Diehm v. Carver

HURST, V.C.J. The question presented is whether the plaintiffs are entitled to equitable relief from the resale of a five-acre tract of land in Oklahoma county sold at the 1941 resale, under the rules stated in Grimes v. Carter, 185 Okla. 469, 94 P. 2d 544, Headley v. Hall, 191 Okla. 352, 129 P. 2d 1018, and Martin v. Bodovitz, 194 Okla. 614, 153 P. 2d 825. The material facts presented by the record are as follows: The plaintiff, Henry F. Schwarze, was the former owner of the property, having purchased it in 1929 'and taken title in the name of the plaintiff, Andrew Diehm, brother of Mrs. Schwarze. The taxes against the property for 1932 were •paid by Schwarze on November 7, 1933, and those for 1934 were paid by Schwarze on December 14, 1934, and the receipts therefor were kept by Schwarze and introduced in evidence. On December 22, 1936, a Mr. Victor paid the taxes for 1933. The property was advertised for sale at the 1940 tax resale for the delinquent taxes for 1930, 1931, and 1935. The 1940 resale was concluded on August 16, 1940, and Schwarze gave the treasurer a check dated August 5, 1940, and indorsed by the treasurer on August 8, 1940, for $10.05 in payment of the taxes for 1931 and 1935, for which he was given the tax receipts for those years. Schwarze gave the treasurer a check dated August 9th and indorsed by the treasurer on August 10, 1940, for $2.74 in payment of the taxes for 1930, for which he was given the tax receipt, and it was introduced in evidence. The property was then removed from the 1940 tax resale. It is clear that the taxes for 1936 to 1940 were not paid, and the property was advertised and sold for those taxes at the 1941 resale. The decisive question is one of fact, and is whether, when Schwarze paid the taxes for 1930, 1931, and 1935, he was advised by'Walter J. Ross, deputy county treasurer, that those checks paid all the back taxes against the property and whether Schwarze in good faith relied upon such statement and was thereby misled by such misinformation. The record clearly shows that in 1935 the county treasurer installed in his *650 office a system by which, soon after the tax rolls for each year are delivered to him, he causes to be written in triplicate tax receipts for each piece of property in Oklahoma county. These receipts are kept in a separate jacket for each piece of property. In August, 1940, tax receipts for 1930, 1931, 1935, and those for 1936 to 1940 were in the jacket kept for said property. Schwarze testified that Ross told him that the two checks he gave in August, 1940, paid all the back taxes on said property. He was positive in this testimony, but his testimony on many other details was unsatisfactory in that he could not answer many questions. The testimony of Ross was likewise unsatisfactory. At one time he testified positively that he examined the jacket containing the receipts for this property and that he did not tell Schwarze that he was paying all his back taxes, and at another time he testified that he did not know whether or not he told Schwarze he was paying all his back taxes. The plaintiffs, in order to demonstrate that their contentions are correct, point to the testimony of Schwarze that in August, 1940, he told Ross that he wanted to pay all his taxes on said property, and that he was advised by Ross that he was paying all his back taxes, also to the testimony of Ross that he did not know whether he so advised Schwarze, also to the fact that Schwarze had money in the bank with which to pay said taxes, also to the fact that there was a pencil notation on' the tax record “paid 3-5-1940,” and that Ross must have relied upon that record when he advised Schwarze that he was paying all his taxes. The defendant, in order to sustain the finding of the trial court, points to the testimony that the property had been advertised at the 1940 resale for the delinquent taxes up to and including the 1935 taxes, and that Schwarze, like many other property owners, probably intended to pay only enough of the back taxes to take it off the resale, which would not include the taxes subsequent to those for 1935, also to the testimony of Ross that in all cases where owners desired to pay their back taxes he examined the jacket containing receipts filled out for each of the years for which there were unpaid taxes, and that he followed this practice in the present case, and that at one place in his testimony he testified that he did not tell Schwarze that he had paid all his taxes against said property, also to the fact that Schwarze regularly paid his taxes on other property owned, also to the testimony that the receipts for 1930, 1931, and 1935 were marked issued on August 8, 1940, thus tending to corroborater the testimony of Ross that he saw Schwarze in the office but the one time, and the three receipts were issued the same day, also to the fact that he had the receipts for the taxes he paid on this property in 1933 and 1934, for the years 1932 and 1934, thus showing that he kept his records and had knowledge of the taxes that he had paid, also that in September, 1937, he had a complete abstract made on the property so that he could borrow $400 on the same, which he did, and that the abstract showed the 1936 taxes not paid, also to the fact that under the efficient system in use in the treasurer’s office the jacket which would be examined in receiving any taxes would reflect all back taxes not paid, also to the fact that the testimony of Schwarze that a few days after he paid the taxes for 1931 and 1935 the deputy called his attention to the fact that he had not paid the 1930 taxes is incredible, since a deputy in a busy office would not likely examine the jacket containing the receipts a second time and on his own motion, to check as to other taxes that were unpaid, also to the fact that Schwarze learned that the property had been sold at the tax resale several days before the resale deed was executed and delivered to Carver, during which time Schwarze could have redeemed the property from the resale. This, being an action to quiet title, is one of equitable cognizance, in which *651 the appellant has the burden of showing that the judgment of the trial court is clearly against the weight of the evidence. Maynard v. Hustead, 185 Okla. 20, 90 P. 2d 30. We have carefully considered the evidence and the contentions of the parties and are unable to say that the appellants have sustained the burden cast upon them. The trial court was justified in finding that Schwarze did not intend to pay all'his back faxes in August, 1940, but intended to pay only enough to prevent the property from being sold at the 1940 resale, and that Ross followed the custom that obtained in the office of consulting the jacket containing the receipts for taxes not paid. The trial court, who observed the demeano.r of the witnesses and their manner of testifying, was in better position to determine what weight to give to the testimony of the witnesses than is this court from a reading of the record. Affirmed. OSBORN, BAYLESS, WELCH, CORN, and ARNOLD, JJ., concur. RILEY and DAVISON, JJ., dissent.