Herndon v. Board of Com'rs In and For Pontotoc County
| Citation | 11 P.2d 939,158 Okla. 14,1932 OK 341 |
| Decision Date | 03 May 1932 |
| Docket Number | 20825. |
| Parties | HERNDON v. BOARD OF COM'RS IN AND FOR PONTOTOC COUNTY. |
| Court | Oklahoma Supreme Court |
Rehearing Denied June 7, 1932.
Syllabus by the Court.
1. The determining factor as to whether the statute of limitations runs against a cause of action, to which the state or a subdivision thereof is a party, is determined by whether the right affected is a private right or a public right.
2. Where the right under consideration is a public right the statute of limitations does not run against said right.
3. Where the basis of the cause of action is the right of the county to real property used for a courthouse site and street, the same is a public right, and the statute of limitations does not run against said right.
4. Where the court submits a case to the jury under proper instructions, and the evidence is ample to support the verdict of the jury, this court will not reverse the same on appeal.
5. Record examined, and held: Judgment of the trial court is affirmed.
Appeal from District Court, Pontotoc County; Orel Busby, Judge.
Action by the Board of County Commissioners in and for Pontotoc County against R. A. Herndon. Judgment for the plaintiff, and the defendant appeals.
Affirmed.
McKeown & Green, of Ada, for plaintiff in error.
J. W Dean, Co. Atty., H. F. Mathis, Asst. Co. Atty., and Holt & Gilbreath, all of Ada, for defendant in error.
The parties will be referred to in this opinion as they appeared in the trial court.
Plaintiff board of county commissioners of Pontotoc county, Okl instituted suit in the district court seeking to compel the conveyance of certain real property situated in Ada, Okl. Defendant filed a special demurrer to said petition raising the statute of limitations as a bar to plaintiff's cause of action. The demurrer was overruled. Defendant answered by general denial and pleaded the statute of limitations as a bar to plaintiff's cause of action. The case was tried to a jury and resulted in judgment favorable to plaintiff.
The record discloses that a committee of persons residing in Ada, Okl., purchased certain land located in said city for the purpose of procuring the erection of a county courthouse thereon. The land was held in the name of R. A. Herndon, defendant herein. A contract was entered into between plaintiff and defendant whereby defendant agreed to convey to plaintiff for $10,000, the south half of block 105, being 140 feet by 400 feet located in the city of Ada, Okl., for the purpose of erecting and constructing a county courthouse thereon. Defendant later executed a deed which conveyed certain lots to plaintiff, describing the lots by number therein. Said deed conveyed only the south 15 feet of lot 7. The deed was placed of record by the officials of Pontotoc county, Okl., but said county did not take possession of said land until some eight years thereafter, during which time defendant remained in possession of the buildings on said land and received all the rents therefrom.
There is a plat of block 105, Ada, Okl., at page 55 of the record, and from said plat we observe that the alley in said block extends east and west from the west line of said block to a point 130 feet from the east line of the said block, and it further appears that formerly an alley extended north and south from the east end of said alley. Thus the east 130 feet of said block had no alley extending through to the east and west, but at one time had an alley extending north and south, along the west line of said portion of the block.
The courthouse was built on said property, and shortly thereafter, while arranging to convert the alley in block 105 into a street, plaintiff discovered that all of the land it was presumed to have received under the contract had not been received.
The contract for deed entered into between plaintiff and defendant designates said land to be conveyed as the south half of the said block, but further states the same to be 140 by 400 feet.
The controversy in the case at bar arises because of the misunderstanding between the parties to said deed in regard to whether the land conveyed should have been the south half of the block or the south 140 feet thereof.
If the real intention of the parties was to convey the south half of block 105, then plaintiff's contention is correct; but, if the intention of the parties was to convey the south 140 feet of said block, then defendant is correct in his contention.
Defendant's first specification of error is that the court erred in overruling the special demurrer of the defendant to the amended petition of plaintiff.
In said special demurrer defendant raised the statute of limitations as against plaintiff's cause of action, and, in support of defendant's contention, cite the case of Board of County Commissioners of Woodward County v. Willett, 49 Okl. 254, 152 P. 365, L. R. A. 1916E, 92, wherein it was held that the statute of limitations run as against private rights of the county.
Plaintiff cites and relies upon the case of White et al. v. State, 50 Okl. 97, 150 P. 716, and State ex rel. Freeling, Attorney General, v. Smith, 77 Okl. 277, 188 P. 96, which latter cases hold that the statute of limitations does not run against the state unless expressly so provided by statute. This presents an apparent conflict of authorities and necessitates a careful consideration of said decisions of this court so as to determine the correct rule to apply in the case at bar.
In the case of Board of County Commissioners of Woodward County v. Willett, supra, this court had under consideration the difference between a private and a public right of a county or municipality.
In said cause suit had been instituted seeking to recover salary paid to a public official, which was alleged to have been in excess of the lawful amount of salary to have been paid. The statute of limitations was invoked in said cause, and this court held that the matter of the recovery of excessive salary paid was a matter in the nature of a private right and the statute of limitations would apply as against a matter in the nature of a private right. The court also distinguished the matter of a private right and a public right and cited the case of Foot et al. v. Town of Watonga, 37 Okl 43, 130 P. 597, wherein this court held: "The...
To continue reading
Request your trial