Baker v. Little
| Decision Date | 04 March 1947 |
| Docket Number | 32268. |
| Parties | BAKER v. LITTLE et ux. |
| Court | Oklahoma Supreme Court |
Appeal from County Court, Osage County; L. F. Roberts, Judge.
Action of forcible entry and detainer by Rowe Little and his wife against J. W. Baker. Judgment for the plaintiffs, and the defendant appeals.
Judgment reversed and cause remanded with directions to dismiss the action.
Syllabus by the Court.
Action in forcible entry and detention are barred by the statute of limitations unless commenced within two years of the accrual thereof.
H. P White, of Pawhuska, for plaintiff in error.
W Frank Nichols, of Barnsdall, for defendants in error.
Plaintiffs (Rowe Little and Luenda Little) brought this action in the justice court, July 10, 1944, against J. W. Baker, alleging ownership and right to immediate possession of N.W. 1/4 of N.W. 1/4 of Section 28, Township 24, Range 11, in Osage County. The complaint alleged lawful entry by defendant, but unlawful detention of the premises; that defendant was in possession July 15, 1939, when plaintiffs purchased the property; that defendant had paid taxes thereon although plaintiffs requested him not to do so; that plaintiffs had requested possession but defendant refused to vacate; notice to quit had been served and prayed restitution of the premises.
Defendant filed a demurrer which was overruled, and then filed his answer. The matter was tried to a jury and a verdict finding defendant guilty was returned. The judgment was for plaintiff to have restitution of the premises, and plaintiff to reimburse defendant in amount of $50 for taxes paid on the property.
From this verdict and judgment defendant appealed to the county court, and there presented the case upon written stipulation of the parties. This stipulation discloses the following facts. The land in question was originally allotted to one Leahy. He failed to pay taxes thereon and November 2, 1936 the property was sold to Osage County for 1935 taxes. June 5 1939, plaintiff procured an assignment of the tax sales certificate and July 7, 1939, commenced publication of notice of application for a tax deed.
March 9, 1933, Leahy gave one Bass a written lease on the premises for a term of five years, and in December, 1936, Bass assigned this lease to defendant, who went into possession of the property. Shortly before expiration of plaintiffs' publication notice defendant learned of plaintiffs' intention to apply for a tax deed, and August 4, 1939, defendant redeemed the property by paying taxes for 1935, 1936 and 1937, plus cost of publication. Thereafter defendant paid taxes for years 1940-1943, inclusive. On August 14, 1939, the county treasurer refunded plaintiffs the amount paid for the tax certificate, plus the publication fee. About July 15, 1939, Leahy executed a quit claim deed to plaintiffs, covering this property.
For reversal the defendant contends the statute of limitations had run against a forcible entry and detainer action. The plaintiff says the statute of limitations is a special plea that must be plead which defendant failed to do.
Under our practice, it is established that a petition or complaint which shows on its face that the cause of action is barred by the applicable statute of limitations, is properly attacked by a general demurrer. Sartin v. Moran-Buckner Co. et al, 189 Okl. 178, 114 P.2d 938; Nordman v. School Dist. No. 43 of Choctaw County, 190 Okl. 135, 121 P.2d 290. And, the question of limitation is properly raised under a general demurrer without specific reference to the statute. Weatherman v. Victor Gasoline Co., 191 Okl. 423, 130 P.2d 527. Without further discussion or review of our decisions, we conclude the defendant's demurrer was sufficient to present to the trial court the question of the statute of limitations.
In Warren v. Stansbury, 195 Okl. 552, 159 P.2d 741, we held:
'Actions in forcible entry and detention are barred by the statute of limitations unless commenced within two years after the accrual thereof.'
Under the stipulation of facts in the matter before us, it is clear that plaintiffs could first have commenced their action July 15, 1939. The bill of particulars alleged defendant had wrongfully detained the property since July 15, 1939, the date plaintiffs allegedly purchased the property. The stipulation...
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