Clark v. Holmes

• Decision Date: 09 January 1912
• Citation: 120 P. 642,31 Okla. 164,1912 OK 18
• Parties: CLARK v. HOLMES.
• Court: Oklahoma Supreme Court

120 P. 642

31 Okla. 164, 1912 OK 18

CLARK v. HOLMES.

Supreme Court of Oklahoma

January 9, 1912

Syllabus by the Court.

A judgment by default upon a complaint that does not state facts sufficient to constitute a cause of action, is void and will be reversed on appeal.

A person who has no interest in the title to real estate cannot maintain an action to remove a cloud upon the title to such real estate.

Error from District Court, Okfuskee County; John Carruthers, Judge.

Action by Andrew Holmes against Maurice G. Clark. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Kane J., dissenting.

W. C Newman and W. W. Wood, for plaintiff in error.

Crossan & Replogle, for defendant in error.

TURNER C.J.

On July 30, 1908, Andrew Holmes, defendant in error, filed in the district court of Okfuskee county his petition, which reads: "Comes now the plaintiff and for cause of action against the defendant alleges and states: (1) That on the 17th day of June, 1906, and for a long time prior thereto, this plaintiff was the owner of an equitable estate consisting of an one-fourth undivided interest in fee simple and a life estate in an additional one-fourth interest in and to the N.E. 1/4 of Sec. 22, Twp. 12 N., Rge. 11 E., now in the county of Oklahoma, Okla., and of a life estate in and to the N.E. 1/4 of Sec. 21, Twp. 11 N., Rge. 12 E., now in the county of Okmulgee, Okla. (2) That on the 28th day of January, 1907, there was placed on record and recorded in deed Book 21, at page 57, in the office of the clerk of the United States court for the Ninth recording district, at Okmulgee, I. T., but now Oklahoma, a deed purporting to convey by general warranty, whereby this plaintiff, in consideration of the above sum of $40.00, conveyed to Maurice G. Clark the above-described land. A copy of said deed is hereto attached, marked 'Exhibit A,' and by reference thereto is made a part thereof. (3) That this plaintiff has never signed, acknowledged, and delivered a deed to the said defendant, conveying the said land, and that the said deed is a forgery and wholly void. Wherefore this plaintiff prays that the said deed be canceled, and be declared null and void, and of no effect whatever, and that he have his costs expended in this suit, and for such other and further relief as to the court may seem just." From the action of the court, overruling his motion to set aside a judgment by default thereon, upon the ground that the petition fails to state facts sufficient to constitute a cause of action, Maurice G. Clark, plaintiff in error, brings the case here, and assigns such as error.

In support of the assignment he says the petition fails to state...