unsuccessful party cannot complain of trial court’s error when he would not have been entitled to succeed anyway
How later courts described this case
- unsuccessful party cannot complain of trial court’s error when he would not have been entitled to succeed anyway
Written by the judges who cited it.
The opinion
SIMMS, Vice Chief Justice,
specially concurring in result:
The partition sale at issue here occurred 53 years ago. In my opinion the time to challenge that sale or the subsequent transfer because of 12 O.S.1981, § 769 has long since passed.
Although I agree that the trial court correctly held in favor of the state, I cannot join in this decision. The majority gratuitously expresses in dicta that not only does § 769 apply to partition sales, but a challenge under it may be raised for the first time, indirectly a half-century later by subsequent grantees. I would simply deny cer-tiorari, but since the majority discusses these issues at length and decides the questions posed, these observations are necessary.
First, it is not plain to me that § 769 would apply to a partition sale, even if raised in timely fashion. We have held that because of substantial differences in the nature of partition proceedings and execution sales, statutes governing sale on execution are not mandatory, but only directory for partition sales. 1
*937 We have at least one ease, Benson v. Fore, supra, fn. 1, where this same circumstance of a subsequent indirect transfer of title to a commissioner in a partition action was before the Court. While not raised as an issue, the Court took care to point out the commissioner’s identity, but did not find it invalidated the transaction or indicate that the identity of the commissioner/purchaser who had no prior interest in the land, would be of importance in setting aside the transaction.
Clearly, even if § 769 was once applicable, it is not raised in a timely fashion here. This is a collateral attack on a judgment and deed over 50 years old. Every statute of limitations of possible relevance has long since expired.
Proper challenge to the sale or subsequent transfer could have been made at the time by motion to set aside the sale, motion objecting to confirmation or a direct appeal on same ground. 2 We have no direct attack here. So far as we are aware, the parties in the partition action were satisfied with the amount of the commissioners’ valuation, they received their fair and full share of the money, did not appeal the judgment and never challenged the subsequent transfer. Nonetheless, the majority uses this case to make § 769 into a larger than life statute; unaffected by the ordinary constraints of time and relevance.
The majority relies on the construction of this statute by Kansas when we adopted it. The decision in Galbraith v. Drought, 24 Kan. 421 , 422 (1880) does not support the holding in this case, however. There the challenge by reason of an ineligible purchaser was initiated immediately after the sale transaction. Galbraith does not sanction complaint about a sale fifty years after the event.
Kansas has, in fact, rejected the rule adopted by the majority here, and held that an attack on a sale by reason of an alleged ineligible purchaser, must be brought within the applicable statute of limitations. In Shell Oil Co. v. Board of County Commr s., 171 Kan. 159 , 231 P.2d 220 (1951), that court held that although a county commissioner was an ineligible purchaser in a county tax foreclosure sale, an action to vacate the proceedings may not be commenced after the specific applicable statute has run. The court held that was true whether the sale and deed were considered void or merely voidable.
Title 12, O.S.1981, § 93 clearly governs actions commenced to challenge partition proceedings. It provides:
“Actions for the recovery of real property, or for the determination of any adverse right or interest therein, can only be brought within the periods hereinafter prescribed, after the cause of action shall have accrued, and at no other time thereafter:
(1) An action for the recovery of real property sold on execution, or for the recovery of real estate partitioned by judgment in kind, or sold, or conveyed pursuant to partition proceedings, or other judicial sale, or an action for the recovery of real estate distributed under decree of district court in administration or probate proceedings, when brought by or on behalf of the executor debtor or former owner, or his or their heirs, or any person claiming under him or them by title acquired after the date of the judgment or by any person claiming to be an heir or devisee of the decedent in whose estate such decree was rendered, or claiming under, as successor in interest, any such heir or devisee, within five (5) years after the date of the recording of the deed made in pursuance of the sale or proceeding, or within five (5) years after the date of the entry of the final judgment of partition in kind where no sale is had in the partition proceedings; * * *
* ⅜5 sft * * sf:
(6) Numbered paragraphs 1, 2, and 3 shall be fully operative regardless of whether the deed or judgment or the precedent action or proceeding upon *938 which such deed or judgment is based is void or voidable in whole or in part, for any reason, jurisdictional or otherwise; provided that this paragraph shall not be applied so as to bar causes of action which have heretofore accrued, until the expiration of one (1) year from and after its effective date.”
The provisions regarding partition were added by Laws 1945, p. 37, § 1. Since 1946 then, 5 years has been the time limitation for attempting to set aside a deed or judgment because an allegedly ineligible purchaser took title after a partition sale.
Before 1945, the relevant time would have been 15 years under 12 O.S.1931, § 93.4, in an “action not hereinbefore provided for.” Now 12 O.S.1981, § 93(4).
We have statutes of limitations to avoid just the situation which the majority creates here: allowing the rights of parties to be decided not by prior judgments of courts of law and filed documents, but by testimony about what someone did or did not do, or did or did not intend to do, fifty years ago.
I am authorized to state that Justice WILSON joins with the views expressed herein.
. See, Hargis v. Hargis, 181 Okl. 377 , 73 P.2d 1129 (1937); Benson v. Fore, 136 Okl. 185 , 276 P. 742 , 64 A.L.R. 154 (1929).
. See e.g., Hargis v. Hargis, supra, Note 1; Brown v. Neustadt, 145 Okl. 140 , 292 P. 73 (1930); Johnson v. Bearden Plumbing & Heating Co., 180 Okl. 586 , 71 P.2d 715 (1937). See, also, Goslen v. Waddell Inv. Co., 145 Okl. 269 , 292 P. 362 (1930).