Adkins v. Wright
| Decision Date | 04 April 1913 |
| Citation | 131 P. 686,37 Okla. 771,1913 OK 208 |
| Parties | ADKINS v. WRIGHT ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
A woman called as a witness to testify against a defendant, who was formerly her husband, cannot give evidence concerning any communications made by one to the other while the marriage relation existed.
The statutes of this state (section 5842, Comp. Laws 1909), as well as the common law, prevent one spouse from giving testimony, falling under the head of privileged communications, against the other either during or after the marital relation has ceased; but neither the statute nor the common law prevents one spouse, after the marriage relation has been terminated, from testifying against the other regarding independent facts within the knowledge of the witness, and not coming within the privilege.
The mere possession of lands, without any adverse claim being made to them, for a period less than is provided by the statute of limitations, does not prove title; but direct proof of a written conveyance which has been lost or destroyed may be aided by the presumption flowing from long peaceable possession and repeated or continuous acts of ownership.
Where the execution and delivery of a written conveyance in a chain of title has been proved, together with the fact of its loss or destruction, relevant secondary evidence may be used in proof of the fact of its existence and contents.
Where there is a missing link in an otherwise perfect chain of title, and there is any competent proof of the execution delivery, and subsequent loss of a deed which would supply the missing link, such evidence, together with any evidence of long peaceable possession without adverse claim, the payment of taxes, the failure of the other claimant to assert his rights with knowledge of such possession, etc., should be submitted to the jury on the question of whether such alleged lost deed had in fact ever existed.
Commissioners' Opinion, Division No. 2. Error from District Court, Jackson County; J. T. Johnson, Judge.
Action by J. G. Adkins against W. B. Wright and another. The court sustained a demurrer to plaintiff's evidence, and he brings error. Reversed and remanded for new trial.
Tisinger Clay, Robinson & Hamilton, of Mangum, for plaintiff in error.
A. R Garrett, of Granite, for defendants in error.
This suit was filed in the district court of Jackson county May 2, 1910, by J. D. Adkins, plaintiff in error, as plaintiff below, against the defendants in error, T. V. Turner and W. B. Wright. The suit was brought by plaintiff in possession to remove clouds and quiet his title in and to lots 10 and 11 of block 8 Wright's addition to the town of Altus, formerly Leger, Okl. Defendant W. B. Wright disclaimed any interest in the lots. Defendant Turner denied plaintiff's title, and asserted title in himself under a quitclaim deed from his co-defendant Wright. The cause was tried to a jury, and at the conclusion of the evidence the court sustained a demurrer to the same in favor of the defendant Turner. Two questions are presented: (1) The action of the court in sustaining the demurrer to the evidence. (2) Refusal to admit certain evidence.
These lots are part of a quarter section of land patented by the United States government to the defendant W. B. Wright, who afterwards platted the same as an addition to the present town of Altus. Both parties here claim title under said patentee. Plaintiff shows a record title through a long line of conveyances, beginning with the deed from Emma W. Turner. The only fault in plaintiff's title as shown by the record is the absence of the deed from patentee Wright to Emma W. Turner. Plaintiff alleged in his petition that this deed had been executed and delivered, but that it had been lost. The court sustained the demurrer to the evidence, upon the theory that there was no proof that a deed had ever been executed by Wright to Mrs. Turner, and that same had been lost; and for that reason that plaintiff had failed to show title in himself to the lots. If there was no such proof, of course, the court should be sustained; if there was, however, any substantial proof of the execution and loss of this deed which constituted a missing link in an otherwise perfect title, which was strengthened by many years of peaceable possession, then in such event the action of the court cannot be sustained. We think there was sufficient proof on this point to have justified its submission to the jury.
Mrs Turner was at the time of the transfer by her of the title to these lots the wife of the defendant Turner. They were divorced some years before the trial of this case. These lots were conveyed by warranty deed executed by Mrs. Turner May 25, 1901, to the Orient Land & Townsite Company, since which time this company and the various grantees in the line of title have been in peaceful and exclusive possession of the lots and have paid the taxes thereon. It does not appear that the defendant Turner claimed or attempted to assert any adverse interest in the same for eight or nine years, and not until he procured a quitclaim deed from the patentee Wright which forms the basis for...
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