Lawyer v. Crowe Coal Co.

HURST, V.C.J. C. Ray Lawyer sued Crowe Coal Company, J. E. Chancey, John T. Cole, and several others to recover possession of a 40-acre tract of iand in Okmulgee county and to quiet title thereto. Lawyer claims title under a resale tax deed executed on April 28, 1930, and recorded on February 4, 1931. This suit was commenced on January 1, 1938. Cole filed a demurrer to the petition as amended on the ground that the same does not state a cause of action and on the ground that the action is barred by the statute of limitations. He did not tender the taxes in said demurrer, and the plaintiff filed a motion to strike the demurrer for failure to comply with the tender statutes. This motion was denied. Thereafter, Chancey filed a demurrer for the same reasons stated in the demurrer filed by Cole. The plaintiff did not move to strike the demurrer filed by Chancey. .The demurrers were sustained and the cause was dismissed. None of the other defendants appeared. Thereafter, the plaintiff filed an application to reopen the cause and to be permitted to file a supplemental pleading showing the payment of the taxes subsequent to the issuance of the tax deed and the redemption from a resale under the 1939 tax resale law. This application was denied. Plaintiff appeals. Plaintiff argues three propositions, (1) error in failing to require compliance with the tender statute, (2) error in sustaining the demurrers, and (3) error in refusing to permit plaintiff to reopen the case and file a supplemental pleading. Under the view we take of the case, it is necessary that we discuss only the first two propositions. 1. The first question is whether the former owner of land sold for taxes can be heard to question the sufficiency of a petition by the tax title holder to recover possession, by a demurrer to the petition, without complying with the tender statute, 68 O.S. 1941 § 453. That statute provides that “the person desiring ... to resist the recovery of possession by the holder of the deed . . . must, when ... a defense to a recovery of possession is plead, tender in open court for the use of the holder of the tax deed, all taxes, penalties,, interests and costs, which the party seeking to redeem would be bound to pay if he was then redeeming the land from tax sale, and on failure so to do, his . . . defense . . . shall be dismissed.” Does the demurrer to the petition constitute a “defense” to the action within the meaning of said statute? We think so. A demurrer to a petition raises issues of law as to the legal sufficiency of the petition to entitle the plaintiff to any relief. 21 R.C.L. 504; 41 Am. Jur. 438; 49 C.J. 366. It is designated as a pleading by our statutes (12 O.S. 1941 §§ 261, 263) and is so recognized by the law generally. 49 C.J. 368. The demurrer constitutes a defense on the legal grounds stated therein. In New Jersey v. New York, 6 Pet. 323, 8 L. Ed. 414, Chief Justice Marshall said: “A demurrer is an answer in law to the bill, though not, in a technical sense, an *467 answer according to the common language of practice.” We have held that a party may waive the tax tender statute by going to trial without raising the question. Courtney v. Worley, 181 Okla. 399, 74 P. 2d 370; Twyford v. Stephens, 183 Okla. 534, 83 P. 2d 578. But, here, the plaintiff specifically raised the question against Cole, and the record is silent as to whether it was urged as against Chan-cey. Under the circumstances, we think it cannot be said that the record shows that plaintiff waived the right to have the tax tender statute complied with. The statutes recognize no pleading to a' demurrer. It is clear that, under said statute (68 O.S. 1941 § 453), a defendant as former owner is not entitled to present a defense to recovery of possession by the tax title holder without complying with the tender feature of said statute. Schulte v. Herndon, 184 Okla. 77, 84 P. 2d 607. And in Thompson v. Yates, 184 Okla. 86, 85 P. 2d 415, we stated that “since the defendants did not comply with the tender statutes, they were not entitled to have their general demurrer (to the petition) sustained.” 2. We are of the opinion, and hold, that the plaintiff’s action is barred by the two-year statute of limitations found in the Code of Civil Procedure, 12 O.S. 1941 § 93 (3). We held in Lane v. Bass, 193 Okla. 682, 146 P. 2d 563, that this statute applies to such an action by the holder of a resale tax deed. The plaintiff relies upon Swan v. Kuehner, 157 Okla. 37, 10 P. 2d 707, and Fullerton v. Carlock, 179 Okla. 230, 65 P. 2d 464. These cases are based upon the assumption that 12 O.S. 1941 § 93 was a part of our statutes before the resale statute was enacted, and that paragraph 3 thereof relates only to certificate tax deeds. But the Revised Laws of 1910 were adopted in 1911 as a revised code and it contained provisions for both certificate tax sales and tax resales (sections 7392-7414) as well as a general statute of limitations governing actions concerning real property (section 4655) which is identical with 12 O.S. 1941 § 93, and the provisions of that code should be construed together and harmonized. Both the original or delinquent tax sale and the tax resale constitute sales “for taxes” and the deeds based thereon constitute tax deeds as the terms are used in 12 O.S. 1941 § 93 (3). These cases (Swan v. Kuehner and Fullerton v. Carlock) were referred to in Lane v. Bass, above, but were not specifically overruled. Insofar as' they are in conflict with Lane v. Bass and this opinion, they are hereby specifically overruled. The cause is remanded with directions to give the defendants a reasonable time after the mandate is spread of record within which to comply with the tax tender statute, 68 O.S. 1941 § 453, and, if they do so comply, the trial court is directed to enter judgment sustaining the demurrers to the petition, otherwise the judgment is reversed with directions to strike the demurrers and to proceed not inconsistently with the views herein expressed. RILEY, BAYLESS, WELCH, CORN, DAVISON, and ARNOLD, JJ., concur. GIBSON, C. J., and OSBORN, J., dis.sent.