# Johnson v. August > Court of Civil Appeals of Oklahoma · October 25, 2005 · 125 P.3d 1243 URL: https://www.frixlaw.com/law-library/cases/5153148 ## Case - **Full name:** Chris JOHNSON and Suzette Johnson, Husband and Wife Gilbert L. DuPertuis and Patricia A. DuPertuis, Husband and Wife and Chad Miller v. Julia AUGUST and Julia August d/b/a TNT Enterprises - **Court:** Court of Civil Appeals of Oklahoma - **Decided:** October 25, 2005 - **Citations:** 125 P.3d 1243; 2005 OK CIV APP 97; 2005 Okla. Civ. App. LEXIS 89; 2005 WL 3488875 - **Precedential status:** Published - **Opinion:** Dissent by Stubblefield - **Judges:** Goodman, Reif, Stubblefield - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5153148 ## Opinion text STUBBLEFIELD, Acting P.J., dissenting: ¶ 1 I respectfully dissent because I believe this case falls squarely within the dictates of the Oklahoma Supreme Court’s decision in Adams v. Parks, 1967 OK 217 , 435 P.2d 122 (syllabus 2), which held: The 15-year period of adverse possession necessary for prescriptive title to realty may be interrupted, and a claim of title based thereon extinguished by a tax resale of property; but, where such period entirely elapsed, and such claim of title matured, before the 1941 resale, and the prescriptive claimant or his successors in title, thereafter remained in possession until after expiration of the period [of five years set forth in the statute of limitations] for instituting an action for the recovery of real property sold for taxes, prescriptive claimant’s title may be correctly quieted against those claiming under the tax resale deed. [12 O.S.1941 § 93(3).] I see this as a clear holding that a holder of prescriptive title, still in possession, must prevail over a person claiming by resale tax deed where the prescriptive title matured prior to the issuance of the tax deed. The Adams Court expressly determined that Kasner v. Wilson, 1950 OK 58 , 215 P.2d 833 , did not apply where title had been obtained by adverse possession prior to the issuance of the tax deed. Adams, 1967 OK 217 at ¶ 13 , 435 P.2d at 125-26 . ¶ 2 The majority acknowledges that Plaintiffs’ prescriptive title had vested prior to the issuance of the tax deed (according to uncon-troverted affidavits in the record) and does not dispute that Plaintiffs remained in possession of the disputed property. However, it attempts to read into Adams something other than the true holding of the case. I consider totally dispositive the fact that the Adams Court favorably cited language to the effect that the limitation period in which to *1249 maintain an action to cancel a tax deed does not run against a claimant of prescriptive title still in possession. Id. at ¶ 14, 435 P.2d at 126 (quoting Walker v. Hoffman, 1965 OK 36 , ¶ 17, 405 P.2d 57, 61 ). Thus, when Plaintiffs filed this quiet title action, they had no legal impediment to their cancellation of the original tax sale, as part of an action to cancel the tax resale deed of TNT. If they need to amend their petition to do so, or add additional parties, then they should be granted leave to amend. ¶ 3 A related basis for reversal of the summary judgment is that it is undisputed that Plaintiffs’ first notice of a challenge to their ownership of the disputed property came after TNT obtained the resale tax deed, and then notified all Plaintiffs by mail that it claimed part of their lands by virtue of the deed, but would sell the property to them for $19,500 each. However, 68 O.S.2001 § 3118(A) requires that, before a party holding a tax sale certificate is entitled to a tax deed, he or she must cause “a written notice signed by such holder to be served ... upon the owner of the land if the owner is within the state, wpon the person in possession of the land, if the same be occupied, and upon all mortgagees and lienholders of record of the land.” It is not disputed for purposes of the summary judgment that Plaintiffs were in possession of the disputed land. Thus, it appears on the face of the pleadings that there was a total failure of the statutory notice requirement. The undisputed facts of record tend to demonstrate that Plaintiffs may maintain an action against the County, along with TNT, to set aside the original tax deed. Again, if Plaintiffs need to amend their petition to pursue this relief, they should be granted leave to do so. See 12 O.S.2001 § 2019. ¶ 4 I note the Oklahoma Supreme Court’s language in Adams that “[a] party in actual possession of real estate cannot be ousted from such possession or his title divested by merely recording a tax deed of which he may not be aware and under which nothing is claimed.” Adams, 1967 OK 217 at ¶ 14 , 435 P.2d at 126 (quoting Walker, 1965 OK 36 at ¶ 17, 405 P.2d at 61 ). That language is especially pertinent to this case where the Plaintiffs apparently had no notice whatsoever of the tax deed proceedings until TNT demanded that each Plaintiff pay $19,500 for their own lands. ¶ 5 Another reason for reversal apparent of record, and even noticed by the majority, is that TNT did not file an action to quiet title, nor file a cross-petition to Plaintiffs’ action, or even affirmatively ask in its answer that title be quieted. Yet the Trial Court quieted title as against Plaintiffs. This is an order outside the scope of the requested relief and is fundamentally erroneous. ¶ 6 I conclude that the Trial Court erred in granting summary judgment. Prom the record it appears that Plaintiffs eventually should prevail in their action. Certainly, they should be entitled to fully elicit the facts of the case and amend to add any necessary parties. I would reverse the appealed judgment and remand for further proceedings. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5153148. Public record. Not legal advice.