Cherry v. Crown Hill Cemetery Trust

WELCH, J. Plaintiff sues as the owner or former owner of the 60 acres of land involved and contends the defendant’s resale tax deed is invalid for several assigned reasons. Several others intervened, claiming to own numerous separate portions of the premises, and joined in the prayer to cancel defendant’s tax deed. There is no question but that plaintiff, or plaintiff and the interveners together, represent all of the former owners, and that the land was assessed in two 30-acre units as property owned by plaintiff. The trial court found and adjudged that the assessment of this land was void, and that therefore there was no authority to sell, and the resale tax deed was wholly invalid, and same should be canceled. For reversal the plaintiff in error presents five specifications of error. The first deals with defendant’s motion to make plaintiff’s petition more definite and certain. On that we observe that some of plaintiff’s allegations were in the nature of conclusions, as defendant asserts, but we are well convinced that any error in overruling defendant’s motion was harmless. The case was tried virtually upon agreed facts, leaving questions of law only to be determined, and it does not appear possible the defendant could have been prejudiced by any formality of pleading. As to the second specification of error, that the court erred in overruling defendant’s demurrer to plaintiff’s pe [36] tition, we find no error, in that plaintiffs petition fairly and sufficiently presented the plaintiffs cause for cancellation of defendant’s tax deed. In defendant’s third specification of error, it is urged the judgment rendered was erroneous under the law and facts. We have heretofore noted the finding and judgment. To support it we observe the following facts which are shown beyond question: That each of the 30-acre tracts placed upon the roll by the assessor included parcels separately owned by several individuals; and-if the entire 60-acre tract was not exempt from taxation in any event, each of the 30-acre assessments included land admittedly exempt from taxation. The defendant contends that at least a part of the 60-acre tract is taxable under the circumstances shown, but if it were so, the defendant’s deed would draw no validity from such fact, in view of the established invalidity of the assessments as above shown. Such an assessment is void and cannot support any sale for taxes. Egan v. Henshaw, 197 Okla. 83, 169 P. 2d 298; Evans v. Neal, 198 Okla. 515, 180 P. 2d 661; Clark v. Prince, 191 Okla. 551, 131 P. 2d 761, 144 A.L.R. 337. See, also, the annotations following Clark v. Prince, in A. L. R. See, also, the rules announced in paragraphs one and two of the syllabus of Davenport v. Doyle, 57 Okla. 341, 157 P. 110. The facts shown in the preceding paragraph dispose of defendant’s specification of error that the trial court erred in not requiring plaintiff to tender the taxes, interest and penalty referred to in 68 O. S. 1941 §§453-455. We have applied that statute in many cases where it has application. But we have pointed out that in cases where the attempted assessment is void, there is nothing to support a tax levy, nothing is legally required or could be legally required to be paid to redeem. In such case, as where the land is tax exempt, the tender statute has no application. Egan v. Henshaw and Evans v. Neal, supra. The one remaining specification of error in overruling motion for new trial is disposed of by what we have said as to the other alleged errors. The assessments of these two tracts of land were wholly void, and all that followed thereon a nullity. The trial court properly so found in canceling the resale tax deed. Affirmed. HURST, C.J., and BAYLESS, GIBSON, ARNOLD, and LUTTRELL, JJ., concur. DAVISON, V.C.J., concurs in result. RILEY, J., concurs specially.