Ashton v. Noble
| Decision Date | 11 May 1915 |
| Docket Number | 4231. |
| Parties | ASHTON v. NOBLE ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The right of action of a leaseholder to sue and recover for the use and occupancy of lands, held unlawfully by another, is assignable.
The statutes of the state, intended to prevent champerty and maintenance, and the state adjudications, rendering inoperative a deed by a grantor out of possession, as against the adverse holder of the land, are inapplicable inoperative, and ineffective, as against a sale of and a deed to restricted Indian lands made in conformity to the laws of the United States, by and through its chosen governmental agencies.
Commissioners' Opinion, Division No. 1. Error from District Court, Ottawa County; Preston S. Davis, Judge.
Action by R. W. Ashton against Charles F. Noble and others. Judgment for defendants, and plaintiff brings error. Reversed with directions.
A. C Wallace, of Miami, and Paul A. Ewert, of Joplin, Mo., for plaintiff in error.
W. H Kornegay, of Vinita, for defendants in error.
This appeal is predicated upon alleged errors of the trial court in sustaining a demurrer to the petition of plaintiff; and for a proper determination of this cause, it is necessary to consider and pass upon the two following propositions: (1) Is the right to sue and recover for the use and occupancy of lands, held unlawfully assignable? (2) Do the statutes and decisions of this court relating to champerty and maintenance render inoperative, against the adverse holder, a deed to a restricted Indian allotment, made in conformity to the laws of the United States and the rules and regulations of the Department of the Interior, and with the approval of the Secretary thereof?
It is alleged in the petition that one Barnhart became, on May 4 1908, the owner and holder of a valid agricultural lease on certain lands (described), said lease running for a period of three years; that on the 15th day of February, 1911, and during the term of said lease, it was assigned to plaintiff in error Ashton, together with a specific assignment in writing of the right to sue and recover from the defendants in error for the use and occupancy of said lands, which had been by them unlawfully occupied since May 4, 1908. It also averred that in the meantime, and prior to the assignment of said lease, that Ashton had become the owner in fee of the lands involved, through a purchase of same made in conformity to the laws of the United States and under rules and regulations prescribed by the Department of Interior, and that the deed thereto had been approved by the Secretary of the Interior, who was, under the law, clothed with such power.
Under the petition, plaintiff sought to recover for the use and occupancy of the lands as an assignee of Barnhart's right so to do for the period embraced between May 4, 1908, and February 15, 1911; and in his own right, as owner of the fee from the last named date, to March 10, 1911.
If the right of action of Barnhart was assignable, plaintiff could recover for the first named period. If it was not assignable, he could not recover for that period, but could recover for the last named period, unless prevented from doing so by the fact that his approved deed appears from the pleadings to have been taken while the lands were unlawfully and adversely held by the defendants. We think this statement clearly brings into view the two legal propositions involved, and we shall treat them in the order named in the beginning of this statement.
Was the chose in action assignable? Section 7349, Comp. Laws 1909 (section 6740, Rev. Laws 1910), provides:
Section 5943, Comp. Laws 1909 (section 5279, Rev. Laws 1910), provides:
"In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to the person, or to real or personal estate, * * * shall also survive. * * *"
It has been very generally held throughout the United States that the true test of whether or not a cause of action is assignable depends upon whether or not, upon the death of the owner, it passes to and becomes enforceable by his personal representatives. In other words, whether or not, under the law of the particular state, it is such a cause of action as will survive; but our attention is called to another section of the statute, being section 5558, Comp. Laws 1909 (section 4681, Rev. Laws 1910), which is as follows:
"Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section 5560, but this section shall not be deemed to authorize the assignment of a thing in action, not arising out of contract."
These statutes came under review by this court in the case of Kansas City, M. & O. Ry. Co. v. Shutt, 24 Okl. 96, 104 P. 51, 138 Am. St. Rep. 870, 20 Ann. Cas. 255. In that case, the court was of the opinion that this last named section of the statute had the effect, when construed in connection with the other sections, supra, of modifying, to an extent, the general rule stated above as to the test regarding the assignability of a cause of action, and to such an extent that one would not be assignable, if it were based upon a tort, pure and simple. In the body of the opinion in the case last cited, the following analysis of the statute is made:
"We take it that section 4163, Wilson's Rev. & Ann. St. (section 6740, Rev. Laws 1910), supra, in view of sections 4224 and 4609 Wilson's Rev. & Ann. St. (sections 4681, 5279, Rev. Laws 1910), supra, covers actions growing out of contracts, or arising out of violations of rights of property, where such violation partakes, not only of the nature of a tort, but also of an implied contract, being in the nature of assumpsit, as, for instance, the unlawful taking and conversion of money or of other personalty to one's use, as in the case of Stewart v. Balderston, 10 Kan. 131, which was an action based on a claim for money wrongfully taken and converted."
In that case, it is made to appear that although an action...
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