CARNES v. THOMAS

CARNES v. THOMAS
1955 OK 33
280 P.2d 474
Case Number: 36227
Decided: 02/15/1955
Supreme Court of Oklahoma

OSCAR CARNES AND GRACE CARNES, PLAINTIFFS IN ERROR,

v.

GEORGE THOMAS AND IRENE THOMAS, DEFENDANTS IN ERROR.

Syllabus

¶0 1. Sewer assessment liens are not canceled by sale and resale of assessed properties for delinquent ad valorem taxes, unless such liens are included in notice of the sales.

2. Where title is derived from a County Treasurer's resale tax deed issued to purchasers thereof at a resale for delinquent ad valorem taxes only and at a subsequent tax sale and resale a second County Treasurer's resale tax deed is issued on the same property for delinquent sewer assessments, which lien or assessments were not advertised in the first tax sale, the second resale tax deed canceled the first and vested in the second resale tax deed holder a new fee-simple title.

3. Delay to constitute laches must be unreasonable and inexcusable under circumstances shown. Whether laches will apply in any particular case does not depend on lapse of time, but on facts and circumstances disclosed. Laches legally speaking is not mere delay but delay that works a disadvantage to another than party guilty thereof. Record examined and held, defense of laches not available to plaintiffs.

[280 P.2d 475]

Appeal from the District Court, Creek County, Kenneth Hughes, J.

Don W. Walker, T.L. Blakemore, Sapulpa, for plaintiffs in error.

R.E. Stephenson, Sapulpa, for defendants in error.

JOHNSON, C.J.

¶1 Plaintiffs, defendants in error, brought an action against Oscar and Grace Carnes, appellants (and others who did not appeal) in ejectment and to quiet title to lots One (1) to Ten (10) inclusive, in Burnett Addition to the City of Sapulpa, Creek County, Oklahoma, which lots are situated in Sewer District No. 7 therein.

¶2 The parties will be referred to hereafter as they appeared in the trial court.

¶3 Defendants complain of a final judgment rendered against them on September 21, 1953, for possession of said property, and quieting title thereto in the plaintiffs.

¶4 Defendants' title is derived from a County Treasurer's resale tax deed issued to them as the purchasers thereof at the 1941 resale for $7.20 delinquent ad valorem taxes, and plaintiffs' title is based upon a County Treasurer's resale tax deed issued [280 P.2d 476] to them after the 1951 resale for $1,270 delinquent (ad valorem) sewer assessments.

¶5 This particular sewer district has been the subject matter of litigation for a long period of time. See Berryhill v. City of Sapulpa (Gibbs v. City of Sapulpa [consolidated]), 97 Okl. 65, 222 P. 555; Payne, v. Smith, 107 Okl. 165, 231 P. 469; State ex rel. Bonney v. Arthurs, 197 Okl. 215,

¶6 There is no dispute as to the deraignment of the title of the defendants and plaintiffs but defendants argue that their resale tax deed title is valid and superior to the resale tax deed title of plaintiffs, thus entitling them to have their title quieted with continued right of possession.

¶7 The sale of the property for delinquent ad valorem tax did not foreclose the sewer lien where, as in this case, in the 1941 sale the property was not advertised for sale for the delinquent sewer (assessment) lien. Sewer assessment liens are not cancelled by sale and resale of assessed properties for delinquent ad valorem taxes, unless such liens are included in notice of the sales. Holloway v. Davis, Okl.,

¶8 Defendants interpose several assignments of error, but we shall consider only whether the first resale tax deed of defendants was cancelled by the plaintiffs' second resale tax deed, and whether plaintiffs have been guilty of laches.

¶9 In this case the defendants' resale tax deed was valid but subject to cancellation by a subsequent resale tax deed and was cancelled by the subsequently issued resale tax deed of plaintiffs. The second sale cut off all interests acquired by purchasers at tax sales for taxes prior to that upon which the tax deed is based. See Taylor v. Lawrence, 176 Okl. 75,

¶10 Defendants next contend, among other things, that the plaintiffs cannot recover by reason of laches, but this contention is without merit. That question relative to the property involved herein was settled in the Stephenson v. Bonney case, supra, 202 Okla. 549,

¶11 An examination of the record herein shows that the delay was caused by the property owners, and not the bondholders. However, in this connection, defendants claim that plaintiffs are also barred by the applicable statutes of limitations, citing Versluis v. Hamilton, 207 Okl. 325,

¶12 For the reasons stated, the judgment is affirmed.

¶13 WILLIAMS, V.C.J., and WELCH, CORN, DAVISON, HALLEY and JACKSON, JJ., concur.