166 P.2d 1009 | Okla. | 1945
Lead Opinion
C. Ray Lawyer sued Crowe Coal Company, J.E. Chancey, John T. Cole, and several others to recover possession of a 40-acre tract of land in Okmulgee county and to quiet title thereto.
Lawyer claims title under a resale tax deed executed on April 28, 1930, and recorded on February 4, 1931. This suit was commenced on January 1, 1938. Cole filed a demurrer to the petition as amended on the ground that the same does not state a cause of action and on the ground that the action is barred by the statute of limitations. He did not tender the taxes in said demurrer, and the plaintiff filed a motion to strike the demurrer for failure to comply with the tender statutes. This motion was denied. Thereafter, Chancey filed a demurrer for the same reasons stated in the demurrer filed by Cole. The plaintiff did not move to strike the demurrer filed by Chancey. The demurrers were sustained and the cause was dismissed. None of the other defendants appeared. Thereafter, the plaintiff filed an application to reopen the cause and to be permitted to file a supplemental pleading showing the payment of the taxes subsequent to the issuance of the tax deed and the redemption from a resale under the 1939 tax resale law. This application was denied. Plaintiff appeals.
Plaintiff argues three propositions, (1) error in failing to require compliance with the tender statute, (2) error in sustaining the demurrers, and (3) error in refusing to permit plaintiff to reopen the case and file a supplemental pleading. Under the view we take of the case, it is necessary that we discuss only the first two propositions.
1. The first question is whether the former owner of land sold for taxes can be heard to question the sufficiency of a petition by the tax title holder to recover possession, by a demurrer to the petition, without complying with the tender statute, 68 O.S. 1941 § 453[68-453]. That statute provides that "the person desiring . . . to resist the recovery of possession by the holder of the deed . . . must, when . . . a defense to a recovery of possession is plead, tender in open court for the use of the holder of the tax deed, all taxes, penalties, interests and costs, which the party seeking to redeem would be bound to pay if he was then redeeming the land from tax sale, and on failure so to do, his . . . defense . . . shall be dismissed." Does the demurrer to the petition constitute a "defense" to the action within the meaning of said statute? We think so.
A demurrer to a petition raises issues of law as to the legal sufficiency of the petition to entitle the plaintiff to any relief. 21 R.C.L. 504; 41 Am. Jur. 438; 49 C.J. 366. It is designated as a pleading by our statutes (12 O.S. 1941 §§ 261[
We have held that a party may waive the tax tender statute by going to trial without raising the question. Courtney v. Worley,
It is clear that, under said statute (68 O.S. 1941 § 453[68-453]), a defendant as former owner is not entitled to present a defense to recovery of possession by the tax title holder without complying with the tender feature of said statute. Schulte v. Herndon,
2. We are of the opinion, and hold, that the plaintiff's action is barred by the two-year statute of limitations found in the Code of Civil Procedure, 12 O.S. 1941 § 93[
The plaintiff relies upon Swan v. Kuehner,
The cause is remanded with directions to give the defendants a reasonable time after the mandate is spread of record within which to comply with the tax tender statute, 68 O.S. 1941 § 453[68-453], and, if they do so comply, the trial court is directed to enter judgment sustaining the demurrers to the petition, otherwise the judgment is reversed with directions to strike the demurrers and to proceed not inconsistently with the views herein expressed.
RILEY, BAYLESS, WELCH, CORN, DAVISON, and ARNOLD, JJ., concur. GIBSON, C. J., and OSBORN, J., dissent.
Dissenting Opinion
The plaintiff, C. Ray Lawyer, brought this action against Crowe Coal Company, J.F. Chancey, and others to recover possession of a 40-acre tract of land in Okmulgee county and to quiet title thereto.
Lawyer claimed title to the land under a resale tax deed issued by Okmulgee county, executed on April 28, 1930, and recorded on February 4, 1931. This action was commenced on January 1, 1938. The demurrer of defendant Chancey to the plaintiff's petition was sustained on the sole ground that the petition showed on its face that plaintiff's cause of action was barred by the statute of limitations. Plaintiff appeals.
The petition showed on its face that plaintiff's cause of action was barred *468
by the applicable statute of limitations. 12 O. S. 1941 § 93, subd. 3. Lane v. Bass,
The tender statute, 68 O. S. 1941 § 453, reads as follows:
"To defeat the deed, the person desiring to set the same aside and recover the land, or to resist the recovery of possession by the holder of the deed in addition to showingclearly the entire failure to do some one or all the things ofwhich the tax deed is made presumptive evidence, must show that he or the person under whom he claims, had the right to redeem the land from tax sale at the time the deed was made, and must, when his action to set aside the tax deed is brought, or a defense to a recovery of possession is plead, tender in open court for the use of the holder of the tax deed, all taxes, penalties, interests and costs, which the party seeking to redeem would be bound to pay if he was then redeeming the land from tax sale, and on failure so to do, his action or defense, as the case may be, shall be dismissed. The rule that tax proceedings are to be strictly construed as against the tax purchaser, shall not apply to proceedings under this Act, but in all courts its provisions shall be liberally construed, to the end that its provisions and all proceedings thereunder shall be sustained."
Plaintiff insists that that portion of said section providing that where a defense to a recovery of possession is pleaded, tender in open court must be made, precludes the assertion of any defense, of whatsoever nature, made in an action for the recovery of possession of real estate brought by the holder Df a tax deed, unless the tender statute is complied with. In support of this contention, he cites and relies upon Thompson v. Yates,
In Parks v. Lyons,
It is clear that a demurrer to plaintiff's petition upon the ground that on its face the action was barred by the statute of limitations is not an attack upon the validity of the tax deed. In fact, it assumes the validity of such tax deed but points out that plaintiff, by failing to assert his rights thereunder within the time required by law, is now precluded from asserting them. The purpose of the tax tender statute was to reimburse the holder of a tax deed for the expenditure made by him in procuring the tax title when, because of defects in the tax deed or the tax sale proceeding culminating in such deed, he did not obtain title to the property so purchased by him, and to require the owner of the land, as a prerequisite to having the deed adjudged invalid because of such defects, to pay the taxes which were his obligation to the county in order to retain his present title to the land.
In the instant case such situation is not involved. Here the tax purchaser obtained a title to the land which, if he had timely asserted same, would have resulted in the title of the landowner being extinguished. 68 O. S. 1941 § 432f; Huddleston v. Vahlberg,
In Atkins v. Disintegrating Co., 18 Wall. 272, 301, the court said:
"The intention of the law-maker constitutes the law. A thing may be within the letter of a statute and not within its meaning, or within its meaning, though not within its letter."
In Lau Ow Bew v. United States,
"Nothing is better settled than that statutes should receive a sensible construction, such as will effectuate the legislative intention, and, if possible, avoid an unjust or absurd conclusion."
In Rhodes v. Iowa,
"But the subtle signification of words and the niceties of verbal distinction furnish no safeguard for construing the Act of Congress. On the contrary, it should be interpreted and enforced by the light of the fundamental rule of carrying out its purpose and object, of affording the remedy which it was intended to create, and of defeating the wrong which it was its purpose to frustrate."
In Oklahoma Natural Gas Co. v. State ex rel. Vassar,
Plaintiff, by reason of his own inaction and unexcused delay, lost his right to assert his ownership of title and right of possession to the premises, and defendant was not required to show any defect in the tax deed, for the court was wholly barred by law from granting plaintiff any relief. The tender statute applies only when, in order to defeat plaintiff's recovery, the defendant must attack the deed of plaintiff as void or voidable, as in Thompson v. Yates, supra. The vital spark of plaintiff's rights had become extinguished, leaving only the dead ashes into which no court could generate a living fire. Under section 6 of article 2 of the Constitution, providing that "The courts of justice shall be open to every person *470 and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation . . .", it was the duty of the court to enter judgment effectually barring the claims of plaintiff to the lands of defendant.
I therefore dissent.
Mr. Chief Justice GIBSON concurs herein.