Eldridge v. Robertson

Opinion of the court by Burwell, J.: Lots numbered sixteen, seventeen and eighteen, in block numbered twenty-six, in the city of Guthrie (proper), were, by the townsite board, deeded to George C. Eldridge. These lots ’ were sold on execution issued out of the probate court of Logan county and purchased at the execution sale by one W. S. Eobertson. Subsequently, lots seventeen and eighteen, in block twenty-six, referred to above, were sold for taxes, and a tax deed issued therefor to one N. F. Frazier, who conveyed the same by quitclaim deed to one A. D. Adams. . The Denver, Enid & Gulf Eailroad Company. condemned all three of these lots and paid the condemnation money into court. Eldridge and Eobertson claimed all of the condemnation money, and Adams claims the condemnation money for lots seventeen and eighteen through *166 the tax deed therefor made to Frazier, her grantor. The trial court first tried the issue between Eldridge and Eobertson and found in favor of Eobertson, and then tried the issues between Adams and the other parties as to lots seventeen and eighteen, and found in favor of Adams; and, as the lots were of equal value, two-thirds of the condemnation money was ordered paid to Adams, and one-third to Robertson. Appeals were prosecuted to this court, and on September 6, 1906, this court, in the case of Eldridge v. Robertson (not officially reported) 87 Pac. 659, reversed the judgment of the trial court in so far as it decreed the rights of Eobertson to be ' paramount to those of Eldridge. The court held therein that the probate court had no power to decree the sale of real estate on execution. This appeal involves the rights of Adams to the proceeds of lots seventeen and eighteen, the contest in relation thereto being between her and Eldridge. As stated before, Mrs. Adams claims under a tax deed executed by the county treasurer to N. F. Frazier. If this deed is valid, then she is entitled to the condemnation money for lots seventeen and eighteen; otherwise the proceeds should go to Eldridge, the original owner of the lots. The tax deed to Frazier, under which Mrs. Adams claims, so far as necessary to consider, is in the following language: “Whereas, N. F. Frazier, did on the 11th day of Oct A. D. 1904, produce to the undersigned, Joseph Stiles, treasurer of the county treasurer's office in said county, the tract, parcel or lot of purchase in writing bearing date of the 4th day of October, 1892, signed by L. F. Laverty, who at the last mentioned date was treasurer of said county, from which it appears that N. F. Frazier did, on the 4th day of October, 1892, purchase at public auction, at the county treasurer's office in said county, the tract, parcel or lot of land lastly in this indenture described, and which lots were sold to N. F. Frazier for the sum of one hundred eighty-four and 88-100 dollars, being the amount due on the following lots of land, returned delinquent for non-payment of taxes, and costs charged for the year 1891, to-wit: Lot 5 block 1, lot 6 block 1, lot 19 block 9, lot 5 block 10, lot 6 block 10, lot 21 block 10, lot 22 block 10, lot 8 block 11, lot 4 block 13, lot 6 block 13, lot 24 block 15, lot 3 block *167 16, lot 4 block-17, lot 21 block 19, lot 5 block 21, lot 7 block 22, lot 8 block 22, lot 16 block 24, lot 17 block 24, lot 18 block 24, lot 18 block 25, lot 17 block 26, lot 18 block 26, lot 3 block 32, lot 11 block 35, lot 10 block 45, lot 3 block 55, lot 5 block 65, lot 6 block 65, lot 4 block 68, lot 20 block 68, lot 21 block 70, lot 1 block 74, lot 4 block 74, lot 18 block 87, lot 19 block 87, lot 20 block 87, all in Guthrie proper.” This deed was duly recorded in the office of the register of deeds on November 20, 1894. Is it void upon its face? This court had occasion to consider a deed which was exactly in the form of the one in this case, in an opinion prepared by Mr. Justice Gillette, in the case of Lowenstein v. Sexton, 18 Okla. 322, 90 Pac. 410. The court, after setting out a copy of the deed in so far as necessary to determine the point involved, used the following language: “The deed conveyed six separate parcels of land which were not contiguous, and recited that they were sold to plain till, Lowenstein, for the sum of $133.78, on the 3rd day of September, 1894, at the office of the county treasurer. The lot in question was sold for $43.63, which fact is not recited in the deed, but is shown by evidence produced upon the trial. It is urged that it was not necessary to the validity of the deed to this lot that the amount for which it was sold should have been recited therein. The statute governing the execution of tax deeds (section 5657, St. 1893) provides that the tax deed shall be substantially in the form which is set forth in that section, and which provides that the sum for which the property was sold should be set forth.' It was not substantially in that form i;f it failed to set out the amount for which the property was sold. The tax deed under consideration does not do this, but does set out the total sum for which the six several tracts described in the deed were sold. The language of the statute is mandatory in its terms and tenor, and has not been complied with in this respect, so far as the lot in question is concerned as shown by the face of the deed. This court in Weeks v. Murkle, 6 Okla. 714, 52 Pac. 929, uses the following language: "We find that the tax deed upon its face, by its terms, ¡ purports to convey property not contiguous, which was jointly sold for taxes. . Such fact, so found, is sufficient to invalidate the, deed. ” *168 The deed in the case now under consideration shows that a large number of lots, including lots seventeen and eighteen in block twenty-six, were sold to N. F. Frazier for the sum of one hundred eighty-four and 88-100 dollars. There is nothing in the deed that shows the sum for which either of these lots were sold. Under the decisions of this court this was necessary. Lots in a city must be listed and assessed separately. Frazier v. Prince, 8 Okla. 253, 58 Pac. 751. And while a number of lots sold for taxes to the same individual may be included in one deed, the deed must on its face show affirmatively that the different lots were sold separately, and also the amount for which each lot was sold. The deed in the case before us states that the “lots (describing all of the lots included in the deed) were sold to N. F. Frazier for the sum of one hundred eightjr-four and 88-100 dollars, being the amount due on the following lots of land, to-witThis language indicates a sale of all of the lots together at one time. Therefore the deed is void, and neither Frazier nor his grantee, Adams, could claim the proceeds of the lot under it, as against the real owner, Eldridge. In the case of Lowenstein v. Sexton, supra, the record showed a separate sale of the lots, but because ,the deed failed to recite the amount for which the particular lot sold, it was held to be void. Upon this authority, the judgment of the lower court in the case now under consideration is hereby reversed, and the cause remanded with direction to proceed in conformity with this opinion. Costs taxed to Adams. Burford, C. J., who presided in the court below, not sitting; Irwin, J., absent; all the other Justices concurring.