Brady v. Mccrory

• Decision Date: 12 November 1924
• Docket Number: Case Number: 13175
• Citation: 1924 OK 1002,108 Okla. 40,233 P. 734
• Parties: BRADY v. McCRORY.
• Court: Oklahoma Supreme Court

1924 OK 1002

233 P. 734

108 Okla. 40

BRADY v. McCRORY.

Case Number: 13175

Supreme Court of Oklahoma

Decided: November 12, 1924

Syllabus

¶0 1. Champerty and Maintenance--Champertous Deed--Right of Party in Adverse Possession to Purchase Title of Grantor Pending Action Against Party.

Where the holder of the legal title to real estate who is out of possession conveys such title to a third person who is not in possession, in contemplation of law, as between the grantor, grantee, and the person in possession, holding adversely, claiming to be the owner thereof, the title remains in the grantor or original proprietor, and the person in possession has a right to purchase in such title during the pendency of an action commenced against him for possession by this grantor for the benefit of the champertous grantee.

2. Same--Effect of Dismissal of Appeal--Judgment of Grantor Inuring to Benefit of Party in Adverse Possession.

Where W. brings suit against M., who is in adverse possession, to have a deed declared a mortgage, and while the suit is pending W. conveyed the land to B., and judgment being rendered in W.'s favor, M. appeals, and pending the appeal W. executed a deed to M. and the appeal was dismissed; held, that the judgment of the lower court in favor of W. inured to the benefit of M. upon dismissing the appeal rather than to B.

Sigler & Jackson, for plaintiff in error.

Moore & West, for defendant in error.

MASON, J.

¶1 This is an action by defendant in error against plaintiff in error to quiet title to the following described tract of land: Northeast quarter of southwest quarter of section seven (7), township one (1) south, range two (2) west, containing 40 acres, more or less, situated in Cartel county, Okla. On the 10th day of September, 1908, Melvina Worley executed a warranty deed to Robert G. Harmon, conveying to him in fee simple the premises above described. Two or three years after the execution of this deed, Melvina Worley brought suit against Robert G. Harmon to have the deed declared a mortgage, and that she be permitted to redeem. The case came on trial on the 17th day of May, 1912, and the jury found that plaintiff was indebted to defendant in the sum of $ 342, with interest from September 10, 1908. The court adjudged that defendant was entitled to the possession of the property, unless plaintiff paid to him immediately the above sum, and the plaintiff take nothing by her suit, and that defendant recover his costs. Defendant was awarded a writ of possession which was stayed until January 1, 1913, upon condition that plaintiff attorn to defendant and pay him rent for the year 1912, and in the event plaintiff failed to do so, writ of possession to issue at once. No part of this record appears in the record of case at bar, except the judgment, and from it, it is hard to tell what the judgment of the court really was, but in the light of subsequent events, it seems that plaintiff made default, and that defendant was put in possession of the premises. On the 20th day of December, 1918, Robert G. Harmon conveyed the land to defendant in error. Harmon was in possession at the time and defendant in error went into immediate possession under his deed and has continued in possession since adverse to plaintiff in error and all other persons and has collected all the rents and profits therefrom. On the 9th of January, 1917, Melvina Worley brought suit against defendant in error to have the deed from Harmon to defendant in error declared a mortgage, and that she be permitted to redeem. On the 17th day of December, 1917, the court rendered judgment in favor of plaintiff, Melvina Worley, and against defendant Robert F. McCrory, from which judgment McCrory appealed. Within a month after the suit of Melvina Worley v. Robert F. McCrory was brought, in the district court of Carter county, and while the same was there pending, and on the 9th day of February, 1917, Melvina Worley conveyed the land to J. R. Brady, plaintiff in error in this case. While the case of Melvina Worley v. Robert F. McCrory was pending in this court, and on the 8th day of January, 1919, Melvina Worley conveyed her interest in the land to Robert F, McCrory, and McCrory, on the 8th day of March, 1920, filed motion for judgment supported by a confession of Judgment on the part of Melvina Worley, defendant in error. To this motion J. R. Brady, plaintiff in error in the instant case, filed a response claiming to be the real party in interest and seeking to have himself substituted as a party to the appeal On the 7th day of May, 1920, this court in an opinion by Mr. Justice Kane, McCrory v. Worley, supra, 78 Okla. 65, 188 P. 1066, sustained this motion, dismissed the appeal, and denied Brady's application for substitution. On the 16th day of March, 1920, defendant in error brought suit in the case at bar in the district court of Carter county against plaintiff in error to quiet title as before stated, alleging his ownership and possession of the land and deraigning title as heretofore indicated. Plaintiff in error filed his answer, in which he denied generally the allegations of the...