Crewson v. Spencer

WELCH, J. Plaintiff Spencer sued to quiet title and for possession of two residence lots in Tulsa. He based title upon resale tax deed to Tulsa county made in 1927, and county deed to him given in 1940. Defendant Crewson, in answer, denied generally plaintiff’s title, and affirmatively pleaded that the resale deed to the county was void on its face for various reasons, including alleged errors of recitation as to tax years; errors in notice of sale; error in assessment of the two lots; omissions in recitations as to back taxes; erroneous sale of two lots and certain recitations asserted to be false. It was defendant’s position that the resale deed to the county was void, and therefore the county deed to plaintiff was void. Upon trial, plaintiff introduced in evidence the resale deed and his county deed, and rested. When defendant offered to introduce evidence on his defense he was met by the requirement of tender of taxes. (68 O. S. 1941 §§ 453 and 455.) *583 Upon defendant’s refusal to tender, the court sustained objection to introduction of evidence and rendered judgment for plaintiff for possession and quieting title. On this appeal defendant urges that in an ejectment action the defendant under general denial may make any defense, legal or equitable, that would strengthen his own title or defeat his adversaries, citing Rowsey v. Jameson, 46 Okla. 780, 149 P. 880. That rule does not apply where the statute prohibits the defendants from interposing any defense. Here the defense consisted of an attack upon a resale tax deed, and such defense cannot be made in the absence of tender. Schulte v. Herndon, 184 Okla. 77, 84 P. 2d 607; Hill v. Henry, 190 Okla. 413, 124 P. 2d 405, and Knisely v. Board of Trustees, Town of Skiatook, 192 Okla. 1, 134 P. 2d 971. In the Hill Case, supra, we held: “One who, as either plaintiff or defendant, seeks to attack or avoid a tax deed or a claimed title asserted under a tax deed must comply with the applicable provisions of the statute relating to tender. (68 O. S. 1941 §§ 453 and 455.) “Where, in an action to recover possession and quiet title under a tax deed, the defendant, as the asserted holder of the regular title and prior record owner of the property, desires to resist the recovery of possession, he must make the tender contemplated by statute (68 O. S. 1941 § 453) unless the tax deed was issued when there were no taxes due by reason of exemption of the land from taxation; nonassessment of the land; or prior payment of the taxes.” An examination of the resale deed in this case fails to disclose that same is void on its face. The form thereof is the same as the form examined and approved in Cooper v. Board of Com’rs of Tulsa County, 188 Okla. 42, 105 P. 2d 1052. The two lots described in the deed are presumed to be one parcel. Flint v. Board of County Com’rs of Tulsa County, 188 Okla. 628, 112 P. 2d 157. Other attacks sought to be made on the resale deed require showings contradictory to the face of the deed, and of course do not support the contention that same is void on its face. In reply brief defendant refers to a portion of his answer pleading in general effect that the property was not assessed according to law, and that illegal assessments and taxes were made and had against the lots. It is suggested that such portion of the answer be treated as a defense of payment of a part of the taxes. However, we are not able to so construe that portion of the answer. It appears quite clear that such portion of the answer was only a part of defendant’s attack upon the validity of the resale tax deed, which could not be made without the required tax tender. Furthermore, no such contention was made at the trial or in defendant’s first brief here. The judgment is affirmed. CORN, C. J., and RILEY, OSBORN, BAYLESS, HURST, DAVISON, and ARNOLD, JJ., concur. GIBSON, V. C. J., dissents.