Flesher v. Callahan

• Decision Date: 12 March 1912
• Citation: Flesher v. Callahan, 122 P. 489, 32 Okla. 283, 1912 OK 180 (Okla. 1912)
• Parties: FLESHER v. CALLAHAN et al.
• Court: Oklahoma Supreme Court

122 P. 489

32 Okla. 283, 1912 OK 180

FLESHER v. CALLAHAN et al.

Supreme Court of Oklahoma

March 12, 1912

Syllabus by the Court.

By the execution and delivery of a deed in general terms, the entire legal interest in the premises vests in the grantee; and, if the grantor continues in possession afterward, his possession will be that either of tenant or trustee of the grantee. He will be regarded as holding the premises in subserviency to the grantee; and nothing short of an explicit disclaimer of such a relation and a notorious assertion of right in himself will be sufficient to change the character of his possession.

(a) In such case, the grantor is not deemed, in law, to have adverse possession against his grantee, or those deriving title from him.

The doctrine of adverse possession is to be taken strictly. Such a possession is not to be made out by inference, but by clear and positive proof. Every presumption is in favor of possession in subordination to the title of the true owner.

A possession, to be adverse, must be open, visible, continuous and exclusive, with a claim of ownership, such as will notify parties seeking information upon the subject that the premises are not held in subordination to any title or claim of others, but against all titles and claimants.

(Additional Syllabus by Editorial Staff.)

Where land conveyed, though not in the possession of the grantor is not held adversely by the occupant, the deed is valid.

Under Comp. Laws 1909, § 5648, providing that allegations of the execution of written instruments and indorsements thereon shall be taken as true, unless the denial thereof be verified by affidavit, requires the verification of denial of the execution of the instrument only, and not of the authority of the person by whom it was executed.

A demurrer by defendant to the evidence admits the truth of all the evidence offered on the part of plaintiff, together with such inferences and conclusions as may reasonably be drawn therefrom.

Commissioner's Opinion, Division No. 1. Error from District Court, Okfuskee County; John Caruthers, Judge.

Action by M. B. Flesher against Benton Callahan and another. Judgment for defendants, and plaintiff brings error. Reversed and remanded.

C. B. Connor and W. A. Huser, for plaintiff in error.

J. B. Patterson and C. W. Brewer, for defendants in error.

SHARP C.

Plaintiff sued defendants for the recovery of one quarter section of land in Okfuskee county, and for damages for withholding the possession thereof. At the conclusion of the plaintiff's testimony, the defendants interposed a demurrer, which was sustained, and judgment thereupon rendered for defendants. The only question presented is whether or not the demurrer to the evidence was properly sustained.

That Billy Yahola was the original owner of the land appears to have been conceded. Plaintiff's title was by mesne conveyances, offered in evidence as follows: Billy Yahola and wife, Winnie Yahola, warranty deed, dated August 31, 1907, to Green A. Fewell; consideration, $3,200. This deed, duly executed and acknowledged, was placed of record in the office of the deputy clerk and ex officio recorder of deeds at Okmulgee, in the then Indian Territory, on the day of its execution. Quitclaim deed from Green A. Fewell to S. M. Wilson, dated November 12, 1909, consideration, $1, duly signed and acknowledged and placed of record at Okemah, Okfuskee county, November 15, 1909. Warranty deed from S. M. Wilson and wife, Flora Wilson, to M. B. Flesher, dated November 20, 1909, consideration $2,100, duly signed and acknowledged and placed of record, November 22, 1909.

On cross-examination, plaintiff testified that F. B. Dale was in the possession of the lands sued for during the year 1909 as tenant of defendants, and that defendants were in possession, both at the time the deed was made from Fewell to Wilson and from Wilson to plaintiff. Counsel for defendants urge that, neither Wilson nor Fewell having been in possession when their deed was made, and not having been in possession or collected rent for more than a year, both of said deeds were void as to defendants, and cite Huston v. Scott, 20 Okl. 142, 94 P. 512, 35 L. R. A. (N. S.) 721, in support of their contention. Counsel have overlooked the fact that the rule announced in the above case applies only to persons holding adversely to the owner thereof. It was there said by Dunn, J.: "For the deed in this case is not void as between the grantor and grantee, nor due to any disability of either the former to make the transfer, or the latter to take the title. The disability does not lie there, but is inherent in the condition of the land itself, which being held adversely under color of title, the conveyance thereof is void as against such occupant. *** It is a transfer of land in adverse possession, against which the statute animadverts; but the deed made between the parties is good as between them and to all the world."

Adhering to the former opinion of this court in the foregoing case, it was held, in the syllabus of Powers et al. v. Van Dyke et al., 27 Okl. 27, 111 P. 939: "St. Okla. 1895, § 2026 (Wilson's Rev. & Ann. St. 1903, § 2112; Comp. Laws 1909, § 2215), making a misdemeanor the buying or selling of any pretended right or title to land, where the grantor or those by whom he claims have not been in possession or taken the rents and profits thereof for the space of one year before such conveyance, is declaratory of the common law, and a conveyance of land, made in contravention thereof by the rightful owner, as against the person holding adversely, is void."

To bring the case within the prohibition of the statute construed in the foregoing opinions, what proof, then, is there of an adverse holding, whether under color of title or not? Can it be said that, because defendants were in possession of the land on the date of both the Fewell and Wilson deeds, we must therefore presume that they were in adverse possession, within the meaning of the statute?

"Possession, to be adverse, must be open, visible, continuous, and exclusive, with a claim of ownership, such as will notify parties seeking information upon the subject that the premises are not held in subordination to any title or claim of others, but against all titles and claimants." Wade v. Crouch et al., 14 Okl. 593 [78 P. 91]. This definition of adverse possession is that adopted by the Supreme Court of the United States in Sharon v. Tucker, 144 U.S. 533, 12 S.Ct. 720, 36 L.Ed. 532.

Where the land conveyed, though not in the possession of the grantor, is not adversely held by the occupant, the deed is valid. 6 Cyc. 885; Gamble, Ex'r, v. Hamilton, 31 Fla. 401, 12 So. 229; Cornwell v. Clement, 87 Hun, 50, 33 N.Y.S. 866. A conveyance, not within the spirit and policy of section 2215, supra, will be upheld wherever possible, unless it is manifestly and clearly within its terms. 6 Cyc. 873; Henderson v. Peck, 3 Humph. (Tenn.) 247.

In Schwallbach v. C., M. & St. P. Ry., 69 Wis. 292, 34 N.W. 128, 2 Am. St. Rep. 740, it was said, quoting from volumn 3, Washburn on Real Property, 160, : "The doctrine of adverse possession is to be taken strictly. Such a possession is not to be made out by inference, but by clear and positive proof. Every presumption is in favor of possession in subordination to the title of the true owner." It was further said by the court: "Here the testimony fails to disclose anything more than a mere occupancy or possession by any of such subsequent conveyances. That was subordinate to the title of the real owner. We must hold that there is an absence in the record of any evidence of disseisin."

In Pownal v. Taylor, 37 Va. 172, 34 Am. Dec. 725, it was said in the syllabus: "Adverse possession...