Ammann v. Foster

• Decision Date: 19 January 1937
• Docket Number: 23443.
• Citation: 64 P.2d 653,179 Okla. 44,1937 OK 4
• Parties: AMMANN et al. v. FOSTER et al.
• Court: Oklahoma Supreme Court

64 P.2d 653

179 Okla. 44, 1937 OK 4

AMMANN et al. v. FOSTER et al.

No. 23443.

Supreme Court of Oklahoma

January 19, 1937

Syllabus by the Court.

The rule that one tenant in common will not be permitted to acquire title to the common property solely for his own benefit, or to the exclusion of his cotenant, does not apply to a sale of real property sold at a bona fide sheriff's sale under a judgment foreclosing a mortgage on said property, where the consideration paid was adequate and fair and where it does not appear that the purchaser was guilty of fraud, deceit, or collusion, and where such tenant seeking to participate has been guilty of laches.

Appeal from District Court, Oklahoma County; Sam Hooker, Judge.

Action by Urgie Ammann, née Smith, and another, against H. V. Foster and others. From a judgment dismissing their cause plaintiffs appeal.

Affirmed.

J. B Dudley and Magee & Sturdevant, all of Oklahoma City, for plaintiffs in error.

Miley Hoffman, Williams & France, Welty & La Fon, Allen & Jarman Rittenhouse, Lee, Webster & Rittenhouse, W. N. Stokes, Geo. W. Grant, Cheek & McRill, Blakeney & Ambrister, and John F. Martin, all of Oklahoma City, and Hagan & Gavin and Ray S. Fellows, all of Tulsa, for defendants in error.

OSBORN Chief Justice.

This action was instituted in the district court of Oklahoma county by Urgie Ammann, née Smith, and Glen Smith, hereinafter referred to as plaintiffs, wherein it was sought to recover possession of and quiet title to an undivided two-thirds' interest in certain real property located in Oklahoma county. H. V. Foster and numerous other persons, firms, and corporations who owned various interests in and to the lands involved were made parties defendant. The trial court sustained demurrers to the amended petition. Plaintiffs elected to stand on their pleadings, the cause was dismissed, and plaintiffs have appealed.

The record shows that John D. Smith, the father of plaintiffs, was the owner of the land in controversy on May 1, 1899, on which date he, joined by his wife, Ethel Smith, executed a mortgage thereon to one J. K. Mitchell, to secure payment of the sum of $900. Said parties at that time occupied the premises as their homestead. On January 20, 1900, John D. Smith died intestate, leaving as his heirs his widow, Ethel Smith, and his two children, the plaintiffs herein, both of whom were then minors, Urgie Ammann having been born April 21, 1895, and Glen Smith on January 28, 1898. On May 13, 1901, Ethel Smith, the mother of plaintiffs, conveyed her one-third interest by warranty deed to one Wyatt H. Botts for the sum of $1,000, and on or about that date removed from the premises which she and her family had theretofore occupied as a homestead and delivered possession thereof to Botts (the predecessor in title of defendants). On May 31, 1901, Mitchell instituted an action to foreclose his mortgage. Plaintiffs were then of the ages of 6 and 3 years, respectively, and were made parties defendant. The sheriff's return of summons shows that said minors were personally served with summons, but that no service was made on F. P. Johnson, who was then their general guardian. A judgment of foreclosure was entered on September 26, 1901, and on May 26, 1902, pursuant to order of sale duly issued, the property was offered at sheriff's sale and was bid in by Wyatt H. Botts. The sheriff's deed contains the following recital: "And whereas, on the said 26th day of May, A.D. 1902, at 2:00 o'clock p. m. of that day, at the court house door aforesaid, the said sheriff did offer for sale and sell the lands and tenements hereinafter described to Wyatt H. Potts, of said Oklahoma County, at and for the cash price and sums as follows, viz: The sum of two thousand dollars for the undivided two-thirds interest of Glen Smith and Urgie Smith, in addition to the sum of money heretofore paid defendant, Ethel Smith, for her one-third interest, his being the highest and best bid made therefor."

The sheriff's deed is dated June 25, 1902 and was recorded June 26, 1902. The journal entry of judgment entered in the foreclosure action recites that the minors appeared at the trial of said action by their guardian ad litem, Selwyn Douglas.

Various other subsequent proceedings relating to the property in controversy are shown in the record and discussed in the briefs, but for the purposes of this opinion it will not be necessary to outline said proceedings.

This action was commenced on January 16, 1930, 27 1/2 years after the sheriff's deed was recorded and approximately 16 years after Urgie Ammann became of age and 11 years after Glen Smith became of age.

Plaintiffs contend that the judgment of foreclosure above referred to is void on its face, for the reason that the record shows that no lawful service was had upon plaintiffs. It is not necessary to determine the question so presented. The principal defense is that plaintiffs' action is barred by the statute of limitations and the recording of the sheriff's deed is sufficient to set the statute of limitations in operation. Group v. Jones, 44 Okl. 344, 144 P. 377; Stolfa v. Gaines, 140 Okl. 292, 283 P. 563.

It is urged by plaintiffs that the trial court erred in sustaining demurrers to their petitions on the ground that the action was barred by the statutes of limitation. Their theory is stated in the brief as follows:

"We realize that if the defendants have held plaintiff's two-thirds interest in this property exclusively under a claim of adverse ownership for any period of time, which by the code, bars the plaintiffs' right of recovery, whether that period be one, two, three, five or fifteen years, then the defendants have title by prescription. It is our contention that under the circumstances alleged in our petition, plaintiffs and defendants were at all times cotenants of said land; that the possession of one was that of all and referred to the common title; that defendants' possession could not become adverse until they did some act repudiating plaintiffs' title and brought notice home to plaintiffs of such adverse claim; that since a minor cannot take notice of adverse claims to real property during their minority, defendants' possession could not become adverse until after the plaintiffs attained majority, and in this particular instance, after the youngest plaintiff attained his majority.

By the process of elimination, we find the only statute of limitations applicable to be section 183, subd. 4, C.O.S.1921 [O.S. § 99, subd. 4] barring an action for the recovery of real property fifteen years after the possession of defendants becomes adverse. The material question then will become 'when did the defendants' possession become adverse?' We submit that under the allegations of this amended petition, defendants' possession could not become adverse until after the youngest plaintiff, Glen Smith, attained his majority, to-wit: January 28, 1919. Then and then only was it possible for the fifteen-year period of adverse possession to commence. Furthermore, after Glen Smith attained his majority, defendants must have committed some act constituting an ouster of their co-tenants in order to start the adverse possession upon which to base a title by prescription."

It therefore appears that it is immaterial which particular provision of the statutes of limitation is applicable. Plaintiffs' sole right to recovery is predicated upon the proposition that from the time of the execution and delivery of the deed from their mother to Wyatt H. Botts they were tenants in common with him; that when he purchased the property at the foreclosure sale the purchase inured to the benefit of all the tenants in common and that his possession was their possession, and as a matter of law they were not ousted from possession until Botts, their cotenant in possession, committed an act of ouster against them.

The question of ouster of an infant cotenant was treated in a supplemental opinion prepared by Mr. Justice Gibson in the recent case of Wirick v. Nance (Okl.Sup.) 62 P.2d 997 (not yet reported [in State report]), wherein it was held that the statute of limitations does not begin to run in favor of one cotenant in possession against another cotenant until actual ouster by the former, or some other act or acts on his part amounting to a total denial of the rights of the latter, and until notice or knowledge of the act relied on as an ouster is brought home to him; that the notice or knowledge required must be either actual, or the act or acts relied upon as an ouster must be of such open and notorious character as to be notice of themselves or reasonably sufficient to put the disseized cotenant on inquiry, which, if diligently pursued, will lead to notice or knowledge of the fact; that the rule applies alike to minors and adult disseized cotenants; that the same acts and declarations which constitute an ouster apply to an infant as well as to an adult, whether the notice of ouster be actual or presumptive; that a cause of action immediately accrues to an infant upon being denied possession of his realty; that when the cause accrues the statute commences to run and by legislative grace (section 100, O.S.1931) minors are allowed 2 years after majority to assert their rights by proper action. It was concluded in that case that the minor could have maintained her action for possession at any time within the 15 years from the date the statute commenced to run, or, if the 15 years had run prior to the date of the majority of said minor, she was vested by legislative grace with an additional 2 years after majority in which to assert her rights.

It appears that there is a great divergence of judicial opinion regarding the effect of a purchase by a tenant in...