Perkins v. Masek

IRWIN, Justice

(dissenting).

Case No. 20,423, referred to in the majority opinion was an action in the District Court of Osage County to reform a void tax deed and to quiet title to the property described in the reformed tax deed. The issue in that case was not the validity or invalidity of the. tax deed as issued by the County Treasurer, but the reformation of a void tax deed, the determination that *108 the same as reformed was valid and quieting title to the property described in the reformed tax deed.

In my judgment, the controlling and decisive issue involved in this appeal is the power and the authority of the District Court to render the judgment it rendered in Case No. 20,423. For the reasons hereinafter set forth, I can see no legal distinction in the case at bar and in this hypothetical situation: A owns tract X; the taxes on X become delinquent and are subject to be sold for taxes; all the proceedings relating to the tax sale describe tract Y; the tax deed describes tract Y and the same is issued to B. B institutes an action against A to reform the tax deed so that the description will cover tract X and to quiet title to tract X. In my opinion, if a district court does not have the power and authority to reform the tax deed and quiet title under the circumstances set forth in the hypothetical situation, it did not have the power and authority to reform the tax deed and quiet title thereto in Case No. 20,423.

I say there is no legal distinction between the circumstances in the case at bar and the hypothetical situation because of the fact that the description in the void tax deed which the trial court reformed, and the description of the property in all the proceedings relating to notice, sale and issuance of the void tax deed, were insufficient to particularly describe and identify the property and did not furnish an unmistakable clue as to the identity of the tract, and its location could not be definitely ascertained within the boundaries of a larger tract. The only way the location of the property could be ascertained was by parol evidence and evidence dehors the record. The rule in Oklahoma is that parol evidence and evidence dehors the record is not admissible to supply the deficiency in a description to show what property the assessor intended to assess and sell for delinquent taxes. See Watts v. Meriwether, 184 Old. 32, 84 P.2d 643 . This proposition will be discussed later. The majority opinion holds that the tax deed was void because the description was too indefinite but that the district court had the power to reform such deed. To sustain the district court’s power to reform the void tax deed the majority opinion relies on cases from other states which in my opinion are not applicable or even persuasive. The cases relied upon are: Kneeland v. Hull, 16 Mich. 55 , 74 N.W. 300 , decided by the Supreme Court of Michigan in 1898. In that case the County Treasurer’s record of the tax sale showed that a five-sixths interest was sold and the tax certificate attempted to convey the whole interest and the court held that when the County Treasurer’s record of a tax sale and the certificate based thereon conflict, the former must be treated as the original entry. Hickman v. Kempner, 35 Ark. 505 , decided by that court in 1880, held that where an owner intends to pay the taxes on one tract, and so informs the collector and pays him the proper amount, and the collector by mistake, gives a receipt for a different tract, and the one actually paid on is delinquent and sold for taxes, the owner may show the actual payment against the purchaser at tax sale. Crompton v. Kirkland, 157 Fla. 89 , 24 So.2d 902 , held that if land is sold for a tax improperly assessed, the true owner, if in possession, may maintain a bill in equity against purchaser to quiet title. In Riggle v. Skill, 9 N.J.Super. 372 , 74 A.2d 424 , a judgment was affirmed which set aside a deed where the purchaser was either guilty of fraud or had knowledge of a mutual mistake of fact between him and the taxing authorities. Baranco v. Reymond, La.App., 176 So. 673 , held that where the description in a tax deed is so defective as to describe no property at all, the tax sale is null and cannot be confirmed, but, where the description is merely ambiguous and the property may be identified by evidence dehors the deed, the sale is not null, and the correct description may be shown in an action to confirm the title. Neal v. Louisville, 3 Ky. Law Rep. 614 , was an appeal from Jefferson Circuit Court, which was affirmed and *109 filed by the Supreme Court in 1882, and not reported.

In my judgment, only one of the above cases would be applicable to the case at bar if such holding were not contrary to this Court’s holding, and that is the Louisiana case of Baranco v. Reymond which held that evidence dehors the record can be admitted to clarify an ambiguous deed. In my opinion, Oklahoma is committed to the rule that where a tax deed is void for the reason the description is too indefinite, the same is not subject to reformation. However, we have qualified this rule by holding if a tax deed itself contains a description which identifies and furnishes an unmistakable clue as to the identity of the land, and its location can be definitely ascertained within the boundaries of a larger tract, the deed can be reformed to show the correct and true description. See Watts v. Meriwether, 184 Okl. 32 , 84 P.2d 643 , and Schuman v. Moses, 193 Okl. 634 , 146 P.2d 290 .

In Watts v. Meriwether we said [ 184 Okl. 32 , 84 P.2d 647 ]:

“ * * * The rule is that if the assessment role or tax deed itself “contains a description which identifies and furnishes an unmistakable clue as to the land intended, parol evidence may be used to explain the description or apply it to its intended object; but if the description is insufficient and furnishes no clue, parol testimony is not admissible to supply the deficiency and show what property the assessor intended to assess. * * * ” (Emphasis mine.)

It is apparent the Watts v. Meriwether rule is contra to the Louisiana rule with reference to the admissibility of evidence dehors the record. Therefore, in my judgment, because of the insufficiency of the description, parol evidence would not be admissible to supply the deficiency and such deed was not subject to reformation. And if the void tax deed was not subject to reformation, the trial court did not have the power or authority to reform the void tax deed.

In the case of State ex rel. Southern Surety Co. v. Armstrong, 158 Okl. 290 , 13 P.2d 198, 199 , we held:

“ ‘Power is synonymous with authority or right. Where it is clear that a court has no power under the law to render a particular judgment under any circumstances, the judgment is void, and subject to collateral attack.’ State ex rel. v. District Court, 33 Wyo. 281 , 238 P. 545 .

“ ‘A judgment is void when it affirmatively appears from the inspection of the judgment roll, that any one of the three following jurisdictional elements are absent: First, jurisdiction over the person; second, jurisdiction of the subject matter; and, third, judicial power to render the particular judgment.’ Winona Oil Co. v. Barnes, 83 Okl. 248 , 200 P. 981 .”

I am of the conviction that the reformation of the void tax deed in Case No. 20,423, was beyond the power, right and authority of the trial court to grant and the judgment reforming the deed by correcting the description is void on the face of the judgment roll and of no force and effect and can be attacked in any proceeding, at any time. See State ex rel. Southern Surety Co. v. Armstrong, supra; Glover v. Warner, 135 Okl. 177 , 274 P. 867 ; Thompson v. Yates, 184 Okl. 86 , 85 P.2d 415 ; Zipperle v. Smith, Okl., 304 P.2d 310 ; Faulkner v. Kirkes, Okl., 276 P.2d 264 , 47 A.L.R.2d 418 ; Magnolia Pet. Co. v. Young, Okl., 264 P.2d 757 ; and Pettis v. Johnston, 78 Okl. 277 , 190 P. 681 .

I therefore respectfuly dissent to the opinion promulgated by a majority of my associates.

I am authorized to state that Mr. Vice Chief Justice BLACKBIRD, and Mr. Justice HALLEY concur in the views herein expressed.