DAWSON v. ANDERSON

Oklahoma Supreme Court1913-05-20No. No. 2564

38 Okla. 167132 P. 666

Summary · law.co

Holding. The trial court's judgment canceling the tax deed was affirmed because the certificate holder failed to comply with the mandatory statutory requirement of proper notice service prior to issuance of the tax deed, as the record showed only deficient service to an unidentified agent without establishing the agent's identity or authority.

A property owner sought to cancel a tax deed and recover land by tendering all taxes, penalties, fees, costs, and interest owed. The central question was whether the certificate holder had properly served notice on the owner before the county treasurer issued the tax deed, as required by territorial statute. The statute mandated that written notice be served on both the landowner and any occupant, specifying the sale date and advising that a tax deed would issue unless redemption occurred within sixty days of service. For nonresidents or persons who could not be located, notice was to be published in a county newspaper for three weeks.

The record showed only a sheriff's return indicating that notice was delivered to an unnamed agent on January 7, 1909, but no other details about the agent's identity or authority appeared. The court applied the principle that the notice filed with the county clerk would be presumed the only notice given absent evidence to the contrary. Because statutes governing tax sale notice procedures are mandatory requirements, and the return of service failed to identify the agent or establish compliance with statutory requirements, the deficiency in notice service was fatal to the validity of the tax deed process.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Compliance with statutory notice requirements in tax deed proceedings
Sufficiency of service of notice to unnamed or unidentified agent
Mandatory versus directory nature of tax sale notice statutes
Presumption regarding filed notice as sole notice given

Procedural posture

The plaintiff brought an action to cancel a tax deed and recover the property by tendering all outstanding taxes and charges; the trial court rendered judgment in the plaintiff's favor, and the defendant appealed.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

WILLIAMS, J.

The defendant in error, as plaintiff, commenced an action against the plaintiff in error, as defendant, to have a certain tax deed canceled, making tender of the full amount of the taxes, penalties, fees, costs and interest chargeable against the land covered by said deed. Issues having been joined, the case was tried to the court without a jury, and judgment rendered in favor of the plaintiff.

The only question essential for determination is: Did the defendant, as a condition precedent to the issuance of the tax deed by the treasurer of Jackson county, fail to have proper notice served?

Section 1, art. 4, c. 28, p. 234, Session Laws of Oklahoma Territory 1903, provides:

“Before any holder of a certificate of purchase issued at any tax sale of real estate shall be -entitled to a deed, as provided in section No. 5666 of the statutes of 1893, he shall cause a written notice signed by him to be served upon the owner of the land in the county wherein said sale took place and also upon the person in possession of the said land (if the same be occupied) which notice shall recite the sale of the said lands specifying the date of such sale, and notifying such persons that unless redemption is made from such sale within sixty days after the date of the service of such notice, a tax deed will be demanded and will issue as provided by law. In case either of the persons to be notified, as hereinbefore provided, shall be a nonresident of the territory of Oklahoma, or cannot be found in the county where such real estate is located, the service shall be made by publication for three weeks in some newspaper published at the county seat of the county in which said lands are situated, and the said sixty days shall begin to run from the date of .the first publication thereof. Hntil the expiration of the said sixty days, redemption may be made by any person authorized by law to redeem. Service and return shall be made in the manner as that of suminons under the act- of civil procedure in the courts of record. The notice, with the tax sale certificate, after being duly served or published, or both, shall be returned and filed in the office of the county clerk, who shall make notation of its date and the date of service on the delinquent sale record, and the fees for such service and publication, shall be the same’ as for like service of summons, and shall be added to the amount necessary to redeem such sales. The notice herein provided for may be served at any time after a date not exceeding sixty days prior to the expiration of two years subsequent to the day of sale.”

The onty notice desclosecl by the record shows service in words and figures as follows:

“This notice came into my hands this 27th day of Dec., 1908, and I certify that I served the same on the within named agent by delivering him a true copy served on the 7 day of Jan., 1909. Geo. C. Hensley, Sheriff, ,S. L. Richardson, Deputy.”

Neither the name nor the identity of the alleged agent appears in the record.

It will at least be presumed, in the absence of other testimony, that the notice of the tax sale certificate served or published, or both, and returned and filed in the office of the county clerk, was the only notice served. City Ry. Co. v. Chesney, 30 Kan. 199, 1 Pac. 520. Statutes relating to tax sales, prescribing the manner of the service of notices, are mandatory. Wilson v. McCornack, 10 Okla. 180, 61 Pac. 1068; Sanford v. Edwards, 19 Mont. 56, 47 Pac. 212, 61 Am. St. Rep. 482, and authorities therein cited; Harris v. Sargeant, 37 Ore. 41, 60 Pac. 608; French v. Ajax Oil & Development Co., 44 Wash. 305, 87 Pac. 359.

The judgment of the lower court must be affirmed.

HATES, C. J., and KANE and TURNER, JJ., concur; DUNN, J., absent.