This action was commenced in the district court of Okmulgee county by Walter W. Morton, plaintiff in error herein, against C.W. Wilson, defendant in error herein, for possession and to quiet title to the real estate described in the petition. The parties will be referred to as they appeared in the trial court.
Plaintiff alleged that he was the owner of and entitled to possession of the property; that he acquired the same by reason of tax proceedings; and attached to his petition as exhibits, resale tax deed from the county treasurer to chairman of board of county commissioners; also deed from chairman of board of county commissioners to plaintiff; and further alleged in second cause of action that defendant was claiming some right, title, or interest in the property.
Demurrer of defendant on the grounds petition did not contain facts sufficient to constitute cause of action, and if plaintiff had any right of action, same was barred by statutes of limitations. Which demurrer was sustained, and plaintiff thereafter filed amended petition, which was in the nature of an amendment to the original petition and made his original petition a part of his amended petition, and alleged in his amendment that he secured possession of said property from the occupant of said property, and thereafter defendant took possession by placing another occupant in possession and plaintiff delayed action because of negotiations for settlement. Prayed for judgment according to prayer of his petition.
Defendant filed general demurrer to amended petition, which was sustained, and plaintiff elected to stand upon his amended petition. Defendant moved to dismiss petition and amended petition, which was sustained by the court. Plaintiff brings the cause here for review by transcript.
The resale tax deed from the county treasurer to the chairman of the board of county commissioners was recorded on the 19th day of July, 1924. The county deed from the chairman of the board of county commissioners to plaintiff in error, Walter W. Morton, was executed on the 21st day of December, 1926, and recorded on the 5th day of January, 1927. The petition in this cause was filed January 3, 1928.
Section 9745, C. O. S. 1921, as amended by chapter 158, sec. 5, Sess. Laws 1923, reads, in part, as follows:
"* * * In case no bidder offers or bids the amount due upon any tract of real estate other than the lots located in any city or town, as above provided and offered for sale, the county treasurer shall bid off the same in the name of the county for the amount of taxes, penalties, interest and cost due thereon and shall issue a deed therefor in the name of the chairman of the board of county commissioners, * * * provided, that in no event shall the county be liable to the state or any taxing district thereof for any part of the amount for which any property may be sold. Any property acquired by the county under the provisions of this section may be sold by the treasurer at such price as may after notice by publication be approved by the board of county commissioners.* * *"
Section 9746, C. O. S. 1921, as amended by chapter 158, sec. 6, Sess. Laws 1923, provides in part:
"* * * And twelve (12) months after said deed shall have been filed for record in the county clerk's office, no action shall be commenced to void or set aside said deed, except as to infants, idiots, and insane persons or other persons under legal disability. * * *"
Section 9753, C. O. S. 1921, provides:
"No action shall be commenced by the holder of the tax deed or the former owner or owners of land by any person claiming under him or them to recover possession of the land which has been sold and conveyed by deed for nonpayment of taxes, or to avoid *Page 179 such deed, unless such action shall be commenced within one year after the recording of such deed; and in case action to avoid the deed, not until all taxes, interest and penalties, costs and expenses shall be paid or tendered by the party commencing such action."
In the case at bar we hold that the statutes of limitations commenced to run on the recording of the deed from the chairman of the board of county commissioners to the plaintiff in error herein, which was on the 5th day of January, 1927, and that the suit, being filed on the 3rd day of January, 1928, was within the period prescribed by law.
The amended petition filed herein after the statute of limitations had become complete did not state a new or different cause of action and did not change substantially the plaintiff's claim; the amended petition related back to the filing of the original petition and the action was not barred by the statute of limitations of one year, the original petition having been filed within the period prescribed by law.
In the case of United States Fire Ins. Co. v. Whitchurch,138 Okla. 182, 280 P. 834, 1st, syllabus paragraph, this court said:
"Where an original petition sought to recover on a fire insurance policy and the same was not good as against a general demurrer, but set out the names of the parties plaintiff and defendant, alleged the contract * * * attached a copy of said insurance policy to the petition and made it a part thereof * * * and after the statute of limitations has become complete an amended petition was filed which did not state a new or different cause of action and did not change substantially the plaintiff's claim, it is but the perfection of the imperfect statement of the cause of action originally stated. Held, the amended petition relates back to the filing of the original petition and the action was not barred by the statute of limitations of one year."
The general demurrer admitted the truth of all the facts well pleaded in the petition, and the petition must be liberally construed, and all such facts must be taken as true for the purpose of the demurrer, and plaintiff in error's action not being barred by the statute of limitations and the amended petition filed after the statute of limitations had become complete, for the reasons heretofore stated, the same related back to the date of the filing of the original petition, and the demurrer should have been overruled.
We, therefore, hold the trial court erred in sustaining the demurrer in this cause, and therefore the judgment of the trial court is reversed, and said cause remanded to the district court of Okmulgee county, with directions to overrule the demurrer.
LESTER, C. J., and RILEY, HEFNER, CULLISON, SWINDALL, ANDREWS, and McNEILL, JJ., concur.
KORNEGAY, J., dissents.