BOWEN v. THOMPSON

BOWEN v. THOMPSON
1926 OK 812
249 P. 1109
120 Okla. 5
Case Number: 16803
Decided: 10/12/1926
Supreme Court of Oklahoma

BOWEN
v.
THOMPSON et al.

Syllabus

¶0 1. Taxation--Tax Deed Void for Failure to Give Notice. A tax deed issued to the holder of a certificate of purchase at a tax sale of real estate is void where the written notice, as provided by statute, is not served upon the owner of the land in the county where such sale took place, and upon one in possession where same is occupied.
2. Champerty and Maintenance -- Deed by One not in Possession not Void as to Person not in Adverse Possession. Under section 2215, Comp. Stat. 1909, providing that a deed conveying real estate, executed by a grantor at the time when he was not in possession of the conveyed premises, is void as between the grantee and a person who was at the time of the conveyance in adverse possession of the conveyed premises, such deed is not void where no one was in such adverse possession, or the one in adverse possession does not question such deed.

Green & Pruett, for plaintiff in error.
Bowling & Farmer, Bridges & Vertrees, and Anderson & Anderson, for defendants in error.

ESTES, C.

¶1 Parties appear in the same order as in the trial court. Plaintiff, Bowen, sued defendants to quiet title to a certain parcel of real estate, basing action upon a purported tax deed. The taxes for 1915, became delinquent and a certificate was issued in 1916 to one Welcome, who assigned same to one Keyser. In 1922 Keyser applied for and procured a tax deed, and thereafter conveyed the real estate to the plaintiff, Bowen, Geo. W. James, a Choctaw Indian, was the allottee of the realty prior to October 10, 1908. On said date certain persons representing that said allottee was dead, and that they were his sole and only heirs, conveyed the real estate in controversy to one Copeland, who thereafter mortgaged same to plaintiff, Bowen, who thereafter purchased the land at sheriff's sale on foreclosure of his mortgage. These transactions occurred prior to 1915 when said taxes became delinquent. Said allottee had not departed this life, and on November 18, 1910, conveyed the parcel of land to defendant Thompson and one McConahey; the latter having died, defendant Alice McConahey succeeded in interest, as his sole devisee. The court found that said tax deed relied upon by plaintiff was invalid, and rendered judgment for defendants, from which plaintiff appeals.

1. The first error assigned is the holding such deed invalid. The statutes then provided that the holder of a certificate of purchase issued at tax sale, in order to be entitled to a tax deed, should cause a written notice signed by himself to be served upon the owner of the land and also upon the person in possession, if the same be occupied, reciting certain required matters. This notice was served upon Bowen, but not served upon Thompson and McConahey, or any one in possession. Manifestly, the sheriff's deed on foreclosure, by which Bowen claimed title, was absolutely void, for that Copeland, the mortgagor, had no title whatever from said pretended heirs of the allottee. It is not contended that the deed dated November 18, 1910, from the allottee to defendants was invalid. It is alleged that the same was duly recorded, and stated in the brief, and not denied by plaintiff, that same was recorded prior to the time notice was given for obtaining the tax deed. It is well settled that the notice upon the owner required by said statute is jurisdictional, and the failure to give the same renders the tax deed absolutely void. Dawson v. Anderson,