The opinion
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CORN, J.
(dissenting). I dissent to the majority opinion for the reason it holds “That the deed does not affirmatively recite facts showing the right of the county treasurer to bid oif the property in the name of the county.”
A part of the tax deed in question is as follows;
“Whereas, Joyce Yates, did on the 17th day of June 1931, produce to the undersigned, Harry L. Brown Treasurer of the County of Stephens, in the State of Oklahoma, a certificate of purchase in writing, bearing date of 31 day of March 1931, signed by Harry L. Brown, who, at the last mentioned date was treasurer of said County, from which it appears that Stephens County did on the 5 day of November 1928, purchase at public auction at the County Treasurer’s office, in said County, the tract, piece and parcel or lot of land lastly in this indenture described and which tract, parcel or lot of land was sold to Stephens County, Oklahoma for the sum of $45.85 dollars, being the amount due on the following tract, parcel or lot of land returning delinquent for nonpayment of taxes, costs and charges for the year 1927, to wit: Lot 8 Block 33 Town of Comanche, Okla. with all improvements thereon and it further appearing from said certificate that Stephens County was the highest and best bidder for said tract, piece, parcel or lot of land at said sale.
“And it further appearing from said certificate that said Stephens County, Harry L. Brown treasurer on the 31 day of March 1931, did, for a good and valuable consideration, sell, assign, transfer and set over to Joyce Yates all of its rights, title and interest in and to said certificate, and all rights thereunder, which said assignment or transfer was duly acknowledged before an officer authorized by law to take acknowledgments of deeds in 'Stephens County and State of Oklahoma. * » *”
Section 12750, O. S. 1931, provides:
“The county treasurer is hereby authorized at all tax sales made under the laws of this state, in case there are no other bidders offering the amount due. to bid off all or any real estate offered at said sale for the amount of taxes, penalty, interest, and costs due and unpaid thereon, in the name of the county in which the sale takes place, the said county acquiring all the rights both legal and equitable that any otlwr purchaser could acquire by reason of said purchase.”
Section 12752 O. S. 1931, is as follows:
“If any person is desirous of purchasing the interest of the county in said real estate acquired bv reason of the county treasurer having bid the same off for the county he may do so by paying to said county treasurer the amount of all the taxes, penalties, interest and costs of sale and transfer up to date of said purchase and thereupon the said treasurer shall assign and deliver to said purchaser a certificate of purchase to said real estate, which assignment and transfer shall convey to the purchaser all the right and interest of said county to said real estate as fully as if he had been the original purchaser at said tax sale.”
Had an individual bought the property at said sale and the deed recited he was “the highest and best bidder,” it could just as logically be contended that an agent or representative of the landowner or someone else bid the same amount and he was not “the highest and best bidder.”
“Highest and best bidder” is a term used at public sales where property is sold to the person who iS willing to pay the most for it. “Highest” is the superlative degree of the word “high.” It can have only one meaning when used in connection with the sale of property at public auction and that is no one else bids that amount.
Webster’s New International Dictionary defines the word ‘“superlative” as follows: “Lifted up to the highest degree; most eminent; surpassing all other; supreme;
If I refer to a certain oil derrick as being the highest in the Oklahoma City field, or a mountain as being the highest in the state, or a tree as being the highest in a grove, no one would contend that I meant there were other derricks, mountains, and trees as high.
The case of Hanenkratt v. Hamil, 10 Okla. 219 , 61 P. 1050 , cited and relied upon in the majority opinion, is not applicable to the facts in this case, for the reason there is nothing in the deed there involved to even infer the county bought the property for the full amount of the taxes, or in the absence of other bidders.
In the body of that opinion is found the following language:
“* * * in tlie tax deed in this ease there is no attempt at any recital showing the absence of other bidders, or that anybody else had an opportunity to bid, or that it was necessary for the treasurer to bid it off for the county on account of the absence of bidders. But this deed relied upon by the plaintiff in error contains only the bald statement that this land was bid off by the treasurer of Logan county, and the interests of Logan county assigned to this plaintiff in error. This recital, we have no doubt, renders the deed void.”
The section of the statute construed by
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said opinion is section 79-2311, Revised Statutes of Kansas, 1923, and is as follows:
“Purchased by County. If any parcel of land cannot be sold for the amount of taxes and charges thereon it shall be bid off by the county treasurer in the name of the county for such amount.”
Our statute, section 12750, O. S. 1931, is different from the section of the Kansas statute just cited, as our statute authorizes the county treasurer to bid off all or any real estate “in ease there are no other bidders offering the amount due.”
Under the provisions of the Kansas statute. in order for the deed to be valid on its face, it would be necessary for the deed to show that the land could not be sold by the county treasurer to anyone else on account. of the absence of buyers or that they failed to bid such amount, while under our statute all that is required of the county treasurer is to show there were no other bidders offering the amount due. And when a tax deed recites that the county treasurer bid off the property for the full amount of taxes, penalties, interest, and costs, and further states that he was the highest and best bidder, it appears to me that the only liberal construction, or the only fair construction, that can be given to such recitals is there was either a failure on the account of the absence of bidders or failure on the part of those present to bid said amount.
Section 12761, O. S. 1931, in part is as follows:
“The rule that tax proceedings are to be strictly construed as against the tax purchaser, shall not apply to proceedings under this act, but in all courts its provisions shall be liberally construed, to the end that its provisions and all proceedings thereunder shall be sustained.”
I have made a careful examination of the Revised Statutes of Kansas, 1923, and am unable to find such provision in said statutes.
In Wade v. Crouch and Edwards, 14 Okla. 593 . 78 P. 91 , cited and relied upon by the majority opinion, I find the facts in the body of the opinion, on page 595, to be as follows:
“The tax deed shows on its face that the lot in question was purchased at public auction by the county treasurer, for the amount of the taxes, interest, penalties, and costs then due and remaining unpaid. There is nothing in the deed that shows, or tends to show, that the land could not have been sold to some other party for the same price, provided the treasurer had not made his bid or offer.”
That statement does not apply to the instant case because here the deed does not show that the land could not have been sold to some other party for the same price, that is, the amount of the taxes.
In Kramer v. Smith, 23 Okla. 381 , 100 P. 532 , relied upon as authority in the majority opinion, a part of the tax deed found on pages 383 and 384 is as follows:
“Whereas, Jen. T. Keller did, on the 13th day of February, A. D. 1902, produce to the undersigned, J. W. Stow, treasurer of the county of Cleveland, in the territory of Oklahoma, a certificate of purchase, in writing, bearing date of the 20th day of November, 1899, signed by J. W. Stow, who at the last-mentioned date was treasurer of said county, from it appears that Jen. T. Keller did, on the 20th day of November, 1899, purchase at public auction, at the treasurer’s office, in said county, the tracts, parcels, or lots of land lastly in this indenture described, and which lots were sold to Jen. T. Keller for the sum of eight and 21/100 dollars, being the amount due on the following tracts or lots of land, returned delinquent. for nonpayment of taxes, costs and charges for this year 1898, to wit.”
In Hill v. Turnverein Germania of Oklahoma City. 77 Okla. 242 , 187 P. 920 , also cited as authority in the majority opinion, T find the following language in the body of the opinion:
“The decisive question for determination is whether the deed is void on its face. It recites that the county purchased the land at public auction, but fails to show there were no other bidders willing to pay the taxes, interest, and penalties — the only condition authorizing the countv to purchase. It also appears that the sale was at the door of the courthouse, and not at the treasurer’s office.”
None of the cases cited in the majority opinion are applicable to the facts in this ease.
I am not willing to say the words “highest bidder,” as used in the deed, mean “that the deed does not affirmatively recite facts showing the right of the county treasurer to bid off the property in the name. of the county.” especially when liberally construed as provided in section 12761. O. S. 1931. I, therefore, dissent.
T am authorized to say that Mr. Justice WELCH concurs herein.