McElroy v. Moose
| Decision Date | 14 September 1915 |
| Docket Number | 4203. |
| Citation | 151 P. 857,51 Okla. 173,1915 OK 641 |
| Parties | MCELROY v. MOOSE. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Under section 5558, Comp. Laws 1909 (section 4681, Rev. Laws 1910) the assignee of a lease contract is the real party in interest in an action of ejectment, and it is no defense that the action is for the benefit of the assignor, against whom a plea of champerty might prevail, following Gannon v Johnston, 40 Okl. 695, 140 P. 430.
In an action of ejectment, where defendant denies the plaintiff's right of possession, it is incumbent on the plaintiff, in order to recover, to prove his right of possession at the commencement of the action, and that the defendant unlawfully keeps him out of possession.
To support an action in ejectment the plaintiff must have some title, either legal or equitable, upon which to recover land held and occupied by another. A lease contract in form, but in truth and fact an option contract, is not such title to warrant recovery against one in possession claiming title.
It is the right of possession between the parties in an action of ejectment that is tried, and this right of possession is the title that is to be adjudged in the trial.
Commissioners' Opinion, Division No. 5. Error from District Court, Okfuskee County; John Caruthers, Judge.
Action by H. McElroy against Gordon Moose. Judgment for defendant and plaintiff brings error. Affirmed.
C. T Huddleston, of Okemah, for plaintiff in error.
W. T. Banks, of Hugo, for defendant in error.
This appeal presents error from the district court of Okfuskee county. H. McElroy, plaintiff in error, who on the record here for convenience will be referred to as "plaintiff," brought an action of ejectment against Gordon Moose, defendant in error, referred to as "defendant," to recover possession of certain described real estate. The petition of the plaintiff was in the ordinary statutory form. Defendant answered by way of general denial, and pleaded specially estoppel, that the lease was in truth an option, and that the plaintiff in the action was not the real party in interest. Trial was had to a jury, and upon the conclusion of all the evidence in the case the trial court directed the jury to return a verdict in favor of the defendant, which being done, judgment was accordingly rendered thereon; from which the plaintiff appealed to this court.
Both parties derived their respective titles from a common source. The plaintiff claimed the right to possession of the land, under and by virtue of a certain lease contract, executed on the 14th day of June, 1909, for a term of five years, by the heirs of Thomas McKey, to Gaton Manwarring, and duly filed for record in the proper recording office on the date of execution, and on the same day was assigned by the lessee to H. McElroy. On the 8th day of August, 1911, H. McElroy assigned the lease to J. C. Pitchford, who in turn, on the same day, transferred the contract back to H. McElroy.
The defendant derived his title from a warranty deed, executed on the 21st day of October, 1910, by the heirs of Thomas McKey, who were lessors in the lease contract; which deed was duly approved as provided by law. The defendant went into possession of the land in controversy and immediately commenced to improve and cultivate the same.
The lessee, Gaton Manwarring, testified that he made the lease with the Indians on behalf of McElroy, in order to hold an option against the land, because the Indians were not full-bloods, but were of the half-blood. This statement was nowhere denied, and was corroborated by the transfer of the lease contract to McElroy on the date of its execution.
The contention of the defendant in error, that the plaintiff below could not maintain the action for the reason that he was not the real party in interest, within the meaning of section 5558, Snyder's Compiled Laws 1909 (same 4681 Revised Laws of Okla. 1910), is untenable. The lease contract had been assigned to him, and it was no defense that some other person was interested in the result of the suit. That was a matter between the assignee and assignor, and of no concern to the defendant. It was no defense in this particular action because it was proper to bring the action, in the name of this particular plaintiff, to avoid the plea of champerty. Gannon v. Johnston et al., 40 Okl. 695, 140 P. 430. If this alone constituted the grounds for the directed verdict, then this cause should be reversed; but a careful examination of the record discloses that the trial court should...
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