HATCHETT v. BASIL et al.

HATCHETT v. BASIL et al.
1933 OK 511
25 P.2d 628
165 Okla. 159
Case Number: 21158
Decided: 10/03/1933
Supreme Court of Oklahoma

HATCHETT
v.
BASIL

Syllabus

¶0 Taxation--Binding Effect of Final Judgment Canceling Tax Deed Executed to Chairman of Board of County Commissioners.
The final judgment of a district court canceling a tax deed or deeds executed by the county treasurer to the chairman of the board of county commissioners is binding upon officers against whom the suit was instituted, as well as a party who is attempting to secure a tax deed from the chairman of the board of county commissioners as provided for in sec. 9745, C. O. S. 1921, as amended by ch. 158, Session Laws of 1923, where said party has no vested right in said property.

Appeal from District Court, Payne County; Charles C. Smith, Judge.

Action by A. P. Hatchett against M. E. Basil et al. Judgment for defendants, and plaintiff appeals. Affirmed.

Walter Mathews, for plaintiff in error.
Thos. A. Higgins, Ernest F. Jenkins, Co. Atty., and Henry W. Hoel, Asst. Co. Atty., for defendants in error.

BAYLESS, J.

¶1 This cause of action arose in the district court of Payne county, Okla., involving the title to certain lots in the town of Cushing, Okla. There are so many parties interested that it will be necessary to refer to them by name.

¶2 On May 16, 1927, M. E. Basil, county treasurer of Payne county, Okla., in pursuance of a resale had in said county on April 18, 1927, executed and delivered two certain resale tax deeds to Ed T. Thatcher, chairman of the board of county commissioners of Payne county, Okla., and his successors in office, for the use and benefit of said county, covering lots 5 and 6 in block 2, Washington Heights addition to Cushing, Payne county, Okla., which lots had been bought in the name of the county at said resale.

¶3 On October 22, 1927, A. P. Hatchett, the plaintiff herein, made a written bid or offer to purchase these lots from the county, and with said written bid or offer paid to the county treasurer of Payne county, Okla., the amount of his bid plus the fees necessary to the publication of the notice of the sale. On the same day the county treasurer of Payne county reported the bid to the board of county commissioners and recommended that it be accepted, and caused a notice to be published that on a date certain the property would be sold to Hatchett, in the absence of any other bids. This notice was defective in that the designation of the block in which these lots were located was omitted.

¶4 On November 7, 1927, the board of county commissioners of said county, acting upon the bid, the recommendation of the county treasurer, and the notice published, approved the bid and confirmed the sale of the lots to Hatchett, but deeds were not executed or delivered to him.

¶5 J. B. Hughes, who held a mortgage for $ 600 upon this property, seems to have learned of the threatened sale and to have procured a deed from the mortgagors, and on November 23, 1927, filed a written protest against the sale of this property with the board of county commissioners, and tendered to the county treasurer and offered to pay all taxes due upon the property. The board of county commissioners, acting upon this protest on December 5, 1927, reconsidered their action of November 7th and withdrew the prior confirmation of the sale.

¶6 The plaintiff then learned of the defective notice theretofore published, and on December 7, 1927, acting through the county treasurer, caused a second notice to be published complying in all respects with the requirements of the statute. However, it affirmatively appears that the board of county commissioners thereafter refused to take any action upon this matter whatsoever. It also appears that the county treasurer was holding Hatchett's money in pursuance of the bid, and was refusing to accept the tender of the taxes made by Hughes. On December 14, 1927, J. B. Hughes instituted cause No. 9046 in the district court of Payne county, Okla., naming Ed T. Thatcher, chairman of the board of county commissioners of said county, and the board of county commissioners, defendants. In this petition he alleged that the sale of the property for taxes was illegal and void, that the resale of the property to the county was illegal and void, set up his interest in the real estate, and asked to have the resale deeds canceled and permission to redeem the property from the delinquent taxes. This matter pended for some time, and on May 19, 1928, upon consent of the county attorney of said county and by stipulation, the court entered a decree holding the sale from the county treasurer to the county commissioners to be void, canceled said deeds and decreed the plaintiff the right to redeem said property and ordered the appropriate authorities to accept the delinquent taxes in redemption of the land from the tax lien. Hughes thereupon paid the money to the county treasurer of Payne county and the county treasurer was then in a position of holding the money belonging to both Hatchett and Hughes.

¶7 It will be observed from the record that the county commissioners, although they made an order approving the recommendation of the county treasurer, never at any time executed a deed to the plaintiff. On the contrary, at a later date, upon the application of the defendant, they attempted to rescind their prior order of confirmation. It will be further observed that the plaintiff himself recognized the irregularity of the notice in the first proceeding. This is evidenced by the fact that he had the county treasurer proceed a second time to advertise the lots properly by inserting the block number. This proceeding was had after the defendant had instituted his suit.

¶8 The trial court made a specific finding that the deed from the county treasurer to the chairman of the board of county commissioners was void, which finding was based upon the petition filed by the defendant. There is nothing in the record to show that any fraud was perpetrated, nor was any attempt made to show that fraud was perpetrated by the defendant upon the trial judge in securing the judgment. The judgment remained unappealed from. The plaintiff in the instant case never at any time attempted to intervene in the prior case, and we are unable to agree with the plaintiff's contention that he was a necessary party to the action instituted by the defendant.

¶9 For the reasons above stated, we therefore hold that the judgment of the trial court is in all respects affirmed. It is so ordered.