126 P.2d 1002 | Okla. | 1942
This is an action in ejectment by the plaintiff, Mary Fluman, for possession of a lot in the city of Enid, and to quiet title thereto. The lot was sold at the 1939 tax resale to Garfield county for $290.55, the total amount due thereon. On August 17, 1939, it was sold at a county commissioners' sale to the plaintiff for $127. The sale was approved by the county commissioners on August 28, 1939, and the deed from the chairman of the board of county commissioners to the plaintiff was acknowledged, and presumably executed and delivered, on September 1, 1939. This action was commenced January 9, 1940. The defendants, H.A. Koehn and Mary Koehn, the owners, answered by a general denial and filed a cross-petition in which they alleged that on August 23, 1939, they tendered to the treasurer of Garfield county the amount for which the lot was sold at the county commissioners' sale with enough additional to pay the costs, interest and penalty, and demanded a redemption certificate as provided by section 14, ch. 66, art. 31, S. L. 1939, and that from time to time thereafter and up to December 1, 1939, the tender was renewed, but that the county treasurer refused to accept the tender or issue a redemption certificate, and they asked that the resale deed and county commissioners' deed be canceled and that their title be quieted as against the claims of plaintiff. They deposited $135 with the court clerk to make good their tender.
The evidence discloses that L.F. Messman, who held a mortgage on said lot from the defendants, acting for himself and as their agent, called at the office of the county treasurer a few days after the county commissioners' sale to redeem the land and offered to pay the *73 county treasurer $130, a sum sufficient to take care of the amount for which the lot was sold at the county commissioners' sale, together with interest and costs, but that the county treasurer refused to accept said sum for the reason that property could not be redeemed from a county commissioners' sale, following the advice of the Attorney General.
The court entered judgment for the plaintiff, reciting in the journal entry of judgment that it was incumbent upon the defendants to file a mandamus proceeding before December 1, 1939, to compel the county treasurer to accept the redemption money and issue a redemption certificate. Defendants appeal.
The defendants argue three propositions, but we find it necessary to consider only two of them: (1) That their tender was valid and sufficient to entitle them to redeem, and (2) that the court erred in holding that mandamus to compel redemption was their exclusive remedy and that they could not enforce the right of redemption by cross-petition in the present action.
1. Section 14 of the 1939 resale act (68 O. S. 1941 § 432 m) authorized redemption from the 1939 resale by payment of "the full amount paid by the purchaser at the commissioners' sale, plus costs, expenses and penalty as therein provided, rather than the amount for which the property was sold to the county at the resale." Roberts v. Newell,
2. It is true, as argued by the plaintiff, that mandamus is a proper remedy to compel the county treasurer to perform his plain legal duty in connection with redemption from tax sales. Miller v. State,
Such right of redemption, however, is subject to the right of Garfield county to collect the balance due on the taxes for which the lot was sold at the 1939 tax resale. Thompson v. Smith,
Reversed, with directions to render judgment for the defendants canceling the resale tax deed and county commissioners' deed and to proceed in accordance with the views herein expressed.
CORN, V. C. J., and RILEY, BAYLESS, and DAVISON, JJ., concur. WELCH, C. J., and OSBORN, and GIBSON, JJ., dissent. ARNOLD, J. absent.