Howerton v. Board of Com'rs of Tulsa County

GIBSON, J. This is an action by the purchaser of a void resale tax deed to recover from the county and from the county treasurer individually and as such official the sum paid therefor at the sale. The trial court sustained a demurrer to plaintiff’s evidence and rendered judgment for defendants, and plaintiff appeals. The evidence consisted of a stipulation to the effect that the land described in the deed was a restricted Indian allotment and not subject to taxation for the years for which it was sold, and the testimony was that the plaintiff paid the county the sum of $171.78 therefor at the resale, and that the defendants still retain the money so paid. Plaintiff relies on no statutory authority granting permission to maintain such a suit, but casts his action in assumpsit for money had and received. Defendants take the position that in order to maintain an action for the recovery of money against the county there must be a statute authorizing it, or the claim sued on must arise from contract, express or implied, which finds authority in law. Schulte v. Board of County Commissioners, etc., 122 Okla. 205, 253 P. 494. They say that the only statutory authority for the recovery of money paid for a void tax deed is found in section 12749, O. S. 1931, 68 Okla. St. Ann. § 390, and that said section does not apply to resale tax deeds, but to certificate deeds alone. Defendants are correct in their statement that the above statute does not apply to resale tax deeds. Schuman v. Board of County Commissioners, etc., 163 Okla. 118, 21 P. 2d 40; Sinclair Prairie Pipe Line Co. v. Excise Board of Tulsa Co., 173 Okla. 375, 49 P. 2d 114. And we agree that there is no statutory authority for the maintenance of a suit against the county for the recovery of money paid for a void resale tax deed. We also agree that the contract which the law implies in case of money had and received is not of that character which the county is authorized by statute to execute or to consummate. But plaintiff says in effect that, due to the particular circumstances of the instant case, permissive legislation was unnecessary to his right to recover. It is urged that, since no taxes were due the county, it had no lien on the land and no authority whatever to offer the same for sale; that the deed in legal effect was nothing more than a scrap of paper. Swan v. Kuehner, 157 Okla. 37, 10 P. 2d 707. Such circumstances, says plaintiff, renders the case materially different from those cases where there are taxes actually due the county and the deed is void for some reason other than the nontaxability of the land. Payment of taxes, it is urged, or the purchase of the land at a sale to satisfy an asserted tax lien, where no tax is due, does not constitute that character of voluntary payment where the party paying is left without recourse against the county, but in such case the county wrongfully receives the money, and, as in the case of an individual, holds the same for the use of the party making the payment, and the county is subject to the implied promise to repay. Though a count for money had and received may be proper in an action against the county to recover money paid for a void tax deed (61 C. J. 1477), the general rule is that the holder of such deed has no remedy against the county or its officers in the absence of permissive legislation. 61 C. J. 1463, §§ 2069, 2071. The latter section states the rule as follows: “In the absence of statutory provision for relief, the holder of an invalid tax title has no remedy against the body *171 for whose benefit the sale was made nor against the official making the sale.” And such is the common-law rule. Section 2072, Id. In Sinclair Prairie Pipe Line Co. v. Excise Board, above, we held as void a judgment for refund of money paid for a void resale tax deed, saying: “There is no provision of law for a refund to the purchaser of a resale tax deed of the amount of the original purchase money.” Since there is no statutory authority for the refund in the instant case, there can be no recovery from the county. The governing rule is stated in Levy Bros. v. Board of Commissioners, etc., 101 Okla. 241, 225 P. 387. It reads as follows: “The rule of caveat emptor applies to purchases at tax sales, and a purchaser’s only remedy is such as is provided by statute.” So far as the treasurer is concerned, he may proceed in good faith and in the manner provided by law to collect the taxes appearing on his tax rolls and ordinarily be saved from personal liability. 61 C. J. 1463, supra. See, also, Vahlberg. Co. Treas., v. Porter, 177 Okla. 380, 59 P. 2d 771, 773. Plaintiff relies on the last-cited case as authority supporting his action for money had and received and his right to recover the sum paid for the deed. It was held there that a count for money had and received was proper in an action against the county treasurer in his official capacity to recover money paid in satisfaction of taxes representing levies declared illegal by the Court of Tax Review. But the refund in that case was authorized by statute, section 12313, O. S. 1931, 68 Okla. St. Ann. § 339. The case is therefore not in point. Plaintiff also cites Meriwether v. Board of Commissioners, etc., 150 Okla. 223, 1 P. 2d 390, but, like the above case, there was statutory authority for the refund. Other cases and texts dealing with the remedy of money had and received are called to our attention. But they are of no weight in actions for the recovery of money paid for tax titles where no statutory authority for refund exists. The judgment is affirmed. WELCH, C. J., and OSBORN, BAY-LESS, and ARNOLD, JJ., concur. CORN, V. C. J., and RILEY, HURST, and DAVISON, JJ., dissent.