McClung v. Penny
| Decision Date | 05 June 1902 |
| Parties | McCLUNG v. PENNY. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Where a complaint in forcible entry and detainer is filed which is sufficient on its face, the fact that it contains the allegation that the plaintiff is the owner of the premises therein described will be treated as descriptive of his right of possession, and not as raising the question of title. Inasmuch as the question of title cannot be raised or tried in an action of forcible entry and detainer, the filing of an answer setting up title, or claiming an equitable right to declare a resulting trust, will not devest the probate court of jurisdiction.
2. Article 15, c. 18, § 1562, St. 1893, reads: "Probate courts in their respective counties shall, in addition to the powers conferred upon them by the probate chapter of the territory, have and exercise all the ordinary powers and jurisdiction of justices of the peace." By this provision, jurisdiction is given of the action of forcible entry and detainer, as forcible entry and detainer is one of the ordinary powers of a justice of the peace.
Error from district court, Kay county; before Justice Bayard T Hainer.
Action by William A. Penny against Ida McClung. Judgment for plaintiff. Defendant brings error. Affirmed.
Pancoast & Bowles and S. H. Harris, for plaintiff in error.
Ransom & Bailey and J. H. King, for defendant in error.
While there are several assignments of error, only three are argued or insisted upon by plaintiff in error in his brief.
First it is alleged that as defendant in error, in his complaint, says that he is the owner of the premises there in described, this raises the question or title, and deprive the probate court of jurisdiction. We do not think this position is well taken. The word "owner," as herein used, would be merely descriptive of plaintiff's right of possession, and would not change the nature of the action.
Second, it is denied that the probate court has jurisdiction in an action of forcible entry and detainer. By article 13, c. 67, St. 1893, justices of the peace within their respective counties are given jurisdiction in such actions. Article 15, c. 18, § 1562, of the same statute, reads as follows: "Probate courts in their respective counties shall, in addition to the powers conferred upon them by the probate chapter of the territory, have and exercise the ordinary powers and jurisdiction of justices of the peace." And we think these two sections are a complete answer to this contention of plaintiff in error.
The sole and only remaining assignment of error is the third that is, has the plaintiff below the right to bring land maintain forcible entry and detainer, upon the strength of a homestead entry, when the defendant claims an interest in the land, other than possession? That is, where the defendant below claims the right to bring an action to declare plaintiff's title to be in trust for defendant. This court, in the case of Laughlin v. Fariss, reported in 7 Okl. 6, 50 P. 255, say: "Where a homestead entryman has complied with all of the requirements of the federal statutes, applicable to the disposal of the tract of land occupied by him, and has made final proof, paid the amount of money required, and received final certificate therefor, he has a complete equitable title to said land." In the case of Railway Co. v. McBratney, 12 Kan. 17, Justice Brewer, speaking for the court, says: "In an action for the recovery of real property, it shall be sufficient if the plaintiff state in his petition that he has a legal or equitable estate therein, and is entitled to...
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