
    BOWEN v. THOMPSON et al.
    No. 16803
    Opinion Filed Oct. 12, 1926.
    1. Taxation — Tax Deed Void for (Failure to Give Notice.
    A tax deed issued to the holder of a certificate of purchase at a tax sale of real estate is void where the written notice, as provided by statute, is not served upon the owner of the land in the county where such sale took place, and upon one in possession where same is occupied.
    2. Champerty and Maintenance — Deed by One not ini' Possession not Void as to PerL 'son not! in Adverse Possession.
    Under section 2215, Comp. Stat. 1909, providing that a deed conveying real estate, executed by a grantor at the time when he was not in .possession of the conveyed premises, isi void as between the grantee and a person who was at the time of the conveyance in adverse posssession of the conveyed premises, such deed is not void where no one was in such .adverse possession, or the one in adverse possession does not question such deed.
    (Syllabus by Estes, C.)
    Commissioners’ Opinion, Division No. 2.
    Error from District Court, Jefferson County ; M. W. Pugh, Judge.
    Action by S. Russell Bowen against W. J. Thompson et al. to quiet title. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    (Green & Pruett, for plaintiff in error.
    Bowling & Farmer, Bridges & Vertrees, and Anderson & Anderson, for defendants in error.
   Opinion by

ESTES, C.

Parties appear in the same order as in the trial court. Plaintiff, Bowen, sued defendants to quiet title to a certain parcel of real estate, basing action upon a purported tax deed. The taxes for 1915, became delinquent and a certificate was issued in 1916] to one Welcome, who assigned same to one Keyser. In 1922 Key-ser applied for and procured a tax deed, and thereafter conveyed the real estate to the plaintiff, Bowen, Geo. W. James,a Choctaw Indian, was the allottee of the realty prior to October 10, 1908. On said date certain persons representing that said allottee was dead, and that they were his sole and only heirs, conveyed the real estate in controversy to' one Copeland, who thereafter mortgaged same to plaintiff, Bowen, who thereafter purchased the land at sheriff’s sale on foreclosure of his mortgage. These transactions occurred prior to' 1915 when said taxes became delinquent. -Said allottee had not departed this life, and on November 18, 1910, conveyed the parcel of land to defendant Thompson and one McConahey; the 'latter having died, defendant Alice McConahey succeeded in interest, as his sole devisee. The court found that said tax deed relied upon by plaintiff was invalid, and rendered judgment for defendants, from which plaintiff appeals.

1. The first error assigned is the holding such deed invalid. The statutes then provided that the holder of a certificate of purchase issued at tax sale, in order to be entitled to a tax deed, should cause a written notice signed by himself to be served upion the owner of the land and also upon the person in possession, if the same be occupied, reciting certain (required matters. This notice was served upon Bowen, but hot served upon Thompson and McConahey, or any one in possession. Manifestly, the sheriff’s deed on foreclosure, by which Bowen claimed title, was absolutely void, for that Copeland, the mortgagor, had no title whatever from said pretended heirs of the allottee. It is not contended that the deed dated November 18, 1910, from the allottee to defendants was invalid. It is alleged that the same was duly recorded, and stated in the brief, and not denied by plaintiff, that same was recorded prior to the time notice was 'given for obtaining the tax deed. It is well settled that the notice upon the owner required by said statute, is jurisdictional, and the failure to give the same renders the tax deed absolutely void. Dawson v. Anderson, 38 Okla. 167, 132 Pac. 666. Plaintiff also contends that one Brummett had been in possession of and occupied this land for more than 15 years. No notice was served upon him. Several grounds are argued why this tax deed is void, but the foregoing is sufficient.

2. It is next contended that the judgment was erroneous for that the deed from the allottee to the defendants was void under the champerty statute. In Miller v. Fryer, 35 Okla. 145, 128 Pac. 713, this court held that by reason of such champerty statute, a deed conveying real estate, executed by a grantor at a time when 'he was not in possession of the conveyed premises, is void as between the grantee and a person who was, at the time of the conveyance, in adverse possession of the conveyed premises. This assignment of'error is wholly without merit for the reason that there is no evidence that plaintiff, Bowen, or his grantors were in adverse possession of the real estate, on or prior to the date of said deed. No one so in adverse possession is here so contending. Duncan v. Kelley, 103 Okla. 74, 229 Pac. 425.

3. The third and last assignment is that the judgment is erroneous because Bowen and his grantors had been in possession of the land since 1908, in such manner as to acquire title by prescription under the 15 years’ statute of limitations. The evidence on behalf of Bowen is a conclusion of one witness that he had been in possession for said time. However, one Brummett testified on behalf of defendants, and his testimony is uncomtradicted, that be had resided in the vicinity of this parcel of land for 40 years; that the same'had at ail times been a part of a large pasture used by him; that he did not know who' claimed this parcel of land from about 1908 to about 1917, at which time he rented it through an agent from some one in New York, whose name he did not remember, he having used the same and not having claimed to own it. The judgment in this behalf is not clearly against the weight of the evidence.

Note. — See under (1) 37 Cyc. pp. 1423, 1425. (2) 11 C. J. p. 257, §47; p. 278, §123.

Let the judgment be affirmed.

By the Court: It is so ordered.  