Grace v. Hildebrandt
| Decision Date | 24 February 1925 |
| Docket Number | 13431. |
| Citation | 237 P. 98,110 Okla. 181,1925 OK 155 |
| Parties | GRACE et al. v. HILDEBRANDT et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied June 9, 1925.
Syllabus by the Court.
Plaintiff sued to quiet title by cancellation of record contract, by which defendant claimed interest in land, relying on a will devisee's deed, and mesne conveyances. Defendant, by cross-petition, alleged the will was inoperative as to her alleged ownership of an aliquot part of the land; prayed for cancellation of the plaintiff's muniments as to her part and for accounting of rents and royalties. Held, the primary purpose of defendant's action against plaintiff was the recovery of specific real estate; her other grounds of relief being but incidental thereto.
Since such was the primary purpose of defendant's action defendant was, under section 532, Comp. St. 1921, entitled to a jury trial on the issues of fact thereto arising, and it was error for the court to refuse same on timely demand of defendant therefor. That the issues arose on cross-petition of defendant does not alter such right.
Under section 466, Comp. St. 1921, providing for joinder of action to quiet title with an action to recover possession of real property, and under syllabi 1 and 2, supra, it was the duty of the court to administer or refuse equitable relief of cancellation and other incidental relief according to the verdict of the jury.
Plaintiff claimed under a will executed under the laws of Arkansas, in force in the Indian Territory prior to statehood; defendant claimed to be the "legal representative" of a "child" of testatrix, born and living at the time of the execution of the will, held, if the claim of defendant, the fact to be determined by the jury, be true, such will was inoperative as to defendant, under section 6500, Mansfield's Digest of Laws of Arkansas, since the same omitted to mention the name of such child of testatrix or the defendant, eo nomine, as such "legal representative."
If, as a fact, defendant was the "legal representative" of a "child" of testatrix, then, under proper instructions, the jury should also determine as a fact when plaintiff acquired adverse possession of the real estate against defendant as a tenant in common with the devisee. The applicable statute of limitations should be made effective by the court according to the finding of the jury.
Additional Syllabus by Editorial Staff.
"Legal representatives," within Mansf. Dig. Ark. § 6500, are those who would take under the law of descent and distribution as heirs or next of kin.
Commissioners' Opinion, Division No. 2.
Appeal from the District Court, Okfuskee County; John L. Nolan, Judge.
Suit by G. W. Hildebrandt and others against W. A. Grace and others, to quiet title, in which defendant Georgianna Smith, by cross-petition, sought recovery of specific real property and incidental relief. Judgment for plaintiffs. Georgianna Smith and another appeal. Affirmed in part, and reversed in part, and remanded.
Shackelford & Ottesen, of Okemah, for plaintiffs in error.
J. B. Patterson, of Okemah, and Hiatt & Hannigan, of Okmulgee, for defendants in error.
Defendant in error Hildebrandt will be referred to as plaintiff and Georgianna Smith as defendant. Plaintiff filed this action in the district court of Okfuskee county against W. A. Grace and others to quiet title to 160 acres of real estate. None of the defendants appear in this appeal, except Georgianna Smith and James M. Shackelford. Said Shackelford's interest is by reason of an attorney's contract with said Georgianna, and their interest will be referred to as that of Smith only. Deanor and Jamison held an oil and gas mining lease under plaintiff, having produced oil from the premises, and were impleaded by Smith. Their interests and pleadings are not in conflict with, but follow, those of plaintiff. Plaintiff, Deanor, and Jamison had judgment canceling defendant's contract of record and quieting title against Smith and Shackelford, from which the latter have appealed. It is conceded by defendant Smith that said judgment should be affirmed except as to 40 acres of the quarter section. It will not be necessary to refer, except incidentally, to the remaining land, or other parties who were original defendants.
Plaintiff alleged that he was the owner and in possession of the 40, and that defendant had filed a contract with Shackelford, in the office of the county clerk, claiming an interest in the 40. Defendant admitted that she claimed an interest in the land, denied ownership of plaintiff, and specifically denied that plaintiff's possession had been open, notorious, and adverse to defendant.
By way of cross-petition, defendant alleged that she was the legal and equitable owner and entitled to the immediate possession of an undivided one twenty-fourth interest in the 40, together with her share of the rents, royalties, and profits; that her interest was subject to her contract with Shackelford. She alleged that one Nellie Holmes, a Creek Freedman, was the homestead allottee of the 40, exhibiting the allotment deed; that said Nellie was the mother of 6 children, one of whom was Monday Holmes, who died in 1905; that Monday Holmes was the father of 4 children, one of whom was Rachel Holmes, who was married to one Island Smith; that Rachel died in 1903, leaving surviving, the defendant Georgianna Smith as her sole heir; that said Nellie died intestate in 1906, and that therefore defendant was in the direct line of descent from said Nellie, and was entitled to one twenty-fourth of the estate of said Nellie at the time of her death, by right of representation; that plaintiff and those holding under him had at all times well known said facts; that defendant was a tenant in common with whomsoever held the remaining portion of the 40; that plaintiff, Deanor, and Jamison were collecting the rents, profits, and royalties and excluding defendant therefrom.
Defendant further alleged that in 1907 said Redmond Holmes purported to sell and convey the entire quarter section to one Arnold, having no interest in the 40 other than that inherited from his mother, and the said Arnold acquired no other title than such inherited interest; that in 1914 said Arnold pretended to convey said 40 to plaintiff, having no interest therein other than that inherited by Redmond; that all of said instruments, together with the mineral grant from plaintiff to Deanor and Jamison, were of record, and constituted clouds upon the one twenty-fourth interest of defendant in the 40. Defendant prayed for cancellation of all of said instruments, to quiet her title accordingly, and for an accounting of her share of the rents and royalties received and in futuro.
Plaintiff answered the cross-petition of defendant by general denial, and alleged that, prior to her death, said Nellie executed a will which was duly probated in March, 1907, exhibiting copy thereof, together with order and decree of admission, that no appeal had been taken from the judgment, and that defendant was bound thereby. Plaintiff further admitted the execution and recording of said deeds, asserted possession at all times thereunder, and alleged that the statute of limitations of Arkansas had long since barred the claims of defendant.
Defendant replied, denying the bar of limitations and that plaintiff or his grantors ever took possession of the 40 until after statehood. She alleged that, if the will of Nellie Holmes was ever executed, the same was done under the Arkansas law, providing that, before any heir can be cut off from inheritance in property sought to be devised, such heir must be named in the will, and some provision made for such heir in lieu of inheritance; that at the time of the execution of the purported will the defendant was in being and was the heir apparent to one twenty-fourth part of said 40; that defendant was not named in said will; and that no provision was made for her therein. Defendant has abandoned in this court any claim as heir to the surplus 120 acres. Plaintiff depends upon the will as the source of his title to the one twenty-fourth of the 40 claimed. Defendant Smith made timely request for trial by jury, and denial thereof is the first assignment to be noticed.
1. Under Campbell v. Dick et al., 71 Okl. 186, 176 P. 520, the primary purpose of the action of defendant, set up in her cross-petition against the plaintiff, was the recovery of the possession of her aliquot part of the land; the other grounds of relief-cancellation of the deeds by which plaintiff claimed to have deraigned his title and accounting-being but incidental thereto. However, her prayer was not strictly so. It was contended in that case that the statute of limitations for relief on the ground of fraud applied, on the theory that the action was grounded on fraud. This court held that the 15 years' statute of limitations for bringing the action was applicable because the primary purpose of the action was to recover the lands. It was there sought to cancel the deed procured by fraud. The court said:
"The mere fact that the plaintiffs charged that the deed was fraudulently procured, and the grantor therein incapacitated at the time to make a valid conveyance, none the less made the action one for the recovery of the possession of the premises."
The court also quotes from Oakland v. Carpentier, 13 Cal. 540-552:
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