Martin v. Bodovitz , 194 Okla. 614 ( 1944 )

This action was commenced in the district court of Carter county by Felix A. Bodovitz against Rupert E. Martin and the board of county commissioners of Carter county, Okla., and Roy Holliman, county treasurer of Carter county, Okla., to cancel a resale tax deed and to quiet title to 40 acres of land. The parties will be referred to herein by their trial court designation.

The plaintiff alleged that he was the owner and in possession of the N.W. 1/4 of the S.W. 1/4 of section 32, township 5 south, range 2 east, containing 40 acres more or less; that the defendant Martin claimed some right, title, or interest in and to said described property under and by virtue of a resale tax deed issued to him by the defendant county treasurer on the 19th day of May, 1941; that said resale tax deed is void for the reason that, through his agent, he had tendered to the county treasurer a sum of money sufficient to pay the amount of taxes necessary to be paid at the time in order to take said property out of the resale and to pay the taxes up to date; that the sum so tendered and paid was the amount which said county treasurer advised him, through his agent, was sufficient to pay all of said taxes; that he paid said sum of money in the belief that it was sufficient to pay the taxes on all of his land, including the land involved herein; that through inadvertence and mistake the defendant county treasurer failed to include the 40 acres involved in this action in the tax receipts; that the county treasurer advised him through his agent that such receipts covered all the land owned by the plaintiff and that he relied upon such statement. He tendered into court the amount of money necessary to pay the taxes on the land involved and to redeem same from the tax sale. He prayed that the court determine the amount of money necessary to redeem said land from the tax sale; that he be permitted to redeem his land; that the deed to the defendant Martin be canceled as a cloud upon his title, and his title be quieted.

As a second cause of action he alleged that the defendant Martin bid said land in for a sum greater than the taxes due, and that the court should permit him to redeem the land for the amount of the taxes, penalties, and interest due; that the court should adjust the equities between the plaintiff and the defendants, Martin, Carter county and the county treasurer.

In his answer the defendant Martin alleged that he claimed title to said land by virtue of the resale tax deed; that by reason thereof he was vested with a paramount title superior to any right, title, or interest in and to said land which the plaintiff might have had prior to the execution of said resale tax deed; that he was entitled to have his title quieted.

The answer of the board of county commissioners and the county treasurer was in the nature of a general denial.

J.A. Bodovitz, in behalf of the plaintiff, testified that he was the father of the plaintiff; that he took care of various tracts of land located in Carter county, some of which were owned by himself, some by the plaintiff, and some by his other son, V.J. Bodovitz; that between them they owned 20 to 30 tracts of land; that the plaintiff was the owner of the 40 acres involved in this action; that he had obtained title thereto in 1936; however, the deed was not recorded until about the time this action was filed; that he had listed said 40 acres for taxes; that during the month of April, 1941, he took his land record book, containing the description of each tract, including this 40-acre tract, to the county treasurer, who transcribed same by typewriter; that the county treasurer advised him he would write up the tax receipts and advise him the amount due; that the next day the county treasurer advised him by letter that the tax receipts were ready, and also gave him the amount necessary to be paid; that he went to the county treasurer's office, paid the amount requested, and picked up the tax receipts; that he had been advised by his attorney that the 40 acres involved herein was being advertised for resale; that on this account he particularly inquired of the treasurer whether this 40 acres was advertised for resale, and the treasurer assured him "that was a mistake, that was lake property"; that he did not check the tax receipts delivered to him by the treasurer because he was advised by the treasurer that said treasurer had delivered to him receipts for all of the property which was described in the book and list made, including the 40 acres in question; that he did not undertake an independent investigation of the tax rolls himself to see whether the treasurer had omitted to calculate the taxes due on any property he had described to the county treasurer; and that he relied wholly upon the county treasurer to correctly perform his duties with respect to the collection of taxes due on the property he described to the county treasurer, including the 40 acres. He testified that he gave the treasurer a check to cover the taxes on all of the land.

The county treasurer testified, and in some respects corroborated the testimony of Bodovitz; in other respects he was uncertain and did not have the clear recollection of many of the details that Mr. Bodovitz had, but in no respect did he contradict Mr. Bodovitz. Since this was simply one of many tax payments he handled in the routine of his office, it easily can be seen why his evidence would be as just characterized, and his attitude was fair to all concerned.

The trial resulted in a judgment in favor of the plaintiff. The court ordered that the defendant Martin be reimbursed in the sum of $250; that the plaintiff pay the said Martin the sum of $79.60, being the amount of taxes, penalties, and costs; that the county treasurer refund to the said Martin the sum of $170.40, being the excess bid by Martin for said land above the taxes due.

The sole contention made here by the defendant is "that there was a total failure of proof of the allegations contained in plaintiff's petition."

Plaintiff contends that the findings and judgment of a trial court in an action of equitable cognizance should not be overturned unless clearly against the weight of the evidence. The evidence, he says, amply supports the instant judgment and promotes justice.

We have held that where a taxpayer tenders to the county treasurer sufficient funds with which to redeem his land from all tax sales and informs such officer that he desires to redeem a particular tract of land from a tax sale, the taxpayer has done all the law requires of him in paying his taxes. If, under such circumstances, some or all of the taxes due are not paid by reason of the mistake or carelessness of the county treasurer, or his deputy, in calculating the taxes due, the taxpayer is entitled in an action brought for that purpose to have a tax deed set aside, if his evidence clearly shows that the taxes due, or any part thereof, were not paid by reason solely of the mistake, omission, negligence, or fraud of the county treasurer or his deputy. See Grimes v. Carter,185 Okla. 469, 94 P.2d 544. See, also, Stamper v. Schwartz,191 Okla. 308, 129 P.2d 587, Headley v. Hall, 191 Okla. 352,129 P.2d 1018, and the cases cited therein.

We are of the opinion that the evidence introduced by the plaintiff in this case is clear and adequate to sustain his position under the rule announced in the above cases. As stated above, the main contention of the plaintiffs in error is that the evidence is insufficient when viewed in the light of the rule by which judgments in equitable actions are viewed on appeal. Under this rule we are not authorized to reverse a judgment rendered in an equitable action unless we can say that such judgment is clearly against the weight of the evidence. We cannot say that of this judgment. Therefore, the judgment of the trial court is affirmed.

CORN, C.J., GIBSON, V.C.J., and OSBORN, HURST, and DAVISON, JJ., concur. ARNOLD, J., specially concurring.