This case comes from the district court of Okmulgee county, the Honorable James H. Hays being judge. It is similar in some of its aspects to case No. 20298, the plaintiff being the same but the defendant being different, and the tax deed relied on in this case being somewhat similar to the tax deed relied on in the other case, but being made on a different sale and a different date, this being acknowledged on the 22nd of April, 1926, and filed in the office of county clerk on the 20th of August, 1926. The county deed, conveying the property to the plaintiff, conveyed a great many lots, and was acknowledged on the 21st of December, 1926, and filed for record on the 5th of January, 1927.
The suit was filed on the 3rd of January, 1928. It will be observed that the suit was filed about a year and five months after the tax deed was filed for record. The statute of limitations prescribes that, unless the action is brought within one year after the tax deed is filed, there can be no recovery.
An opinion has been rendered by the majority in this case, holding that the statute of limitations runs from the date of the recording of the deed made by the county commissioners to the plaintiff, instead of from the date of the recording of the tax deed. The statute of limitations does not so say, but is emphatic that the time begins to run from the date of the recording of the tax deed. Had this court undertaken to have reviewed the proposition of the statute of limitations not running while it was in the hands of the county, perhaps something possibly might have been found in the opinion justifying this date, though it would have been a very poor reason for so holding, as the decisions that are cited in the brief of the defendant in error in this case are examined.
Scarcely, however, does the plaintiff in error contend for what the court decides here. His contention is set out at page 9 of his brief, and he contends that the 15 year statute is the only applicable one, and that no limitations run against the county, complaining of the court's ruling below, because it so held. The contention is then *Page 234 made that the resale act is unconstitutional in that it lets the county have the proceeds instead of part going to the state. It goes further, and says that the treasurer's power to sell is dependent on valid levies, and that a sale certificate to the county was not a sale and no money was paid by the county for it, and winds up with the proposition that the county holds in trust for the state in its sovereign right to collect tax. Some reference is made to Callander v. Brickner,97 Okla. 37, 222 P. 531, and the deduction is made therefrom that the deed to the commissioners in the present case is the deed to the treasurer in that case.
By referring to the law of 1915, it appears that by an act approved February 24, 1915, Session Laws of 1915, chapter 47, the tax deed went to the county treasurer for the use and benefit of the county, and the title become invested in the county treasurer and his successors in office for the use and benefit of the county. There was a proviso that any time after the title became vested in the county treasurer, the county treasurer, with the approval of the county commissioners, could sell at private sale. It thus is seen that not even the plaintiff in error is contending for what is held by the court.
A review of the position of the defendant in error, as shown in his brief, shows that he attacked the tax deed as being void on its face, and cites Felt v. Schaub, 134 Okla. 193,272 P. 830, as proof of it. He contends that the only statute of limitation applicable is 9753, which, of course, refers to the recording of the tax deed, and has no reference whatever to the deed made by the commissioners to the buyer
The case of Clark v. Duncanson, 79 Okla. 180, 192 P. 806, and the case of Callender v. Brickner, supra, are cited. Also, the case of Michie v. Haas, 134 Okla. 57, 272 P. 883. That case clearly holds that the one-year statute applies, and that the time of the beginning of the statute is the recording of he tax deed. The case of Callander v. Brickner is cited in that case. It overruled a lot of cases, and announced that the purpose of the resale was to replace the property where it will again bear its governmental share of taxation.
The brief of the defendant in error discusses very thoroughly the question of the statute of limitations not running while it is held by the county, and cites a great many cases that are unnoticed in the decision of the majority, holding that such was not the case in Oklahoma or elsewhere. Cases from Arkansas and Texas are among the list.
It thus appears that the idea of the statute of limitations being started in a tax resale from the time of the giving by the board of county commissioners of a deed, does net comport either with the statute or with previous decisions of the court, or any contentions of the lawyers connected with the case. This court ignored the question of limitations running while in the hands of the county, and jumped the chasm intervening between the time of the recording of the tax deed prescribed in the statutes, and held that the period described in the statute started from the date of the private deed by the county to the purchaser. There does not seem to be any foundation for this position under the statute or former decisions, or even the contentions of the litigants, but it is an entirely new creation produced by a failure to follow the statute.
The lower court, under these conditions, should not be reversed, in my opinion, and I therefore dissent.