Kerr v. Small

Taxation ? Tax Deeds ? Setting Aside as Void ? Failure to Serve Notice of Application for Deed ? Waiver of Defect ? What Does not Constitute ? Curative Statutes ? When Legislature Without Power to Enact. Tax Deeds ? Setting Aside for Failure to Serve Notice of Application for Deed. 1. Where, in an action to set aside a tax deed to a 4/5 ths interest to city property held by the county under a certificate of tax sale and sold by it to defendant at public auction, the record showed that no notice of application for a tax deed by the county had been served upon the owner and occupant as required by section 2209, Revised Codes, there was no jurisdiction upon which to base issuance of the deed; hence the deed issued was void and the court erred in refusing to set it aside. Statutes ? When Legislature may Enact Curative Statutes. 2. The legislature may, by a curative or validating statute, cure any defect as to the requirements or steps in a proceeding, such as the issuance of a tax deed, which it might have made immaterial by a prior law on the subject. Tax Deeds ? Failure of Applicant to Serve Notice of Application ? Curative Statutes Held Inapplicable. 3. Since the legislature could not in violation of the due process of law clause of the Constitution have done away with the necessity of giving notice of an application for tax deed prescribed by section 2209, Revised Codes, contention, in an action to set aside such a deed on the ground that notice had not been given, that failure to give notice was cured by Chapters 94 and 105, Laws of 1939, held without merit. Same ? Waiver of Defect in Proceedings by Act of Agent in Bidding in Property ? Reason Why Defense not Available. 4. Where a tax deed was invalid for failure to give the owner the statutory notice of application for the deed (see above paragraphs), such owner by being represented at the countys public auction sale of the property by an agent who bid it in, could not be held to have waived his right to question the validity of the tax deed held by the county for failure of notice, nor acquiesced in the taking of his property within the meaning of section 8742, Revised Codes, declaring that he who consents to an act is not wronged by it, the owner then being possessed of no rights which he could waive by bidding on the property. - Page 491 Same ? Absence of Notice of Application for Deed ? Knowledge in Plaintiff of Proceedings no Bar to Suit. 5. The fact (not shown by the record) that plaintiff seeking cancellation of a tax deed to his property on the ground of failure to serve notice of application for deed on him, may have had actual knowledge of the proceedings incident to the procurement of the deed could not bar him from seeking relief, the notice and not his knowledge being controlling.