J. D. Smith El Al v. Kirchner

• Decision Date: 30 July 1898
• Citation: 54 P. 439,7 Okla. 166,1898 OK 85
• Parties: J. D. SMITH el al. v. W. H. KIRCHNER
• Court: Oklahoma Supreme Court

1898 OK 85

54 P. 439

7 Okla. 166

J. D. SMITH el al. v. W. H. KIRCHNER

Supreme Court of Oklahoma

Decided: July 30, 1898

SYLLABUS

¶0 JUSTICES OF THE PEACE--Jurisdiction--Forcible Entry. A justice of the peace has no jurisdiction in an action of forcible entry and detainer, in which the vendor of real estate brings an action to recover the possession of premises against a purchaser to whom he has made a contract for the sale of the land, and whom he has put in possession thereof, and who has made default in the payment of the purchase price. The remedy is by an action in the district court to rescind the contract, or to foreclose the equitable interest of the purchaser.

Action by W. H. Kirchner against J. D. Smith and M. E. Smith. Judgment for plaintiff. Defendants bring error. Reversed.

This was an action begun before a justice of the peace of Noble county to recover the possession of certain real estate under the provisions of article 13 of the Code of Civil Procedure, entitled "Forcible Entry and Detainer." At the trial of the case the following contract was introduced in evidence by the plaintiff, the defendant in error here:

"This contract, made and entered into by and between W. H. Kirchner, party of the first part, and J. D. Smith and M. E. Smith, parties of the second part, this 9th day of December, 1896, witnesseth, that whereas, the said party of the first part has bargained and sold, and by these presents does bargain and sell, unto the said party of the second part the following described lot, to-wit: lot seven (7) in block seventy-eight (78) in West Perry, together with all the improvements thereon, for and in consideration of two hundred and fifty dollars. The receipt of eighty dollars is hereby acknowledged, and the balance, to wit: one hundred and seventy dollars, on or before the 9th day of May, 1897, with interest to be paid to the said first party: Now, if the said second party shall well and truly pay the full amount of said note and interest when due, then the first party shall execute a quit claim deed for said lot and improvements thereon, giving to said second party quiet and peaceable possession of said premises; but, in case default is made in the payment of said note and interest, then in that case the said second party shall deliver to said party of the first part said lot and improvements thereon, without any further notice whatever. Witness the said parties have hereunto subscribed their names this 9th day of December, 1896. J. D. Smith. M. E. Smith. W. H. Kirchner.

"Subscribed and sworn to before me this 9th day of December, 1896. W. Taylor, Notary Public."

Under this contract the plaintiffs in error, (defendants below,) went into the possession of the premises, and, having paid the sum of $ 80, as stated in the contract, gave their promissory note for $ 170 for the remainder of the purchase money. The defendants Smith failed to make the payments provided for in the contract, and upon the 12th day of June, 1897, the plaintiff, Kirchner, tendered the promissory note for $ 170 to the Smith's, and demanded possession of the property, which was refused. The action was begun on the 17th day of June by the defendant in error, who alleged that he was the owner of the property, entitled to its immediate possession, and that the possession was wrongfully and forcibly detained by the defendants. The defendants Smith answered (1) by general denial, and (2) that the property had been purchased from the defendant in error, and that they were placed in possession by the defendant in error, and were rightfully in possession. The justice of the peace found at the trial that the title to the property was involved in the case, and the case was thereupon certified to the district court, over the objection of the defendants Smith, who moved for the dismissal of the cause upon the ground that the justice of the peace had no jurisdiction of the rights of the parties under the contract made between them, and the possession given under it, in an action of forcible entry and detainer. The motion was overruled, and the case sent to the district court, where, upon trial before the court, judgment was rendered in behalf of the defendant in error, Kirchner. Motion for a new trial was made and overruled.

Error from the District Court of Noble County; before A. G. C. Bierer, District Judge.

Morgan & Pancoast, for plaintiff in error.

J. W. Quick, for defendant in error.

MCATEE, J.:

¶1 The provisions of the Code of Civil Procedure which bear upon this case are as follows:

"SEC. 167. Any justice, within his proper county, shall have the power to inquire, in the manner hereinafter directed, as well against those who make unlawful and forcible entry into lands and tenements, and detain the same, as against those who, having a lawful and peaceable entry into lands or tenements, unlawfully and by force hold the same; and if it be found, upon such inquiry, that an unlawful and forcible entry has been made, and that the same lands and tenements are held by force, or that

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