Bonebrake v. Flourney

• Decision Date: 19 June 1928
• Docket Number: Case Number: 18239
• Citation: 1928 OK 415,271 P. 658,133 Okla. 101
• Parties: BONEBRAKE et al. v. FLOURNEY et al.
• Court: Oklahoma Supreme Court

1928 OK 415

271 P. 658

133 Okla. 101

BONEBRAKE et al. v. FLOURNEY et al.

Case Number: 18239

Supreme Court of Oklahoma

Decided: June 19, 1928

Syllabus

¶0 1. Limitation of Actions--Adverse Possession for 15 Years under Void Tax Deed.

The title of a person in the actual and peaceable possession of land, claiming the same under a tax deed, void upon its face, will ripen into a good title where continuous, exclusive, adverse, and hostile possession is held thereunder for a period of 15 years.

2. Same--Arrest of Running of Statute by Re-Entry of Original Owner--Re-Entry not Effected by Owner's Mere Purchase of Building on Premises at Execution Sale nor by Entry of Intruder as His Tenant.

The peaceable re-entry on the land by the original owner before the expiration of the statutory period necessary to acquire title by adverse possession will arrest the running of the statute of limitation, but the mere purchase of a building situated on the premises, by the original owner, at an execution sale, against the adverse claimant, does not, in itself, constitute a re-entry, nor will the entry by an intruder upon a portion of the premises and payment of rent by him to the original owner without knowledge of claimant operate to break the continuity of the possession so as to interrupt the running of the statute where, upon the discovery of such entry, claimant promptly prosecutes an action which results in the ejection of such intruder.

Commissioners' Opinion, Division No. 2.

Error from District Court, Beckham County; T. P. Clay, Judge.

Action by H. E. Bonebrake and the Choctaw Townsite & Improvement Company against Tom D. Flourney and another to recover possession of land and to quiet title. Judgment for defendants, and plaintiffs appeal. Affirmed.

E. E. Blake, for plaintiffs in error.

T. R. Wise and Arthur Leach, for defendants in error.

HERR, C.

¶1 This is an action by H. E. Bonebrake and the Choctaw Townsite & Improvement company against Tom D. Flourney and J. T. Brickell to recover possession of and quiet title to lot 4, block 61, in the city of Sayre, Okla. Defendants claim under a tax deed and 15 years' adverse and continuous possession. The judgment of the trial court was in favor of the defendants. Plaintiffs appeal.

¶2 The Choctaw Townsite & Improvement Company was the original owner of the lot. This lot was sold for taxes for the year 1904, tax deed being issued to the purchaser, J.

¶3 C. Hendrix, on December 24, 1906, and by him recorded on December 31, 1906. It is conceded that this tax deed is void upon ifs face, J. C. Hendrix subsequently conveyed the premises to Bell, who conveyed to Whitehurst. On August 7, 1908, Whitehurst conveyed to V. F. and Nellie Allen. On October 17, 1910, the Allens executed a mortgage thereon to H. K. Speed, which mortgage was by him assigned to Ira Speed. This mortgage was subsequently foreclosed and a sheriff's deed executed to Ira Speed on October 14, 1921.

¶4 Prior to the execution of the mortgage to Speed, the Allens executed a chattel mortgage on the building located on said lot. The evidence is to the effect that the Speed mortgage did not include the building, and that the purchaser at sheriff's sale did not claim the building under his deed. The mortgage, however, does not show on its face that the building is excluded therefrom, but we think the record is conclusive that it was the intention of all parties to exclude the same.

¶5 The evidence discloses that the Allens occupied the premises in person for a period of about one year after the purchase, and that in 1909, they rented a portion thereof to J. N. Mallouf and a portion thereof to Rosa Rogers. Mallouf remained in possession as the tenant of the Allens, regularly paying rent to them, until possession was taken by Ira Speed under sheriff's deed.

¶6 The evidence also discloses that the Allens were indebted to Sewal Lumber Company in the sum of $ 180 for lumber used in repairing the building; that sometime in 1909 judgment was taken against them before a justice of the peace of the city of Sayre for said sum. Execution was subsequently issued on said judgment and levied on the building situated on this lot, and the same was sold to satisfy the judgment.

¶7 It seems that all parties treated the building as severed from the lot and as personal property. The same was, by the consent of the Allens, sold under execution to satisfy the judgment. The plaintiff Townsite Company became the purchaser of the building at this sale, and thereafter took an assignment of the chattel mortgage executed by the Allens on the building. The Allens, however, continued in possession of the building and occupancy of the premises, collected the rents as before, and continued so to do until possession was taken by Ira Speed under his sheriff's deed.

¶8 After Speed took possession, Mallouf, who was at that time in possession as the tenant of the Allens, remained in possession as the tenant of Speed until January 12, 1920. Speed then conveyed to J. T. Brickell, Mallouf remaining in possession as the tenant of Brickell, paying him the rent until sometime in 1921, when he removed therefrom because of the untenantable condition of the building. The lot then remained unoccupied until sometime in 1922, when the old building was torn down by Brickell and a brick building erected thereon, by him. Brickell then conveyed to Flourney, who was in possession at the time this suit was filed.

¶9 It further appears that sometime in 1914, while Ira Speed was in possession of the building and premises, the plaintiff Townsite Company made some claim to the rent. Speed made a bond to his then tenant, Mallouf, to indemnify him, who then paid to the said Speed the rents. Speed, by letter, then notified plaintiff Townsite Company to move the building, which was by it purchased at the execution sale, off the lot. This plaintiff refused to do and the old...