Johnson v. Noble, 721.

• Decision Date: 31 March 1933
• Docket Number: No. 721.,721.
• Citation: 64 F.2d 396
• Parties: JOHNSON v. NOBLE et al.
• Court: U.S. Court of Appeals — Tenth Circuit

64 F.2d 396 (1933)

JOHNSON v. NOBLE et al.

No. 721.

Circuit Court of Appeals, Tenth Circuit.

March 31, 1933.

Warren K. Snyder and Malcom W. McKenzie, both of Oklahoma City, Okl. (J. H. Everest and Everest, McKenzie, Halley & Gibbens, all of Oklahoma City, Okl., on the brief), for appellant.

Hal G. Thurman and B. B. Blakeney, both of Oklahoma City, Okl. (W. H. Francis, of Dallas, Texas, and Blakeney, Ambrister & Wallace, of Oklahoma City, Okl., on the brief), for appellees.

Before COTTERAL and McDERMOTT, Circuit Judges, and JOHNSON, District Judge.

COTTERAL, Circuit Judge.

Mary E. Johnson sued John M. Noble and the Magnolia Petroleum Company in the District Court of Oklahoma County, Okl., for slander of her title to certain tracts of land in Oklahoma City. She alleged her citizenship and that of Noble to be in Oklahoma and that of the Magnolia Company in Texas, where it was chartered. The cause was removed to the federal District Court by the Magnolia Company, on the ground of a separable controversy with the plaintiff. The plaintiff moved to remand the case to the state court. That motion was denied by the District Judge.

The case was tried to a jury and another judge. The defendants demurred to plaintiff's evidence, and moved for a directed verdict for failure of the evidence to show a cause of action. The motions were sustained, and judgment was rendered against the plaintiff. She has appealed, but does not assign as error the ruling on the motion to remand the cause, raising the question of jurisdiction only in her argument and brief. However, it is the duty of this court to inquire on its own motion into the jurisdiction of the District Court. Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 4 S. Ct. 510, 28 L. Ed. 462; Chicago, B. & Q. R. Co. v. Willard, 220 U. S. 413, 31 S. Ct. 460, 55 L. Ed. 521; City of Gainesville v. Brown-Crummer Inv. Co., 277 U. S. 54, 48 S. Ct. 454, 72 L. Ed. 781; Teel v. Chesapeake & O. R. Co. (C. C. A.) 204 F. 918, 47 L. R. A. (N. S.) 21; Barnett v. Mayes (C. C. A.) 43 F.(2d) 521.

Diverse citizenship between all the parties on both sides of the suit was essential to federal jurisdiction, unless there was a separable controversy between the plaintiff and the Magnolia Company. Section 71, title 28, U. S. Code (28 USCA § 71). The jurisdictional question is to be determined upon plaintiff's petition and the law of Oklahoma relative to joining tort-feasors in a suit. Alabama Great So. R. Co. v. Thompson, 200 U. S. 206, 26 S. Ct. 161, 50 L. Ed. 441, 4 Ann. Cas. 1147; Cincinnati, N. O. & T. P. R. Co. v. Bohon, 200 U. S. 221, 26 S. Ct. 166, 50 L. Ed. 448, 4 Ann. Cas. 1152; Hay v. May Dept. Stores Company, 271 U. S. 318, 46 S. Ct. 498, 70 L. Ed. 965; Padgett v. Chicago, R. I. & P. R. Co. (C. C. A.) 54 F.(2d) 576.

According to the petition, the plaintiff obtained title to the land as follows: Forest S. Myers acquired the land from the government and conveyed it to Eva Myers. She and her husband, D. L. Myers, conveyed the land to a plow company, and it in turn conveyed to Evan R. Williams. The latter, joined by his wife, conveyed it to the plaintiff. The deeds were recorded; the last of them on December 17, 1917.

It is further alleged that Noble obtained a deed from D. L. Myers and his wife, Eva Myers, thereafter, in January, 1923, recorded it in February, 1923, and executed an oil and gas lease thereon to the Magnolia Petroleum Company, which was recorded on January 10, 1929; that before and after the lease was made the plaintiff had opportunities to lease the property and to sell the royalty interests therein; that, after Noble obtained his deed, of which the Magnolia Company had notice, plaintiff was offered large sums stated for a lease and the royalty interests in the land; that the defendants were advised of those offers, and plaintiff demanded a release of their claims to the land; that her attorney notified Noble he had no interest in the land; and that he had been instructed to bring suit to quiet plaintiff's title and to recover damages for slander of the title by placing of record his deed and the lease, which prevented plaintiff from receiving a large sum for a lease and her mineral rights; that the plaintiff notified the Magnolia Company of her rights and interest, and furnished it an abstract of title setting out plaintiff's title; that at various times thereafter the plaintiff notified Noble and the Magnolia Company of the offers she had for a lease and her royalty; that the recording of the deed and lease constituted a cloud upon plaintiff's title, and prevented a sale by her of her lease and of her royalty, but the defendants continuously claimed the title thereto until she brought a suit and quieted her title against them.

It is alleged in the last sentence of the ninth paragraph of the petition that the recording by Noble of the deed of Myers and wife, of which the Magnolia Company had notice, and the recording of the lease by the company were done by defendants with knowledge of plaintiff's rights, and with the intent of doing a wrongful act to her title without justification or excuse.

The defendants filed separate answers, challenging the sufficiency of the petition, and pleading denials and matters of defense.

It was the theory of the plaintiff that the acts of recording the deed and the lease, with notice of her title and a wrongful purpose, combined to slander her title, and that she was entitled, under the prevailing law and procedure in Oklahoma, to maintain her suit therefor against both defendants. We think the plaintiff was right, as we understand the pertinent decisions. Northup v. Eakes, 72 Okl. 66, 178 P. 266; City of Tulsa v. Wells, 79 Okl. 39, 191 P. 186; Cain v. Quannah L. & I. Co., 131 Okl. 25, 267 P. 641; Hunt v. Rowton, 143 Okl. 181, 288 P. 342; Tidal Oil Co. v. Pease, 153 Okl. 137, 5 P.(2d) 389, 391; Morgan v. Hines (D. C.) 260 F. 585; Centerville State Bank v. National Surety Co. (C. C. A.) 37 F.(2d) 338; Padgett v. Chicago, R. I. & P. R. Co. (C. C. A.) 54 F.(2d) 576, 577.

In the Pease Case, quoting from 38 Cyc. 488, it was said that "to make tort-feasors liable jointly there must...