Levindale Lead & Zinc Min. Co. v. Fluke

• Decision Date: 29 June 1915
• Docket Number: 4744.
• Citation: Levindale Lead & Zinc Min. Co. v. Fluke, 150 P. 481, 48 Okla. 480, 1915 OK 526 (Okla. 1915)
• Parties: LEVINDALE LEAD & ZINC MINING CO. ET AL. v. FLUKE ET AL.
• Court: Oklahoma Supreme Court

150 P. 481

48 Okla. 480, 1915 OK 526

LEVINDALE LEAD & ZINC MINING CO. ET AL. v. FLUKE ET AL.

No. 4744.

Supreme Court of Oklahoma

June 29, 1915

Syllabus by the Court.

Section 6121,Comp. Laws 1909(section 4927,Rev. Laws 1910), does not take away any of the previously existing equitable remedies, and one who holds the legal title to land, though not in possession, may, independently of the statute maintain a suit in equity to remove a cloud from the title to said land, when the same is not in the actual possession of any one.

Where an Indian allotment has been illegally sold by the allottee prior to the removal of restrictions as to alienation of said land, after the removal of such restrictions, and where the lands conveyed are not in the actual possession of any one one does not violate section 2215,Comp. Laws 1909(section 2260,Rev. Laws 1910), by taking a valid deed from such allottee to said allotment.

Commissioners' Opinion, Division No. 1.Error from District Court, Delaware County; John H. Pitchford, Judge.

Action by Rolland D. Fluke and others against the Levindale Lead & Zinc Mining Company and others.Judgment for plaintiffs, and defendants bring error.Affirmed.

George B. Denison, of Vinita, for plaintiffs in error.

William T. Rye, of Vinita, for defendants in error.

COLLIER C.(after stating the facts as above).

There are a great many errors assigned, but, from the view we take of the case, the vital question is as to the title to said lands, and whether or not actual possession is necessary to authorize plaintiffs to maintain the action.The claim of title of the defendants is based upon a deed, executed prior to the removal of restrictions upon the alienation of said land, and therefore the same, being in direct violation of the laws of the United States, was void.Consequently the parties claiming under said deed never acquired any title and it is entirely immaterial whether or not plaintiff was advised that said deed was executed by said allottee to the party under whom defendants claim, and said defendants can claim no benefit by reason of the plaintiffs having such knowledge prior to the execution of said deed of the allottee and wife to plaintiffs.

The lands were unoccupied, and the deed which is the basis of the chain of title of plaintiffs was executed subsequent to the removal of restrictions upon the alienation of said lands and conveyed a good title to the parties under whom plaintiffs claim, free from any infirmity by reason of the provisions of section 2215,Comp. Laws 1909(section 2260,Rev. Laws 1910).It therefore follows that the title to said lands is vested in plaintiffs, and the court did not err in so holding.

With the above question disposed of, the sole question remaining is whether or not actual occupancy must be alleged in the petition and proved, in order to entitle plaintiff to maintain his action.This action may be maintained by one in actual possession, under section 4927,Rev. Laws 1910, or it may be maintained under well-established equitable jurisprudence by any one in whom the legal title is vested where the lands are entirely unoccupied.

In Grove v. Jennings,46 Kan. 366, 26 P. 738, construingsection 594 of the Kansas Code, which is identical with section 4927,Rev. Laws 1910, the court said:

"The plaintiff in error insists that there is no allegation of possession in plaintiff's petition, and that this is necessary.Is possession

necessary in an action to remove a cloud from a title?The doctrine is well settled that courts of equity will grant relief on the principle quia timet; that is, that the deed or other instrument or proceeding constituting the cloud may be used to injuriously or vexatiously embarrass or affect a plaintiff's title.Pom.Eq. Jur.§ 1399.While there appears to be some conflict of opinion as to whether possession is necessary, we think the greater weight of authorities settles the question in favor of the proposition that, where a party out of possession holds the legal title under such circumstances that the law cannot furnish him adequate relief, his resort to equity to have a cloud removed ought not to be questioned, because he may be out of possession or the land vacant.It is said that this was an action to quiet title, brought under section 594 of the Code of Civil Procedure, and that actual possession was a prerequisite at the time the action commenced.If this were true, counsels' position would be correct; but the action was not brought under section 594, and we do not understand that the statute in regard to quieting titles took away any of the previously existing equitable remedies.This case comes within a well-understood rule of equitable jurisprudence, and is independent of statutory regulations.The relief in such cases is of a kind given under the old practice only in courts of equity, and in cases outside the limits of the statute; and the facts must be fully stated, substantially as in a bill in equity under the former chancery practice.Douglass v. Nuzum,16 Kan. 515;Story, Eq. Jur. §§ 700-706;Pettit v. Shepherd, 5 Paige, 501[28 Am. Dec. 437];Field v. Holbrook, 6 Duer [N. Y.] 597;Jones v. Smith,22 Mich. 360.Under this equitable rule, a person who

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