Billy v. Unknown Heirs of Gray

• Decision Date: 14 May 1912
• Docket Number: Case Number: 2318
• Citation: 130 P. 533,35 Okla. 430,1912 OK 325
• Parties: BILLY v. UNKNOWN HEIRS OF GRAY, Deceased, et al.
• Court: Oklahoma Supreme Court

1912 OK 325

130 P. 533

35 Okla. 430

BILLY v. UNKNOWN HEIRS OF GRAY, Deceased, et al.

Case Number: 2318

Supreme Court of Oklahoma

Decided: May 14, 1912

Syllabus

¶0 APPEAL AND ERROR--Necessary Parties--Dismissal. Where an action was brought by a person claiming to be the sole owner of a tract of land against several defendants to quiet title and to remove cloud therefrom, and a third person intervened, claiming also to be the sole owner of said land and praying for judgment quieting his title, and the judgment rendered decrees plaintiff to be the owner of the title to an undivided half interest in said land and quiets same as against the claims and demands of the defendants named in plaintiff's petition, and decrees the interpleader to be the owner of the title to the other undivided half interest in said land and quiets his title as against the claims and demands of defendants, in the prosecution of an appeal from said judgment by plaintiff, the defendants are necessary parties thereto.

Error from District Court, Coal County; A. T. West, Judge.

Action by Lita Billy against the Unknown Heirs of D. T. Gray, deceased, and others; Benjamin Finley intervener. Judgment for plaintiff and intervener, and plaintiff brings error. Dismissed.

George A. Trice and H. E. Cullom, for plaintiff in error.

C. M. Threadgill and Fooshee & Brunson, for defendant in error, Benjamin Finley.

HAYES, J.

¶1 This action was originally instituted in the district court of Coal county by plaintiff in error, hereinafter called plaintiff, against the unknown heirs of D. T. Gray, deceased, and W. B. Chism and the Mortgage & Debenture Company, a corporation. Plaintiff alleges in her petition that she is the legal owner in fee simple of the lands described in her petition, and that said lands were patented to one Albert Billy, as his pro rata portion of the lands of the Chickasaw and Choctaw Nations; that the said Albert Billy died intestate, seized of said real estate before statehood, and left plaintiff as his only surviving heir at law. She alleges that defendants claim title and interest in and to said real estate adverse to her rights; that the unknown heirs of D. T. Gray claim title under and by virtue of two deeds, conveying said lands to D. T. Gray; that one of said deeds was executed by Benjamin Finley and the other by one Felin Bean, both of which have been duly recorded. She alleges that defendant Chism holds a pretended deed to said lands, executed by one R. N. Cummings and wife; and that defendant Mortgage & Debenture Company holds a pretended mortgage, purported to have been executed by R. N. Cummings and wife, all of which instruments have been recorded. She alleges the same are wholly void and without effect, and that they constitute a cloud upon her title, and she prays for a cancellation of said instruments, and that the cloud upon her title be removed. All of the defendants were summoned as required by law.

¶2 Thereafter, Benjamin Finley, after obtaining leave of court to intervene and be made a party defendant, filed an answer and cross-petition by which he alleges that he is the sole surviving heir of the said Albert Billy, the allottee of the lands in controversy, and alleges that the deed executed by him to D. T. Gray was executed during his minority, and was procured by fraud. He thereupon prays that he have judgment for said lands, and that the conveyances mentioned in plaintiff's petition be canceled as a cloud upon his title. The defendants named in plaintiff's petition failed to answer and made default.

¶3 Issues having been joined upon plaintiff's petition and the interplea of Benjamin Finley, now defendant in error, the cause was tried to a jury. The verdict of the jury found facts upon which the court determined that both plaintiff and defendant in error are heirs of the deceased allottee; and that they each inherited from said allottee an undivided half interest in the lands in controversy, and the court rendered judgment in favor of plaintiff for an undivided half interest in the lands and quieting her title therein as against the defendants named in her petition, and defendant in error; and by the same judgment decreed that defendant in error is the owner of an undivided half interest in said land, and quieted his title as against defendant and plaintiff. From that judgment plaintiff alone prosecutes this proceeding in error against Benjamin Finley alone as defendant in error. Defendant in error has moved that the cause be dismissed, because defendants in the trial court have not been made parties to this proceeding....