Board of County Com'rs v. City of Wewoka Ex Rel. North

HURST, J. This case involves-the respective rights of the holder of special assessment lien for street improvements and the county, holder of a resale tax deed, covering a lot in the city of Wewoka. The material facts are these: The bonds sought to be foreclosed were issued April 26, 1924. The last three installments due for the years 1931, 1932, and 1933 not being paid, the owners of the bonds commenced this action on May 13, 1937, to foreclose the lien, then amounting to $249.22. At the 1939 tax resale, while said clause was still pending, the property was sold to Seminole county for the delinquent ad valorem taxes for the years 1930 to 1938, both inclusive, for the sum of $295.56. Thereafter, and on May 16, 1940, an amendment to the petition was filed making the board of county commissioners of Seminole county a party defendant. The delinquent paving assessments were not referred to in the notices or other proceedings in connection with the original sale or the resale. The trial court entered judgment foreclosing the special assessment lien, and in effect holding that thé lien is superior to the title of the county. From that judgment the board of county commissioners appeals. The former owner, A. Thelma Johnson, does not appeal. While the board argues the case under six separate propositions, we think but three questions are presented, (1) whether the statute making the special assessment lien coequal with the ad valorem tax lien is constitutional, (2) the effect on the special assessment lien of the failure of the county treasurer to advertise and sell the property for the delinquent special assessments on the resale to the county, and (3) the effect of the resale of the property to the county on the provision for coequality of the liens. These questions will be disposed of in the order stated; 1. 11 O. S. 1941 § 103 provides that the lien for special assessments for street improvement shall be “coequal with the lien of other taxes.” This provision has been before this court before, and has been enforced, but we do not find where its constitutionality has previously been questioned. The board of county commissioners contends thaf it is violative of section 53, art. 5, anc section 5, art. 10, of the State Constitution. Neither constitutional provision has to do with tax liens. As we pointed out in State v. Passmore, 189 Okla. 232, 115 P. 2d 120, 136 A. L. R. 324, “in the absence of constitutional provisions to the contrary, liens for taxes, their duration, extent and priority are purely statutory.” The special assessments involved in this case were levied under a statute enacted under specific authority contained in section 7, art. 10. of the State Constitution. We hold that the statute making the two liens coequal does not have the effect of surrendering, suspending, or contracting away the power of taxation in violation of the provisions of section 5, art. 10, nor does it have the effect of “releasing or extinguishing, in whole or in part,” ad valorem tax liabilities contrary to the provisions of section 53, art. 5, as construed in Ivester v. State, 183 Okla. 519, 83 P. 2d 193. 2. The next question for decision is the effect on the special assessment lien of the failure of the county treasurer to sell the property to satisfy both liens and to include in the notice of the original sale and the notice of the resale any reference to the amount due for special assessments. That the treasurer had the right to sell the property to satisfy both liens is settled by Oklahoma City v. Vahlberg, 185 Okla. 28, 89 P. 2d 962, where we analyzed many of the decisions discussed by the parties in the instant case, and came to the conclusion that delinquent special assessments are “delinquent taxes” as that term is used *144 in 11 O. S. 1941 § 106, and are to be collected as other taxes on real estate are collected. It is clear that under section 106 it is the duty of the city or town clerk to certify to the county treasurer the delinquent special assessments, and it is likewise the duty of the county treasurer to place such assessment upon the next “November delinquent tax list of the same year prepared by the treasurer of said county” and to collect the same “as other delinquent taxes are collected.” Failure of the county treasurer to perform this duty has brought about the problem presented in the instant case. The statutes provide two cumulative remedies for the foreclosure of the special assessment lien: (1) Under 11 O. S. 1941 § 107, any bondholder may foreclose said lien by a special class action, but in such an action the lien for ad valorem taxes cannot be affected prior to the resale of the property to the county; and (2) the county treasurer may foreclose the special assessment lien by sale of the property to satisfy the same at the regular tax sale and resale, and at such resale both liens (the one for special assessments certified to him and the one for ad valorem taxes) are extinguished if the property is advertised and sold to satisfy both. Oklahoma City v. Vahlberg, above. The effect of a resale by the county treasurer was stated in section 12756, O. S. 1931, 68 O. S. A. § 415, as follows: “And within said thirty (30) days the county treasurer shall execute, acknowledge and deliver to the purchaser or his assigns a deed conveying the real estate thus resold, which deed shall be upon a form to be prescribed by a (sic) State Examiner and Inspector, and which shall contain a provision expressly canceling and setting aside all delinquent taxes, penalties, interests and costs previously assessed or existing against said real estate, including ad valorem and outstanding individual and county tax sale certificates, and such deed shall vest in the purchaser and grantee of said real estate an absolute and perfect title in fee simple to said land.” On April 15, 1939, section 12756 was repealed by the 1939 resale law (article 31, ch. 66, S. L. 1939, 68 O. S. 1941 §§ 432-432p) and section 7 of that act (68 O. S. 1941 § 432f) fixes the effect of a resale tax deed as follows: “The issuance of such deed shall effect the cancellation and setting aside of all delinquent taxes, assessments, penalties, and costs, previously assessed or existing against said real estate, and of all outstanding individual and county tax sale certificates; and shall vest in the grantee an absolute and perfect title in fee simple to said lands.” The effect of the two provisions is substantially the same. The 1939 act provides that “assessments” shall be canceled. Section 12756 did not specifically mention “assessments” as being canceled, yet in Oklahoma City v. Vahlberg, above, we held that the term “delinquent taxes” found in that section included delinquent special assessments certified to the county treasurer. This court has consistently held that, despite the sweeping language contained in the quoted portion of section 12756, a resale of property does not' affect the special assessment lien where the county treasurer does not purport to sell the property for the special assessments and does not include them in the notice of sale and resale. See McGrath v. Oklahoma City, 156 Okla. 34, 9 P. 2d 711; Settle v. Frakes, 156 Okla. 53, 9 P. 2d 768; Service Feed Co. v. City of Ardmore, 171 Okla. 155, 42 P. 2d 853. By these decisions full effect was given to the rule of equality of the two liens, and the provisions of 11 O. S. 1941, sections 103 and 12756, were harmonized and reconciled. We find nothing in the 1939 resale law to indicate that the Legislature intended to change the effect of the failure of the treasurer to advertise and sell the property at the resale to satisfy the special assessment lien. We have examined the authorities from other states cited by the parties, but do not find them helpful, as they involve constitutional and statutory provisions materially different from *145 ours. We conclude that the special assessment lien was not extinguished by the resale of the'property to Seminole county for the ad valorem taxes only. 3. The next question is whether, as argued by the bondholder, the special assessment lien is now superior to the claim of the county, and whether the equality of the liens has been affected adversely to the interests of the county. The bondholder relies on Schuman v. Board of County Commissioners, 184 Okla. 339, 87 P. 2d 151, which holds that a valid resale to the county extinguishes the ad valorem tax lien. The question here presented was not involved in that case. While it is true that the ad valorem tax lien is merged in the title acquired by the county, yet the Legislature did not intend such a sale to work a disadvantage to the county. Full effect can be given to the statutory rule of equality of the two liens only by holding that the lien for ad valorem taxes will be preserved as against the special assessment lien even after the county has acquired title to the property by resale for ad valorem taxes only. We thus preserve the equality of the two liens, and reject the contention of each side that the lien of the other was extinguished by the resale to the county. 4. While the parties have not argued the question as to the distribution of the proceeds from the sale of the property under the judgment appealed from, yet it inheres in the decision. 11 O. S. 1941 § 107, which authorizes the foreclosure action by a bondholder, provides: “Such judgment shall carry the costs of such action, together with the costs of such sale; and upon the payment of such judgment, the amount thereof, exclusive of such costs, shall be paid to the city or town treasurer and become a part of the separate special fund to pay such outstanding bonds and interest thereon. Such judgment shall provide for the sale of said real estate subject to existing general or ad valorem taxes and special assessments.” This provision indicates that the Legislature did not intend that the ad valorem tax lien shall be affected by the foreclosure proceedings. However, since the county now owns the fee-simple title, it may be sued and the claims of the county and the bondholders may be marshaled. See 19 O. S. 1941 §1; State v. Passmore, above. If the property does not sell for enough to satisfy both liens and the costs of foreclosure and sale by the present action, it follows that the costs must come out of the pro rata share of the sale price properly belonging to the bondholders, and no part of same shall be paid out of the share belonging to the county. In determining the share belonging to the county, the court costs and costs of sale in this proceeding are not to be considered. The bondholders, by electing to go the expensive route rather than to require or permit the property to be sold by the county treasurer to satisfy both liens, has caused the costs of this foreclosure proceeding to be incurred. And, of course, the only way a title contemplated by the statute, which will cancel and extinguish both the ad valorem tax lien and the special assessment lien, can be given is to sell the property at the same time to satisfy both liens, and this can be done only under the tax sale and resale laws, or as is being done in the instant case. Sale to satisfy only one lien subject to the other lien chills the sale and causes the property to bring an inadequate price. We do not now determine whether a sale under a foreclosure judgment “subject to existing general or ad valorem taxes,” as provided in section 107, above, prior to the sale of the property at resale to satisfy only the ad valorem taxes, would make the title of the purchaser at the foreclosure sale inferior to the ad valorem tax lien, since that question is not here presented. The cause is remanded, with directions to cause the property to be sold in the manner provided by law, and to divide the proceeds of the sale in ac *146 cordance with the views herein expressed. WELCH, C. J., CORN, V. C. J., and OSBORN and BAYLESS, JJ., concur. DAVISON, J., dissents in part and concurs in part. RILEY and GIBSON, JJ., dissent. ARNOLD, J., absent.