THIEMAN v. MAY

THIEMAN v. MAY
1950 OK 318
225 P.2d 356
203 Okla. 655
Case Number: 33844
Decided: 12/12/1950
Supreme Court of Oklahoma

Syllabus

¶0 1. TAXATION - Statute of limitations applicable only where deed issued is valid.
Neither Sec. 432f nor Sec. 455, 68 O.S.1941 nor Sec. 93, sub. 3, 12 O.S.1941, fixing the limitation within which actions may be commenced to recover land sold for taxes, applies to an action to cancel a void resale tax deed.
2. SAME - Right to quiet title to land where part owner drew down surplus paid for land at resale on erroneous information, and retendered money to county treasurer thereafter.
Sec. 11, 16 O.S.1941, will not prevent the quieting of title to a piece of land by the administrator of the estate of the part owner, her heirs and the heirs of the other owner, against the claim of the holder of a void resale tax deed, where the part owner drew down the surplus paid for the land at resale over and above the taxes on erroneous information, and who retendered the money to the County Treasurer a short time thereafter and made complete tender for all unpaid taxes, penalties, interest and costs.

Appeal from District Court, Creek County; W. H. Blackbird, Judge.

Action by Earl May, as administrator of the estate of Reba Elizabeth Quick, deceased, and Zella May and Juanita Martin, against F. P. Theiman et al., to quiet title and to cancel a tax deed. Judgment for plaintiffs, and defendant F. P. Thieman appeals. Affirmed.

Fred L. Patrick, Clyde T. Patrick, Tom Wallace, all of Sapulpa, for plaintiff in error.

T. L. Blakemore, Sapulpa, for defendants in error.

HALLEY, J.

¶1 Parties will be referred to either by name or as they appeared in the trial court.

¶2 Wade A. Quick and Reba Elizabeth Quick, husband and wife, owned twenty-one acres of land in Creek County, Oklahoma, near the town of Oilton, which they had acquired in 1937 and which they occupied as their homestead. Wade Quick died in 1939, and his widow Reba continued to live on the premises and to occupy it as her homestead until her death in 1946. The land was listed with the County Assessor as homestead property in 1939 and 1940. This land was not subject to sale for delinquent taxes because of Senate Bill No. 122 of the 1939 Legislature, being Art. 29 of Chapter 66 of S.L.1939, p. 541, 68 O.S.1941 § 351 note. Through error this land was sold for taxes and a resale tax deed issued to Thieman on May 18, 1942. The plaintiffs brought suit to determine heirs and quiet title. It is practically conceded by the defendant Thieman that his deed is a void deed, but he contends that plaintiffs cannot maintain this action because of the statute of limitations and because Reba Quick drew down the amount paid for the land over and above the taxes.

¶3 As to the statute of limitations, there is no basis for a claim as to its applicability, as we have held in numerous cases that the limitations provided in Secs. 432f and 455 of 68 O.S.1941 and in Sec. 93, subd. 3 of 12 O.S.1941 do not apply to the owner of land seeking to recover the same where the resale tax deed is void. See Smith et al. v. Barry et al., 200 Okl. 619, 198 P.2d 400; Terwilleger v. Bridges, 192 Okl. 642, 138 P.2d 79; Welborn v. Whitney, 190 Okl. 630, 634, 126 P.2d 263.

¶4 As to the plaintiff administrator's deceased drawing down the money, it appears that Thieman went to her home soon after he obtained the tax deed and told Reba Quick that he had bought the land at a tax sale and that it was his. Immediately thereafter Mrs. Quick went to the County Treasurer's office and made inquiry, and was told by the County Treasurer that her property had been sold for taxes and that there was nothing she could do about it except draw down the surplus received over and above taxes. Soon thereafter she obtained the services of a lawyer and on his advice tendered the money that she had obtained from the County Treasurer. She offered Thieman $125, the amount he had paid for the land at tax sale, and an additional $50, which was refused. The evidence showed that Mrs. Quick was not a woman of any business experience. She was ignorant and mistaken with respect to her existing legal rights, property interest, and estate in the land. By mistake, and upon erroneous advice of the County Treasurer, she believed herself to have been divested of her title, when in fact she was still the owner thereof. Acting upon this mistaken belief she accepted from the County Treasurer the surplus proceeds of the tax sale. Promptly upon learning the true facts she attempted to disavow and rescind her action in withdrawing such surplus, and tendered its return. Under the facts as disclosed by the record we think she had a right to do so, and that under the facts here she did not knowingly receive or accept the benefits of the tax deed within the meaning of Sec. 11, Title 16, O.S.1941, and is not estopped thereby from maintaining this action.

¶5 The defendant Thieman relies upon the case of Campbell v. McGrath, 117 Okl. 126, 245 P. 634, as a bar to plaintiff's recovery. The facts in the case at bar are distinguishable from that case in that Mrs. Quick did not know her rights and was incorrectly informed by the County Treasurer, and offered to return the money a few days after obtaining it. In Campbell v. McGrath, the plaintiff purchased the lots from the former owner, who had drawn down the surplus paid for the lots over and above the taxes, and no one had paid or tendered the taxes, penalties, interest and costs to the purchaser in the tax sale, as was done here, and the plaintiff knew that his grantor had drawn down the surplus.

¶6 Judgment affirmed.

¶7 ARNOLD, V. C. J., and CORN, GIBSON, LUTTRELL, and JOHNSON, JJ., concur.

¶8 DAVISON, C. J., and WELCH, J., concur in conclusion.

¶9 O'NEAL, J., dissents.