Jameson v. Goodwin

• Decision Date: 23 June 1914
• Docket Number: 4813.
• Parties: JAMESON v. GOODWIN ET AL.
• Court: Oklahoma Supreme Court

141 P. 767

43 Okla. 154, 1914 OK 296

JAMESON v. GOODWIN ET AL.

No. 4813.

Supreme Court of Oklahoma

June 23, 1914

Syllabus by the Court.

Under sections 5347 and 5348, Comp. Laws 1909 (sections 6301, 6302, Rev. Laws 1910), suits for the recovery of real property and to remove a cloud and to quiet title thereto may be maintained by and against administrators and executors, and the heirs of the decedent or intestate are not necessary parties.

Plaintiff instituted this suit against the administrator and administratrix of Wilson M. Purcell, deceased, and joined all the heirs of decedent as defendants. Defendants in said cause, with the exception of one heir, were made parties to the proceeding in this court. On motion to dismiss petition in error, on the ground that this court is without jurisdiction on account of nonjoinder of said heir held, that the heirs were not necessary parties in the court below; hence, not necessary parties in this court and the motions to dismiss are overruled.

Error from District Court, Pawnee County; L. M. Poe, Judge.

Action by George Jameson against G. W. Goodwin, Rebecca J. Purcell administrator and administratrix of the estate of Wilson M Purcell, deceased, and others. Judgment for defendants, and plaintiff brings error. On motions to dismiss. Motions overruled.

Dillard & Blake, of Tulsa, and Burwell, Crockett & Johnson, of Oklahoma City, for plaintiff in error.

Biddison & Campbell, James B. Diggs, and Henry McGraw, all of Tulsa, for defendants in error.

RIDDLE J.

Plaintiff in error, plaintiff below, filed his second amended petition in the court below, alleging in substance that on the ______ day of November, 1911, Wilson M. Purcell died intestate, and that defendants G. W. Goodwin and Rebecca J. Purcell are the duly appointed administrator and administratrix of his estate. Plaintiff also made the Gypsy Oil Company and C.J. Wrightsman and D. D. Mickleson and the heirs of said Wilson M. Purcell, deceased, and W. T. Cleeton, guardian ad litem of Cleola Purcell, Fay Purcell, and Wilson C. Purcell, minors, parties defendant. Plaintiff was the owner of one-third undivided interest in the land described in said petition, and he sets up in detail the source of his title. It is further alleged that deceased, prior to his death, fraudulently secured a conveyance from the grantors of plaintiff to the land described; that said conveyance was a cloud on plaintiff's title. He prayed for judgment against defendants and each of them, decreeing him to be the owner of an undivided one-third interest in the land, for possession, and for such other general relief as he may be found entitled to. Defendants G. W. Goodwin and Rebecca J. Purcell, administrator and administratrix of the estate, filed their answer, denying generally the allegations of the petition, except such as were specifically admitted. They admit that Wilson M. Purcell died intestate, as alleged, and that they are the duly appointed and acting administrator and administratrix; admit the heirship, as alleged, and allege that deceased was the owner of the land described at the time of his death. They also admit the execution of the deed to the intestate, as alleged in said petition, and claim that said deed was valid and conveyed the title of said Wilson M. Purcell. The answer of defendants C.J. Wrightsman and D. D. Mickleson disclose that Wilson M. Purcell, prior to his death, executed an oil and gas lease to them, which they had assigned to the Gypsy Oil Company. The Gypsy Oil Company filed an answer, claiming interest in the land under said lease, and allege that said Wilson M. Purcell, at the time of his death, was the owner of said land. The heirs of said Wilson M. Purcell, deceased, in substance, adopt the answer filed by the administrator and administratrix.

On the 30th day of October, 1912, the district court of Pawnee county rendered judgment against plaintiff below, plaintiff in error, in favor of defendants below, defendants in error. Defendant Gypsy Oil Company has filed its motion to dismiss the appeal, upon the ground that no summons in error was served and no publication of summons had upon defendants Lucretia Bohot, Cleola Purcell, Fay Purcell, and Wilson C. Purcell, and that each of said parties are necessary parties to this appeal. Lucretia Bohot entered her special appearance in this court for the purpose of filing her motion to dismiss, alleging as a ground that she was an heir of Wilson M. Purcell, deceased, and that she claims a certain interest in the land involved, jointly with the other heirs of said Wilson M. Purcell, deceased; and alleges that no summons in error has ever been served upon her, and that more than six months have expired since the action of the court in overruling the motion for a new trial. The defendants C.J. Wrightsman and D. D. Mickleson have filed their joint motion to dismiss, upon the ground that Lucretia Bohot and the parties mentioned above are necessary parties to this appeal, and that they are not made parties to this proceeding. G. W. Goodwin and Rebecca J. Purcell, as shown from the record, are administrator and administratrix respectively of the estate of Wilson M. Purcell, deceased. These various motions present the question for determination as to whether or not the heirs at law of Wilson M. Purcell, deceased, are necessary parties to this proceeding in error. In answering this question, it is necessary to determine whether or not they were necessary parties in the court below. The record shows that all the heirs at law of said Wilson M. Purcell, deceased, are made parties in this court, with the exception of Lucretia Bohot. It is admitted that no summons in error has been served upon her, and that she has not waived the same, nor has she made her appearance in this court within the time prescribed by law.

A determination of the question raised by these motions requires the construction of sections 5347 and 5348, Comp. Laws 1909, relating to the power conferred upon administrators and executors, which sections are as follows:

"Sec. 5347. The executor or administrator must take into his possession all the estate of the decedent, real and personal, except the homestead and personal property not assets, and collect all debts due to the decedent or to the estate. For the purpose of bringing suits to quiet title or for partition of such estate, the possession of the executors or administrators is the possession of the heirs or devisees; such possession by the heirs or devisees is subject, however, to the possession of the executor or administrator, for the purpose of administration, as provided in this chapter.

Sec. 5348. Actions for the recovery of any property, real or personal, or for the possession thereof, and all actions founded upon contracts, may be maintained by and against executors and administrators in all cases and in the same courts in which the same might have been maintained by or against their respective testators and intestates."

A question similar to the one before the court was decided in the case of McClung v. Cullison, 15 Okl. 402, 82 P. 499. That action was filed by McClung through his guardian, to set aside a judgment rendered in a proceeding to foreclose a mortgage, wherein the administrator was sole defendant. The court, in disposing of that case, stated:

"Hence we think that the service in that case was sufficient to uphold the judgment, even if the minor, Wade L. McClung, was a necessary party to the foreclosure proceeding * * * which is made the basis of this action, and this involves a question which is presented to this court for the first time. We think that, under the provisions of our statute, in an action to foreclose a mortgage, the heirs are not necessary parties, and that, where the

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