Mcgrath v. Durham

• Decision Date: 28 July 1931
• Docket Number: Case Number: 20178
• Citation: 1931 OK 489,1 P.2d 718,151 Okla. 55
• Parties: McGRATH v. DURHAM.
• Court: Oklahoma Supreme Court

1931 OK 489

1 P.2d 718

151 Okla. 55

McGRATH v. DURHAM.

Case Number: 20178

Supreme Court of Oklahoma

Decided: July 28, 1931

Syllabus

¶0 1. Quieting Title--Petition--Essential Averments Under Statute.

In an action brought under section 466, C. O. S. 1921, a petition which embodies the essential averments of the statute is sufficient. A petition which alleges that the plaintiff is the owner in fee, and in the actual peaceable possession of the property in controversy, describing it, and that the defendant claims an interest therein adverse to plaintiff's, and that the claim of defendant is a cloud upon plaintiff's title, sufficiently states a cause of action brought under said statute.

2. Pleading--Error in Sustaining Demurrer Waived by Taking Leave to Amend.

When a demurrer is sustained to a pleading and the pleader thereupon takes leave to amend, he thereby waives the error, if any has been committed, in sustaining such demurrer.

3. Appeal and Error--Pleading--Variance Between Allegations and Proof--Showing as to Materiality of Variance.

No variance between the allegations in a pleading and the proof is to be deemed material unless it has actually misled the adverse party, to his prejudice, in maintaining his action or defense upon the merits; and it must be made to appear that the complaining party was misled, and in what respect he has been misled, to his prejudice, before this court will reverse a judgment because of such variance.

4. Appeal and Error--Review--Necessity for Exceptions Below.

In all cases appealed to the Supreme Court, it is necessary to save proper and necessary exceptions in the trial court to the alleged errors sought to be reviewed; and, where the record shows that no such exceptions were saved, nothing is presented for review, and the appeal will be dismissed.

5. Same--Assignments of Error not Presented in Brief Treated as Abandoned.

Assignments of error in the petition in error, which are not presented or argued in the brief of the plaintiff in error, will be treated as abandoned, and will not be considered by this court.

6. Appeal and Error--Limitation of Actions--Defense not Considered on Appeal Unless Pleaded in Trial Court.

The defense of the statute of limitations must be affirmatively pleaded, to be available, and when it is not pleaded nor considered by the trial court, it cannot be asserted for the first time upon appeal.

Appeal from District Court, Oklahoma County; Sam Hooker, Judge.

Action by M. E. Durham against M. McGrath. Judgment for plaintiff, and defendant appeals. Affirmed.

H. A. Wilkinson, for plaintiff in error.

Everest, Dudley & Brewer and John H. Halley, for defendant in error.

ANDREWS, J.

¶1 This is an appeal from the judgment of the district court of Oklahoma county in favor of the defendant in error, plaintiff therein, against the plaintiff in error, defendant therein. The parties will be referred to hereinafter as they appeared in the trial court. The action was for the purpose of quieting title to certain real estate against the claims of the defendant. The judgment of the trial court was in accordance with the prayer of the petition.

¶2 The plaintiff, in his petition, asserted a claim of ownership of the real estate in question, alleged that the defendant claimed some right, title, interest, or estate in or to the premises, and prayed that his title thereto be quieted. It was in the ordinary form of a petition to quiet title in Oklahoma and, in our opinion, it was sufficient. Hurst v. Hannah, 107 Okla. 3, 229 P. 163; Turner v. McNeal, 118 Okla. 238, 247 P. 39. There was no mention therein of any tax deed.

¶3 The defendant filed an answer which consisted of a general denial and a statement as follows:

"Defendant states that plaintiff knows that defendant is the owner of lot one (1) block twenty (20) amended plat of Putnam Heights addition to Oklahoma City, Okla., by virtue of resale tax deed duly recorded in the office of the county clerk of Oklahoma county, Okla."

¶4 There was no prayer for relief therein.

¶5 The plaintiff filed a motion asking the court to require the defendant to make his answer more definite and certain by stating whether or not the defendant claimed to be in possession of the premises and to attach a copy of the tax deed referred to by the defendant. The court sustained that motion in part and ordered the defendant to make his answer more definite and certain by stating whether or not he was in possession of the premises and by giving the "details and facts upon which he alleges such ownership is based together with the book and page in which said alleged tax deed is recorded, the date of recording of such tax deed, the date same was issued, the property the same covers, by whom issued and the details of the sale" within five days. To that order the defendant excepted as being contrary to law.

¶6 The defendant then filed an amendment to his answer, as follows, "as Amendment to Answer, defendant claims possession of lot named in plaintiff's petition, and attaches hereto copy of defendant's resale tax deed covering said lot," to which was attached a copy of the resale tax deed.

¶7 To the answer, as amended, the plaintiff filed a general demurrer, which demurrer was sustained by the court and the defendant was given five days in which to file an amended answer, if he desired to do so. The defendant excepted to the order.

¶8 The defendant filed his "Second Amendment to Answer," in which he adopted the allegations of the answer and amendment to the answer, denied that the plaintiff is or ever was the owner of the property, asserted ownership by virtue of the resale tax deed theretofore set forth "and also by deed from R. L. Putnam, the former owner, same being merely cumulative," and prayed that the plaintiff take nothing by his action. A copy of the quitclaim deed from R. L. Putnam to the defendant was attached thereto.

¶9 The plaintiff then filed a motion to strike "all reference to a tax deed set up in the answer and amendment thereto." That motion was sustained by the court and the court ordered "that all reference contained in the answer of defendant, to any tax deed, be and the same is hereby stricken from such answer and the amendments thereto." The record shows no exception taken to that order of the court.

¶10 Thereafter the plaintiff filed a reply to the answer and amendments thereto which consisted of a general denial and a specific denial that R. L. Putnam had any title to the premises, and an affirmative allegation that the deed from R. L. Putnam to the defendant was void and champertous for the reason that R. L. Putnam had not been in possession or received rents and benefits from the premises for more than one year preceding the execution of the deed.

¶11 Upon the issue so made the cause was tried to the court. The court found that the plaintiff was the owner of the property and in possession thereof and that the defendant had no right, title, claim, interest, or equity of any character in or to the same, and rendered judgment for the plaintiff in accordance with the finding.

¶12 The defendant asserts eight assignments of error, but presents only the first, fifth, seventh, and eighth of them.

¶13 The first assignment of error relates to the sustaining of the demurrer of the plaintiff to the answer and amendments thereto. If there was error therein, the same was waived by the defendant by the filing of the second amended answer. Bank of Buchannan County v. Priestly, 87 Okla. 62, 209 P. 412; Ottawa County Nat. Bank v. Bouldin, 117 Okla. 104, 246 P. 434; Battle v. Epperson, 135 Okla. 27, 274 P. 17.

¶14 The fifth assignment of error relates to an...