Coleman-Nelson Gasoline Co. v. Montgomery

CLARK, V. C. J. This action was commenced in the district court of Muskogee county, by plaintiff in error, Coleman-Nelson Gasoline Company, a corporation, against defendant in error, E. P. Montgomery, to enjoin the defendant in error from trespassing upon certain real estate and from tearing down and removing certain improvements thereon. The parties will be referred to as they appeared in the trial court. Plaintiff alleged it was the owner of the said properties and in possession thereof. The properties consisted of real estate and improvements thereon by way of oil refinery, buildings, machinery, etc.; that defendant without notice or warning entered said premises and was attempting to take possession thereof and tear down and remove the improvements thereon; that unless restrained defendant will continue to tresp'ass upon and remove and destroy plaintiff’s property, and plaintiff will be irreparably injured. That defendant is insolvent and unable to respond in damages. Plaintiff prayed for judgment restraining the said defendant from trespassing on said property or removing the improvements therefrom, or taking possession thereof. Said petition was verified. Defendant filed a general denial and alleged he was in possession of said property. That he was entitled to possession of said property; that he was the owner thereof and deraigned his title to said real estate by deed from Muskogee county, and he attached copies of the deed and bill of sale to his answer. Defendant prayed that his title to said property be quieted in him, and that he be decreed possession of said property, and that plaintiff be enjoined from interfering with his possession. By way of reply, plaintiff denied the allegations of the answer, and alleged that the deed from the county of Muskogee to the defendant was void for the reason not sufficient notice was given of the purchase thereof by defendant, and that the resale deed from the county treasurer to the county foi' said property was void for the reason the resale deed shows on its face that sale was *287 made to the county on the 9th of August, 1926, whereas the sale for delinquent taxes was completed on the 12th day of July, 1926; that the hill of sale was void for the reason the property attempted to be sold was not personal property, but real property. Judgment was entered for defendant, quieting his title to the property and giving him possession thereof, and enjoined the plaintiff from interfering with defendant’s possession. Motion for new trial was filed and overruled. Plaintiff below brings the cause here for review. The plaintiff in error contends that the court erred in denying plaintiff a permanent, injunction, and in quieting and settling title in the property in the defendant. The question of possession was before this court in the case of Montgomery v. Coleman-Nelson Gasoline Co., 130 Okla. 14, 264 Pac. 895, on appeal from the temporary injunction, and the court held that defendant in error in that case, plaintiff in error in the ease at bar, was in possession of the prop'erty at the time the suit was filed. At the time the temporary injunction was granted, from which order the appeal was tahen, which was decided in Montgomery v. Coleman, supra, the issues were not ma&e up. The question now before the court is based upon the answer of defendant in error setting up his title and praying that his title be quieted in him and for possession of the property. The county deed issued to the defendant is based upon property acquired by the county by resale, and is governed by section 5, chap. 158, Sess. Laws 1923, which provides in part as follows: “* * * Any property acquired by the county under the provisions of this section may be sold by the treasurer at such price as may after notice by publication be approved by the board of county commissioners. Said notice of publication shall be given by the treasurer in the official county paper, and shall embrace a description of the property, the price, and to whom proposed to be sold, and stating that he will, on a given date to be stated in the notice, apply to the board of county commissioners for its approval of said sale, and for an order directing that deed for said property be executed by the chairman of said board. The proceeds of sale of any property acquired by the county under the provisions hereof shall accrue to the common school fund of the county.” The only contention raised by the plaintiff in error that the county deed to defendant in error was void was that suflL' eient notice was not given of the sale from the county to the defendant. Section 5, chap. 158, Sess. Laws 1923, does not state the length of time such notice shall be given, but states, “Said notice of publication shall be given. * * *” We construe this provision as meaning that a reasonable notice shall be given and that a reasonable notice is such notice as required by statute in that character of proceeding. The evidence shows that the offer to purchase by the defendant was made on the 13th day of August, 1926, notice by publication was had on the 14th of August, 1926, showing the application would be made to the board of county commissioners for the approval of the sale on August 16, 1926, and the sale was approved by the board of county commissioners and the sale accepted and approved on the 16th day of August, 1926. In the ease of Smith v. Bostaph, 103 Okla. 258, 229 Pac. 1039, this court said in the second paragraph of the syllabus: “In matters pertaining to tax sales, statutes prescribing the manner of service of notice and the issuance of tax deeds thereunder are mandatory and not directory.” In the case of Clewell v. Cottle, 99 Okla. 84, 225 Pac. 946, in the third paragraph of the syllabus, this court said: “A tax deed void on its face vested in plaintiff no interest in the title to the land therein described, and, as plaintiff must prevail on the strength of his own title, a judgment clearing his title thereto is void.” The notice given in the case at bar is not a reasonable notice, and not such notice as contemplated by the statute, supra, and the giving of the notice being mandatory, as held in the ease of Smith v. Bostaph, supra, the deed of the defendant in error was void. This court held in the case of Clewell v. Cottle, supra, the void deed vests no interest in the property, and the defendant in error acquired no interest in the property by such deed. The possession of the property in question being in plaintiff in error at the institution of the suit, as heretofore decided by this court in Montgomery v. Coleman-Nelson Gasoline Co., supra, and the deed of the defendant in error being void, the judgment of the trial court is hereby reversed, with directions to enter judgment for plaintiff in error. LESTER, C. J„ and HEFNER, CULLI *288 SON, SWINDALL, ANDREWS, McNEILL, and KORNEGAY, JJ., concur. RILEY, J., dissents. On Application for Rehearing'.