Acton v. Culbertson
| Decision Date | 11 March 1913 |
| Citation | 132 P. 812,38 Okla. 280,1913 OK 160 |
| Parties | ACTON ET AL. v. CULBERTSON ET AL. |
| Court | Oklahoma Supreme Court |
Rehearing Denied June 10, 1913.
Syllabus by the Court.
Where the petition states facts sufficient to constitute a cause of action and, aside from the general denial interposed, the answer admits facts sufficient to entitle plaintiff to recover, a judgment for plaintiff on the pleadings is proper.
Where the entry of defendant upon land is permissive and in privity with the title of the owner of the possessory right thereto and that of his grantee, in order to enable defendant to avail himself of the statute of limitations he must plead such specific acts of disloyalty to the title or acts of dominion giving adverse character to his possession as will preclude all want of knowledge thereof on the part of the owner. It is not sufficient that the defendant set forth his mere mental intention to hold adversely, or the conclusions of law that since a certain time his possession was "lawful, hostile under claim of right, actual exclusive, and continuous."
Answer and cross-petition examined, and held that the same fails to state facts sufficient to charge the town-site commission with having issued patent to the lot in controversy to the wrong person as a result of an erroneous view of the law or through gross and fraudulent mistake of facts.
Where the answer and cross-petition state facts sufficient to warrant a recovery of exemplary damages, they need not be claimed by name and as such, but may be recovered under a claim for damages generally, and where, in the ad damnum they are claimed generally and in a sum certain, and exemplary damages, as such, in a sum certain are also claimed, a motion to strike the latter item was properly sustained under Comp. Laws 1909, § 5659.
Error from District Court, Hughes County; John Carruthers, Judge.
Action by John J. Culbertson and others against Emily E. Acton and others. Judgment for plaintiffs, and defendant Acton brings error. Judgment of trial court affirmed, but cause reversed on cross-petition, with leave to amend.
L. S Fawcett, of Holdenville, for plaintiff in error.
Warren & Miller, of Holdenville, for defendants in error.
On July 15, 1909, J. J. Culbertson, one of the defendants in error in the district court of Hughes county, sued Emily E. Acton and others in ejectment for lots 13, 14, 15, and 16, in block 43, in the city of Holdenville. On August 7, 1909, said defendant answered and disclaimed any interest in the property, save in lot 13, to which she claimed an equitable title, admitted the legal title to be in plaintiff, and that she was in possession thereof, but denied that plaintiff was entitled to possession. By way of amended answer and counterclaim, defendant, after alleging that pending this suit said city had acquired from plaintiff some alleged interest in the lot which was junior to hers and asking that it be made a party to the suit and required to defend against her cross-action, further alleged, in substance, that in April, 1899, she took possession of the lot, which was in a common inclosure with lots 14, 15, and 16, subordinate to the title of D. N. Kelker, and that pursuant to an understanding with him she put up a small store building thereon and occupied the same as a millinery shop, rent free, until such time as he should demand possession thereof, when it was understood that she would surrender possession thereof to him; that she had never been requested so to do or pay any rent therefor; that about December 11, 1911, said Kelker executed to plaintiff, for value, a quitclaim deed to said lot, which was duly recorded June 3, 1901, and "from that time to the bringing of this suit the possession of said lot by defendant, as against said Kelker and this plaintiff, was lawful, hostile, under claim of right, actual, exclusive, and continuous." She further alleged that on February 1, 1902, defendant, still being in possession thereof, made application to the town-site commission that said lot be scheduled to her, she being then, as now, ready, able, and willing to comply with all the provisions of law in such case provided; that on February 3, 1902, plaintiff made like application that said lots 13, 14, 15, and 16 be scheduled to him; that his application was made with intent to deceive said department, and falsely alleged that plaintiff was then and rightfully in possession of and owned the right of occupancy in and to all four of said lots; that at that time plaintiff did not live in Holdenville nor was he at that time a resident in the Indian Territory, by reason of all of which she says plaintiff was not in legal possession of said lot and had no right to have the same scheduled to him, and hence the act of the Secretary of the Interior in subsequently scheduling and patenting said lots to him was done by error and mistake of law; that by failure of said Kelker or plaintiff to demand possession of said lot prior to said quitclaim to plaintiff they are estopped from claiming any interest in lot 13 adverse to her; that at the time she took possession of said lot said Kelker fraudulently represented to her that he held the legal possession of said lot, which she believed; that in truth he had no lawful right of possession thereto; that at the time he made like claim to a great many other resident and business lots in said town, a large number of which were allotted to him, and that under the law he could acquire but one residence and one business lot, and that, as the patent to plaintiff of said four lots was issued and delivered by reason of said false and fraudulent acts and representations of Kelker and plaintiff, the same was issued and delivered to plaintiff by mistake of law, of all of which she said she had no knowledge until in the year 1909. For further answer she substantially states that she has "been in the open, notorious, actual, continuous, and adverse possession of said lot under claim of right for more than seven years next preceding the filing of this suit," which was the statute of limitations of Arkansas in force in that jurisdiction at that time, and which she says began to run from February 1, 1902, the date she made application to have the lot scheduled to her. She further states that the respective claims made to said lot by plaintiff and defendant in their contest therefor before the Interior Department was, on his part, that he had acquired the right of possession thereto by bill of sale from Kelker, who had acquired the same from one Jacobs, a citizen of the Creek Nation; that defendant was a tenant of Kelker's, and that defendant was estopped to deny the title of her landlord; that these allegations were generally denied by her, and that she alleged her occupancy of the lot to be a temporary license, rent free, and subject to re-entry by said Kelker; that no demand or notice for possession had ever been made, and that since the passage of the Creek treaty, as amended in 1902, she had been in rightful possession thereof within the contemplation of said act and claimed the benefit thereof for the purpose of obtaining title to said lot; that she was ready to pay the government therefor and then and there tendered the amount necessary to obtain the same. She further alleged in said contest that plaintiff had taken the conveyance from Kelker with knowledge of her possession; that the same was not in good faith, and that the relation of landlord and tenant never existed between her and Kelker or between plaintiff and defendant to said lot; that said contest was decided in favor of plaintiff and against defendant and affirmed by the Commissioner of Indian Affairs and again affirmed by the Secretary of the Interior about December 6, 1905, and patent issued to him June 19, 1909; that the same was issued by error and mistake of law, and that the evidence in said contest disclosed no relation of landlord and tenant, as claimed; that if the same existed it was terminated by operation of law by the deed from Kelker to plaintiff and by the passage of the act aforesaid; and for the further reason that at the time of the making of said deed her possession of the lot, never having been questioned by Kelker or plaintiff, under said act rightfully vested in her a prior and superior equity and the right to acquire legal title thereto. She again pleaded a tender of the amount expended by plaintiff on said lot, with interest, and pray ed that he be declared to hold the legal title for her, and that on the payment by her of his legal disbursements he be required to execute a deed conveying the same to her. Later by amendment she alleged, with much aggravation, an ouster by plaintiff, and the city, his alleged grantee pendente lite, and prayed $1,000 actual and $940 punitive damages, filed the same as a "cross-bill," and later, as another amendment to her answer, filed all the papers involved in said contest over the lot, including the testimony taken on the hearing. After that part of the ad damnum in her "cross-bill" praying exemplary damages had been stricken, and much other unnecessary pleading and reply filed, there was judgment for plaintiff on the pleadings, and defendant brings the case here, alleging this action as error.
There is no merit in the contention that defendant was entitled to go to a jury on account of her general denial. This for the reason that the petition states facts sufficient to constitute a cause of action, and the answer, aside from the general denial, admits facts sufficient to entitle plaintiff to recover. Yoder v. Randol & Nix, 16 Okl. 308, 83 P. 537, 3 L. R. A. (N. S.) 576.
There is no merit in defendant's plea of the statute of limitation. The same, in effect, recites that she entered...
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