G. A. NICHOLS Inc. v. SIMPSON

G. A. NICHOLS Inc. v. SIMPSON
1944 OK 159
147 P.2d 437
194 Okla. 81
Case Number: 31262, 31263
Decided: 04/04/1944
Supreme Court of Oklahoma

G. A. NICHOLS, Inc.
v.
SIMPSON
G. A. NICHOLS, Inc., et al.
v.
BONNEY

Syllabus

¶0 1. TAXATION--Form of resale tax deed prescribed by act of 1939 applicable to all resale tax deeds.
68 0. S. 1941 § 432g, which prescribes a form of resale tax deed, was intended to apply to all resale tax deeds, whether the grantee is the county or an individual and whether it covers vacant lots in a city or town, or additions thereto, or other property.
2. SAME - Resale tax deed complying with statutory form not void on its face.
A resale tax deed which complies with the form prescribed by 68 0. S. 1941 432g is not void on its face.
3. SAME--Resale tax deed not void for failure to contain certain recitals.
The form of resale tax deed prescribed by 68 0. S. 1941 § 432g does not contain a recital that the property conveyed was sold for the full amount of the taxes, penalties, interest and costs, or two-thirds of the assessed value, or that the same consisted of vacant lots in a city or town, or an addition to a city or town, and a resale tax deed based upon a sale under the 1939 resale act is not void because it contains no such recital.
4. SAME--Description of real property on assessment roll or in delinquent tax sale notice sufficient if it does not mislead and is capable of being made certain.
A description of real properly on an assessment roll or in a delinquent tax sale notice is sufficient if it does not mislead, and if it identifies or designates with reasonable certainty the property intended to be assessed or sold, and, although not certain, is capable of being made certain; and under such circumstances parol evidence is admissible to explain the description or apply it to the intended object.
5. SAME--Assessment not void where property situated in town of Nichols Hills is described as being in "Nichols Hills Addition."
An assessment which contains the lot and describes the property as being in "Nichols Hills Addition," when in fact the property is situated in the town of "Nichols Hills," is not avoid assessment, when there is no Nichols Hills Addition to any city or town in the county, and the description can apply only to the particular lot in the town of Nichols Hills.
6. SAME--Notice of delinquent tax sale not void because of defective description.
Where the notice of delinquent tax sale gives the lot and block number and describes the property as being in "Nichols Hills Add" to Oklahoma City, and the property is in fact situated in the town of Nichols Hills, and there is no "Nichols Hills" addition to Oklahoma City, and the description can apply only to the particular lot in the town of Nichols Hills, such description is not so defective as to render the notice as to the particular lot void under 68 0. S. 1941 § 382, requiring the notice to "contain a list of the lands to be sold."
7. SAME--Defective descriptions constituting mere irregularities and not invalidating resale tax deed.
The descriptions in the assessment and delinquent tax sale notices referred to in the two preceding paragraphs of this syllabus constitute mere irregularities which, because of the provisions of 68 0. S. 1941 § 432h, will not render a resale tax deed invalid.

Appeal from District Court, Oklahoma County; Sam Hooker, Judge.

Quiet title actions by 0. L. Simpson and by W. C. Bonney against G. A. Nichols, Inc., et al. Judgment for plaintiffs, and defendants appeal. Affirmed.

Twyford & Smith and William J. Crowe, all of Oklahoma City, for plaintiff in error.
Arnold T. Fleig, of Oklahoma City, for defendants in error.

HURST, J

¶1 These appeals involve title to lots in the town of Nichols Hills. The actions, which involve the same legal questions, were tried as companion cases in the lower court, and they have been briefed together. They involve the validity of resale tax deeds in favor of the plaintiffs based upon the 1941 tax resale. No. 31262 was commenced by 0. L. Simpson to quiet title to one lot, while No. 31263 was commenced by W. C. Bonney to quiet title to some 40 lots in 11 different blocks. The defendant, G. A. Nichols, Inc., a corporation, the former owner of the lots, appeals from the judgments in favor of the plaintiffs. Morgan Cox, one of the defendants in cause No. 31263, owner of delinquent sewer warrants against some of the lots, also appeals.

¶2 1. The tax deeds involved in these cases are on the form prescribed by section 8 of the 1939 resale act, 68 0, S. 1941 ~ 432g. The defendants contend that the deeds are void on their face because they do not recite that the lots covered by the deeds are vacant lots , . in a city or town, or an addition thereto, or that they sold for as much as the minimum price for which all other property may be sold as provided in 68 O.S. 1941 § 432d. The form prescribed contains no such recital. Defendants rely upon Thompson v. Yates, 184 Okla. 86, 85 P.2d 415; Mahoney v. Estep, 171 Okla. 101, 38 P.2d 537; McGrath v. Majors, 179 Okla. 500, 66 P.2d 915, and Deneen v. Gillispie, 180 Okla. 342, 70 P.2d 1078. These cases are not in point. The Thompson Case involved a certificate tax deed, where the land was sold to the county at the delinquent tax sale for want of bidders, and it was held that the form prescribed by statute was intended for voluntary purchasers and not for a sale to the county by operation of law, and that the deed must recite the facts showing that the county was not a competitive bidder and the right of the county to purchase. The other cases involved resale tax deeds that should have been on the form prescribed by the State Examiner and Inspector, and they did not conform thereto by reciting that the lots sold for the total amount of taxes, etc., due or that they were vacant lots.

¶3 In order to avoid the difficulties encountered inder the prior laws, the 1939 Legislature for the first time prescribed a form of resale tax deed. 68 O.S. 1941 § 432g. The form thus prescribed was intended to cover all resale tax deeds, whether to the county or to an individual purchaser, and whether vacant lots in a city or town, or addition thereto, or other property. The Legislature has the right to prescribe a tax deed form, and when a deed, issued pursuant to a tax resale held under the 1939 resale act, conforms to the statutory form, it will not be held void on its face. Three-in-One Oil & Gas Co. v. Bradshaw, 192 Okla. 309, 135 P.2d 992. The defendants do not contend that any of the lots involved are improved so that they had to sell for the minimum price referred to in 68 O.S. 1941 §432d.

¶4 2. The defendants contend that the 1941 resale, under which plaintiffs claim title, is void because the 1936 delinquent tax sale, on which the resale was based, is void, and that the delinquent tax sale is void for two reasons, (1) because the assessments on which the sale was based are void, and (2) because the property was not described in the notices of delinquent tax sale. It is not contended that the 1941 resale notice is defective.

¶5 The townsite of Nichols Hills was duly platted in 1929. It lies just north of Oklahoma City, in Oklahoma county. Several additions to the original townsite have been subsequently platted. It is now an incorporated town and is known as "Nichols Hills." Most of the additions thereto are a part of the incorporated town. There is but one Nichols Hills. town or townsite platted in Oklahoma county. There is no addition to Oklahoma City or to any other city or town in Oklahoma county known as "Nichols Hills." There are no duplications of blocks in Nichols Hills and the additions thereto.

¶6 The evidence is that the lots involved in these cases along with many others in Nichols Hills were assessed and extended on the tax rolls for 1931 and for the subsequent years in the name of G. A. Nichols, Inc., as owner. From 1931 to 1936 the property in Nichols Hills was listed on the assessment rolls and the tax rolls as "Nichols Hills Add" or as "Nichols Hills Addition," without specifying to what city or town it was an addition. In 1936, and the subsequent years, it was listed simply as "Nichols Hills." In 1935, 1937, and 1939, G. A. Nichols, Inc., voluntarily listed the property involved in this case for taxation as being in Nichols Hills addition.

¶7 The caption to the 1936 delinquent tax sale notice as published contains this paragraph: "Except as otherwise indicated the following described real estate is situated in Oklahoma City, Oklahoma." Then preceding the description of the lots in Nichols Hills was the words "Nichols Hills Add.," without stating whether Nichols Hills was a separate town or an addition to some city or town.

¶8 The defendants argue, from the foregoing facts, that "a sale of property in one municipality based upon an original sale of property described as being located in another municipality must necessarily be void," and cite in support of such argument Gilbert v. Conservative Loan Co., 138 Okla. 1, 280 P. 278, 67 A. L. R. 885, and Moore v. Barker, 186 Okla. 312, 97 P.2d 776. These cases do not help defendants. In the first case the land involved was located in section 5, township 8, range 3. It was described in the tax sale notice as being in section 5, range 8, township 3, thus transposing the township and range numbers and clearly describing a different tract of land. In Moore v. Barker, above, some of the lots sold at resale were entirely left out of the delinquent tax sale notice.

¶9 We think this case is governed by our decisions in Medaris v. Tracey, 170 Okla. 113, 39 P.2d 30, Street v. Board of Com'rs of Cotton County, 180 Okla. 177, 68 P.2d 514, and Chamberlain v. Davis, 191 Okla. 457, 130 P.2d 848. The property involved in Medaris v. Tracey was described as being in "Pryor's Elm Grove Addition" in Oklahoma county without stating to what city or town it was an addition. The description was held sufficient to support the tax sale on the theory that "while this description is not certain, it is capable of being made certain." The property involved in the Street Case was located in block 82 of "Walters Addition" to the city of Walters. The notice of tax sale described it as being in block 82 of "Original Walters." There were but 48 blocks in the original townsite of Walters. The notice was held sufficient to support the tax sale. The tax sale notice in the Chamberlain Case did not recite that the land was in Dewey county. The notice was held sufficient on the theory that it was "such as to enable the owner and the prospective purchaser to locate, with substantial certainty, the land to be sold," and was not "so confusing as to be calculated to mislead a person of average intelligence." Our decisions on this question are in harmony with those of other courts. 137 A. L. R. 184, at 191, note.

¶10 Here, the description was capable of being made certain and was made certain by proof that there is no "Nichols Hills Addition" to Oklahoma City or any other city or town in Oklahoma county and that the lots involved in this case are the only lots in Oklahoma county that would fit the description as given on the assessment rolls, the tax rolls, and the delinquent tax sale notice. The description was not such as to be calculated to mislead a person of average intelligence. The defendant, G. A. Nichols, Inc., could not have been misled, since it listed the lots for taxation, and the evidence discloses that it had at various times paid taxes on certain lots in the various blocks in which the lots here involved were situated.

¶11 It follows that the assessments and notice of delinquent tax sale were not void as to the lots involved in these cases. The defects referred to amount only to irregularities, and, under the plain terms of 68 0. S. 1941 § 432h, we are without authority to invalidate the sale by reason of such irregularities.

¶12 Affirmed.

¶13 CORN, C.J., and RILEY, OSBORN and BAYLESS, JJ., concur. GIBSON, V.C.J., and WELCH, J., concur in conclusion. DAVISON, J., dissents.