; Rev. St. 1881, sec. 350), for, as said in Standley v. Insurance Co.,
In Eagan v. Mahoney (Colo.) 134 P. 156, the court held that a cross-complaint by one defendant against another, asking for the removal of a cloud on the title to the land, is a counterclaim under the Code of Civil Procedure. The court said:
"Counsel's claim that the defendant Mahoney's cross-bill or cross-complaint cannot be sustained as a cause of action against the defendant Eagan, for the purpose of quieting title as against him, because the same is not defensive, and therefore not a counterclaim such as the Code provides, cannot be upheld. The counterclaim or cross-complaint mentioned in sections 56 and 57, Mills' Ann. Code, is equivalent to a cross-bill in equity practice. Allen v. Tritch,
See, also, Taylor v. Wilson (Ky.) 206 S.W. 865; Woodruf v. Garner,
Cross-petitions are analogous to and based on the old equitable principles governing ordinary cross-bills. 6 Standard Proc. 2996. The cross-bill under the old equity practice was a mode of defense ancillary to the original suit, and the original bill and cross-petition constitute but one cause. 6 Standard Proc. 261. The Code of Civil Procedure in this state makes no reference to cross-petitions, but they are authorized by sections 4745 and 4746, Rev. Laws 1910. It does not matter whether it is called cross-petition, cross-complaint, or counterclaim (Taylor v. Wilson [Ky.] 206 S.W. 865); if it is a counterclaim within the meaning of section 4746, Rev. Laws 1910, the running of the statute of limitations is arrested by the commencement of the plaintiff's action. Cooper v. Gibson. 69 Oklahoma,
The judgment of the trial court is affirmed.
RAINEY, C. J., HARRISON, V. C. J., and KANE, PITCHFORD, and JOHNSON, JJ., concur.