Fiedler v. Botts

*246 GALBEAITH, C. Tbe plaintiffs in error, as plaintiffs, commenced this suit in the trial court on April 4, 1913, against the defendants in error, as defendants. It was alleged in the petition that the plaintiffs were the owners and were occupying a tract of land embracing an area of 20 acres, less some 3 or 4 acres that had been conveyed to others; that this land had been sold for taxes for the year 1907; that a certificate issued to the purchaser at such tax sale in November, 1908; that the defendant Botts was the holder by assignment of that certificate; and that he had paid the taxes on said land for the years 1909, 1910, and 1911, setting out the amount of each payment, and attaching a copy of the certificate of purchase to the. petition. It was alleged that the land had been fraudulently assessed for taxes for the year 1907, and that such tax was void, and the sale of the land for taxes was void, and that the certificate of purchase issued for 'the same was void, for the reason that the treasurer of the county at said sale “sold said land as a whole and in one body, and did not offer said land at said tax sale to the person or persons who offered to pay the amount due for the taxes on the said land for the year 1907 for the smallest portion of the same.” There was no tender or offer in the original petition to pay the amount of taxes due, but on September 15, 1913, by permission of the court, the same was amended as follows: “That in case of any claims or demands of said defendant Wm. G. Botts for or on account of taxes paid upon said premises above referred to, or tax certificates or demands held by him against the real estate above described, be declared void, that the plaintiff be permitted to discharge the same with reasonable interest.” It was also alleged in the petition that the holder of the certificate .of purchase had served notice upon plaintiffs that he would apply to the county treasurer on the 15th day of April, 1913, for a tax deed under said certificate of purchase, and that, unless restrained from so doing by order of the court, the treasurer would execute a deed in pursuance to said notice. The *247 prayer was for a ■ restraining'order against the county treasurer prohibiting him from issuing and' delivering the tax deed in pursuance to' said' notice, and that a day be set for hearing an application for a. temporary injunction, and that at said hearing a perpetual injunction be granted enjoining the plaintiffs from issuing the tax deed on such certificate of purchase. The treasurer answered denying the allegations' of the petition. The' de-' fendant Botts answered by a general denial, and also specially denied that the taxes for the year 1907, for which the land had been sold, Avere illegally and fraudulently assessed, and also denied that the taxes for 1909, 1910, and 1911 were illegally assessed’, averring that he had paid the taxes as the holder of said certificate of purchase in the manner provided by law, and specially denied that the ’assessments for the years for Avhieh he paid the taxes Avere exorbitant or fraudulent in any respect, and denied that the tax certificate which he held Avas void, and further alleged: “That he avers that the plaintiffs have no right to maintain the said action for 'the reason that they have a complete and adequate remedy at law, and for the further reason that they had failed to -pay or tender or offer to pay the true and just amount of the taxes dire on said. property for the years covered by the said tax certificate of sale, and have failed to have true and just amount of said tax, if -the amounts shown by the said tax sale certificate are not trae"and just, ascertained and paid, and have not offered to do so.” The prayer was that the injunction be denied, and that he have judgment' for costs. Upon the issues made by the pleadings the cause Avas tried to the court. The plaintiffs called as a witness the person who had issued the certificate of sale ’ as county treasurer. After showing that he Avas treasurer at the time of the tax sale in dispute, the following question was asked: “Q. Now, Mr. Oafferty,-during the year 1908 which was the first tax sale you had, or .1909, when you sold property for taxes, how did you offer it for sale?” *248 and immaterial, and for the further reason that it calls for a conclusion, and for the practice or custom of the witness, and not for the sale of the specific property involved in this case.” *247 This question was objected to - as — “incompetent; irrelevant, *248 The objection was sustained. A further objection was then made to the competency of the witness. The tax certificate was then introduced in evidence by the defendants, which was admitted to be in the form required by the statute. The objection to the comptency of the witness was then renewed on the ground that, the witness having issued the certificate, and the same being an official act, he could not be heard to contradict it or to vary its terms in any respect. This objection was sustained. The counsel for the plaintiffs then offered to prove by the witness that the property was sold on November 6, 1908, and that- when it was offered for sale it was not offered to the bidder who would pay the amount due on any parcel of .the land "or the smallest portion of the same. This offer was objected to on the same ground and sustained. The plaintiff then offered to prove by the witness that it was the general and uniform course in his office as county treasurer in selling real estate for delinquent taxes to offer the whole tract for sale for the amount of taxes due, instead of the smallest portion of the same. This offer was objected to on the same grounds and sustained. The plaintiff then offered to show by the witness that, while he had no independent recollection of selling the property in dispute, it was his custom and .uniform course of business in selling real estate for delinquent taxes to offer the entire property as a whole; that he never did offer the land to the person who would pay the amount due on any portion of it. This was objected to on the same ground and sustained. 'The plaintiffs excepted to each of these rulings. Whereupon the plaintiffs rested, and the defendants also rested, and the court announced judgment dissolving the temporary injunction, and against the plaintiffs for costs. The journal entry of judgment ■orders a dissolution of the restraining order’, and denies a perpetual injunction, and directs judgment against the plaintiffs for costs. 'Plaintiffs have perfected an appeal to this court, and have *249 argued one assignment of error, namely, that the court erred in sustaining objections to the question propounded to the treasurer issuing the certificate of sale, and also in sustaining the objection to the competency of the witness, as well as to the offers of proof by the same witness. It does not seem necessary to pass upon this assignment of error, or the objections argued. As we view the case, after carefully reading the petition, we are inclined to hold: that these errors of the court, if any, were not prejudicial, for the reason that the petition does not state 'facts sufficient fto show the plaintiffs' entitled to any, equitable relief. This is a suit |in equity, and is | an appeal to ‘ the conscience of the chancellor for (relief. One of the 'fundamental ./principles jgoverning 'the chancellor in administering justice is, “That he who does iniquity cannot have equity.” These plaintiffs, without offering to pay the amount of legal taxes assessed against their property, as required by statute to do before commencing suit (section 6041, Wilson’s Stat. 1903; Gray v. Stiles, 6 Okla. 455, 49 Pac. 1083), or without attempting to pursue the statutory remedy giving them the right to redeem their property from sale for taxes by the payment of the amount of the taxes due, and interest, to the county treasurer at any time before the deed has issued (section 6041, Wilson’s Stat. 1903), seek to enjoin the treasurer from issuing a deed in pursuance to the certificate of purchase, which the statute prescribes he shall do, upon demand of the holder of the certificate at any time after two years from the date of the sale (section 6036, Wilson’s Stat. 1903). The plaintiffs in error seem to be obsessed with the idea that they can defeat their taxes by charging and showing some irregularity in the proceedings of the officer who conducted the tax sale. This idea seems to be assumed as self-evident. This is a mistake. This assumption and their conduct, as appears by the allegations of the petition, clearly shows iniquity on their part, on account of which a court of conscience should deny them relief. *250 . Again, they have not shown the diligence demanded of suitors in a court of conscience. They stood -by for four or five years after the property had been sold and permitted the purchaser to pay the annual taxes due thereon for 1909, 1910, and 1911. What was said by Judge Sanborn in announcing the opinion of the Circuit Court of Appeals of the Eighth Circuit in Michigan Pipe Line Co. v. Freemont Ditch, Pipe Line & Reservoir Co. et al., Ill Fed. 284, at page 287, 49 C. C. A. 324, at page 327, is apt in this connection: “A suit in equity is an appeal for relief to the moral sense of the chancellor. A court of equity is the forum of conscience. Nothing but good faith, the obligations of duty, and reasonable diligence will move it to action. Its decree is the exercise of discretion; not of an arbitrary and fickle will, but of a wise judicial discretion, controlled and guided by the established rules and principles of equity jurisprudence. One of the most .salutary of these principles is expressed by the maxims, ‘He who comes into a court of equity must come with clean hands/ and ‘He who has done iniquity cannot have equity.’ A court of equity will leave to his remedy at law — will r’efuse to interfere to grant relief to — one who, in the matter or transaction concerning which he seeks its aid, has been wanting in good faith, honesty, or righteous dealing. While in a proper case it acts upon the conscience of a defendant to compel him to do that which is just and right, it repels from its precincts remediless the complainant who has been guilty of bad faith, fraud, or any unconscionable act in the transaction which forms the basis of bis suit. 1 Pom. Eq. Jur. 397, 398, 400; Medicine Co. v. Wood, 108 U. S. 218, 227, 2 Sup. Ct. 436, 27 L. Ed. 706; Marble Co. v. Ripley, 10 Wall. 339, 357, 19 L. Ed. 955.” Applying these principles to the' instant case, we are convinced that the facts set out in the petition were not sufficient to entitle the plaintiff to any equitable relief, and, if the court had admitted the testimony which was excluded, still the result of the suit would not have been different, and the judgment should not,’ in any event, have been for the plaintiffs. *251 The ' delay ' in taking active steps to redress their alleged wrong, the failure to offer to pay the amount of legal taxes due, the evident purpose to escape the payment of all taxes on their property for four years, and their willingness to defeat the claim of one "who had, in good faith, paid these taxes against their property, taken together, affords abundant reason why the door of a court of equity should have been closed against them. We therefore recommend that the exception be overruled, and the judgment appealed from be affirmed. By. the. Court: It is so ordered.