Fuhr v. Okla. City

• Decision Date: 14 November 1944
• Docket Number: Case Number: 31906
• Citation: 153 P.2d 115,1944 OK 305,194 Okla. 482
• Parties: FUHR v. OKLAHOMA CITY et al.
• Court: Oklahoma Supreme Court

1944 OK 305

153 P.2d 115

194 Okla. 482

FUHR v. OKLAHOMA CITY et al.

Case Number: 31906

Supreme Court of Oklahoma

Decided: November 14, 1944

Syllabus

¶0 1. COMMON LAW--Repeal of statute merely an enactment of common law does not restore common law rule when other statutes abrogate common law rule.

The repeal of a statute that is merely an enactment of a common law does not restore the common law rule when there are other sections of the statutes which have the effect of abrogating the common law rule.

2. SAME--DEEDS--Act of 1893 repealing 1890 statute did not restore common law rule against alienation of mere right of re-entry.

The repeal, in 1893, of section 6651 of the Statutes of Oklahoma of 1890 did not restore the common law rule for which section 6651 stood, since sections 4132, 4133, and 4142 of the Statutes of Oklahoma of 1890, which abrogated the common law rule against alienation of a mere right of re-entry, were not also repealed, but remained in effect.

3. CONSTITUTIONAL LAW--Property owner deprived of no vested right by repeal of statute which deprived him of right to alienate interest in property.

A property owner has no vested right in a statute that deprives him of the valuable right to freely alienate a right or interest in property, and he is deprived of no vested right by the repeal of such statute.

4. DEEDS--In 1903 contingent remainder was alienable under 1893 statute.

Interests and rights in real property and the right to acquire and transfer them were governed by the Oklahoma Statutes of 1893, which changed the Property Code contained in the Oklahoma Statutes of 1890 by repeal of certain portions. Under said 1893 statutes, which were in force in 1903, the distinctions between deeds on condition subsequent and deeds on conditional limitation were abolished, and all future interests were either reversions or remainders, and every contingent remainder was deemed to be a conditional limitation and was inalienable.

Appeal from District Court, Oklahoma County; A. P. Van Meter, Judge.

Condemnation proceeding by Antoine H. Fuhr against City of Oklahoma City to assess damages from appropriation of real estate by city; Sarah Joslyn intervening. From judgment awarding intervener the condemnation money, plaintiff appeals. Affirmed.

Chas. H. Garnett, of Oklahoma City, for plaintiff in error.

Rittenhouse, Webster, Hanson & Rittenhouse, A. L. Jeffrey, Municipal Counselor, and Arthur Leach, Asst. Municipal Counselor, all of Oklahoma City, and Gordon Stater, of Los Angeles, Cal., for defendants in error.

HURST, J.

¶1 This is a condemnation proceeding in reverse commenced by Sam Fuhr and Antoine H. Fuhr, as plaintiffs, against Oklahoma City to assess damages resulting from the appropriation by the city of the south 40 feet of lot 32 in block 49 in the original townsite of Oklahoma City. Sam Fuhr died during the pendency of the proceeding and Antoine H. Fuhr, his sole heir, then prosecuted the proceeding as sole plaintiff. Sarah Joslyn intervened claiming title to the property. From a judgment awarding the condemnation money to intervener, the plaintiff, Antoine H. Fuhr, appeals.

¶2 The material facts are as follows: On June 8, 1891, Rachel Fuhr, who then owned said lot, by quitclaim deed, conveyed the south 40 feet thereof to the Choctaw Coal & Railway Company. The deed contained this clause:

". . . being intended for the use and occupation of said second party its successors and assigns as for its right-of-way for the construction, operation and maintenance of its railroad and business at or upon the land hereby released and quitclaimed. Provided that in case of abandonment of said second party its successors or assigns for the purpose above mentioned, the same shall revert to the grantor their heirs or assigns."

¶3 On April 13, 1942 Rachel Fuhr conveyed the entire lot to John Wallace. By mesne transfers the title to all but the south 40 feet of said lot became vested in John Threadgill prior to May 22, 1903, on which date Rachel Fuhr and husband, by quitclaim deed, conveyed all of said lot to John Threadgill. By mesne transfers the interest of John Threadgill became vested in the intervener, Sarah Joslyn, who owned such interest at the time of the filing of this proceeding on March 4, 1944. The interest, if any, of Rachel Fuhr belonged to Antoine H. Fuhr at the time this proceeding was tried. The interest of the Choctaw Coal & Railway Company in said property became vested in the Choctaw, Oklahoma & Gulf Railroad Company, which company leased the railway track and land here involved to Chicago, Rock Island & Pacific Railroad Company for a period of 999 years. Said tract of land was used continuously for railroad right-of-way purposes from the time the railroad was constructed in 1891 until December 4, 1930, when the railroad companies ceased to use it for railroad purposes, and abandoned it, and conveyed and surrendered possession of it to Oklahoma City, and it has since said date been used by Oklahoma City for public purposes. The foregoing facts were established by a written stipulation and some oral testimony, and they area not in dispute.

¶4 It will thus be seen that at the time this proceeding was tried the plaintiff, Antoine H. Fuhr, owned only such interest, if any, in said property as Rachel Fuhr owned after her conveyance of May 22, 1903, to John Threadgill, and the intervener owned such interest therein as John Threadgill acquired by said deed. The trial court held that the effect of said conveyance was to vest in John Threadgill all of the interest of Rachel Fuhr, and rendered judgment in favor of the intervener, from which judgment the plaintiff has appealed.

¶5 The deed of June 8, 1891, conveyed to the railway company a determinable fee on condition subsequent. Oklahoma City v. Federal Savings & Loan Ass'n et al., 192 Okla. 188, 134 P. 2d 565. By it, the grantor retained a mere right of re-entry. The question for decision is whether such a right could be conveyed to a third person on May 22, 1903, when the deed from Rachel Fuhr and husband to John Threadgill was made.

¶6 In Jones v. Oklahoma City, 193 Okla. 637, 145 P. 2d 971, we held that, by reason of the provisions of section 6651 of the Statutes of Oklahoma of 1890, a mere right of re-entry was not alienable in 1891 to anyone except the owner of the fee. It follows that the deed of April 13, 1892, from Rachel Fuhr to John Wallace did not have the effect of transferring the right of re-entry to Wallace, since section 6651 was then in effect. In a supplemental opinion on rehearing in Kassner v. Alexander Drug Co., 194 Okla 36, 147 P. 2d 979, we held that section 6651 of the Statutes of Oklahoma of 1890 was repealed in 1893, and that, in 1905, the right of re-entry was alienable by reason of the provisions of sections 4033, 4034, and 4043 of Wilson's 1903 Code.

¶7 The appellant contends that we were in error in the Kassner Case in saying that the Property Code was rewritten in 1893; that in fact the sections of the 1903 Code on which the Kassner decision was based were in the 1890 Code and that the only change made in 189 of the 1890 Code was the repeal of the portion of chapter 86 of the 1890 Cod on the subject of "Transfers," including section 6651; that the repeal of section 6651, which simply enacted the common law rule, did not have the effect of nullifying the common law rule; and that since the right of re-entry was not alienable at the time the deed of June 8, 1891, was made, no subsequent change of the law would make it alienable.

¶8 It is true, as argued by appellant, that the Property Code was not entirely rewritten in 1893. We have examined the journals of the 1893 Territorial Legislature, and find that on February 23, 1893, several laws became effective repealing all of articles 2 and 3, of chapter 69 of the Statutes of 1890, on the subject of "Property," and repealing all of articles 1, 3, 6, and 7 of chapter 86 of the Statutes of 1890 on the subject of "Transfers." Section 6651 was in article 1 of chapter 86. And when the 1893 Stat. was compiled the portions of the chapters on "Property" and "Transfers" so repealed were properly omitted therefrom.

¶9 Sections 4033, 4034, and 4043 of the 1903 Stat. referred to in the Kassner opinion, have been in our property statutes since 1890. They are found respectively in our several codes as follows: Sections 4132, 4133, and 4142 of the 1890 Stat.; sections 3705, 3706, and 3715 of the 1893 Stat.; sections 6603, 6604, and 6614 of the 1910 Revised Laws; sections 8408, 8409, and 8419 of the 1921 Compiled Statutes; sections 11754, 11755, and 11765 of the 1931 Compiled Statutes; and 60 O. S. 1941 §§ 29, 30, and 40.

¶10 It thus appears that, under the 1890 Stat., we had section 6651, which specifically provided that "a mere...