McGrath v. Eichhoff

• Decision Date: 30 January 1940
• Docket Number: 28746.
• Citation: McGrath v. Eichhoff, 100 P.2d 880, 187 Okla. 64, 1940 OK 45 (Okla. 1940)
• Parties: McGRATH et al. v. EICHHOFF. [*]
• Court: Oklahoma Supreme Court

100 P.2d 880

187 Okla. 64, 1940 OK 45

McGRATH et al. v. EICHHOFF. ^[*]

No. 28746.

Supreme Court of Oklahoma

January 30, 1940

Rehearing Denied March 5, 1940.

Application for Leave to File second Petition for Rehearing Denied April 9, 1940.

Syllabus by the Court.

1.In view of the power of the district court independent of section 591, O.S.1931, 12 Okl.St.Ann. § 1141, it is unnecessary for the plaintiff in an action to quiet title to a vacant city lot to allege that he is in actual possession thereof, and his pleadings are sufficient when challenged at the trial by an objection to the evidence, if they allege in substance that the lot is not in the actual possession of any one.

2.In an action to quiet title to real estate defended by those claiming to have been in possession of said real estate on the ground that the conveyance of the property to the plaintiff was champertous, it is unnecessary for the plaintiff to affirmatively allege that he acquired said conveyance without notice of the claims of the defendants or to prove the same before the possession of the defendants is proved.

3.Where one of the conveyances relied upon in the answer of the defendants in an action to quiet title is a tax resale deed and the plaintiff in his reply asserts the invalidity of said deed because of certain alleged defects, one of which would render the deed void upon its face, it is not error for the court to overrule a motion of the defendants to strike from said reply, the allegations attacking said deed on the ground that such attack is barred by certain periods of limitation.

4.The burden is upon those seeking to avoid a deed to land on the ground that it was executed in violation of section 1939 O.S.1931, 21 Okl.St.Ann. § 548, to prove that they were in actual possession of said land adversely to the grantor of said deed or those under whom he claims.

5.Evidence examined, and held that the judgment of the trial court upholding the plaintiff's title to a vacant city lot against the claim that his deeds were champertous and holding void a tax resale deed through which the defendants claimed title to said lot, is not against the clear weight of the evidence.

6.Where, in an action by a party seeking to avoid a tax deed against the holder thereof and those claiming under him, the question of the tender prescribed by section 12763, O.S.1931, 68 Okl.St.Ann. § 455, is not raised until after the court's decision on the issues, but the plaintiff then tenders into court for the use and benefit of the defendants, the amount paid for said tax deed together with all taxes, penalties, and interest thereon paid by the defendants, and payment of said sums is ordered in the journal entry of judgment, the judgment will not be reversed on account of the alleged insufficiency of such tender.

Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.

Action by Louis Eichhoff against Joseph N. McGrath, Clarence Kline, and another to quiet title to a lot.From a judgment for plaintiff, named defendants appeal.

Affirmed.

Roscoe Bell, of Oklahoma City, for plaintiffs in error.

I. L. Harris and Ted R. Elliott, both of Oklahoma City, for defendant in error.

DAVISON Justice.

The present action was commenced by the defendant in error, as plaintiff, against the plaintiffs in error, and one M. McGrath, as defendants, to quiet his title to Lot Fifteen (15) in Block Four (4) of the McKinley Place Addition to Oklahoma City, Oklahoma.

In their answer, the defendants included a general denial together with allegations of fact upon which they based the claim that title to the lot in question was then owned by the defendants, Joseph N. McGrath and Clarence Kline.The defendants also alleged facts which they maintained rendered void and champertous certain conveyances through which the plaintiff derived his title to the property.To said answer were attached copies of certain deeds through which the defendants, Joseph N. McGrath and Clarence Kline, deraigned their title.Among these was a tax resale deed issued to the defendant, M. McGrath, by the County Treasurer on June 16, 1924, and filed of record on December 1, 1925.

In his reply, the plaintiff denied the allegations of the defendants' answer, and among other affirmative allegations, specifically asserted that the resale tax deed issued to the defendant, M. McGrath, was void on its face.

With the issues joined as we have briefly outlined, the cause went to trial.

At the trial, the defendants objected to the introduction of any evidence by the plaintiff on the ground that his pleadings were insufficient.This objection was overruled, exception taken to said ruling, and the trial proceeded.The defendants also interposed a motion to strike from the plaintiff's reply all that portion thereof pertaining to the invalidity therein attributed to the resale tax deed of the defendant, M. McGrath.This motion was overruled and exception taken to said ruling.At the close of the plaintiff's evidence, the defendants demurred thereto and said demurrer was overruled.After excepting to said ruling, the defendants introduced their evidence.When the cause was submitted to the trial court, it found the issues in favor of the plaintiff and against the defendants and entered judgment determining the plaintiff to be the owner of the lot and quieting his title thereto against the claims of the defendants.

The defendants, Joseph N. McGrath and Clarence Kline, have appealed.We will continue our reference to all of the parties as they appeared in the trial court.

Among the errors assigned by the defendants are the alleged errors of the court in overruling their objections to the sufficiency of the plaintiff's pleadings and his evidence.Their challenge to the sufficiency of the plaintiff's pleadings, by objection to the introduction of any evidence, was upon the ground that they did not state a cause of action nor entitle the plaintiff to the relief prayed for.In their brief they call our attention to the fact that the petition alleged that the plaintiff was merely in constructive possession of the lot in question.It is pointed out that according to our decision in Morgan et al. v. McGee et al., 117 Okl. 212, 245 P. 888, "constructive" possession is insufficient to support a statutory action to quiet title, and that in order to state such a cause of action under section 466, C.O.S.1921, Sec. 591, O.S.1931, 12 Okl.St.Ann. § 1141, "actual" possession must be alleged.This argument overlooks the rule that "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."Levindale Lead & Zinc Mining Co. v. Fluke,48 Okl. 480, 150 P. 481.While it is true that in his petition, the plaintiff did not allege that the lot was "not in actual possession of any one,"the defendants' objection was not a specific challenge to the petition but was directed merely to the "pleadings."An examination of the plaintiff's pleadings reveals that in his reply, he alleged that the lot "is vacant, unoccupied and unimproved."We think that this allegation was sufficient to cure the alleged defect in the plaintiff's petition in view of the rule which governs the consideration of pleadings when challenged by an objection to the introduction of evidence.In First Nat. Bank v. Harkey,63 Okl. 163, 163 P. 273, we said: "An objection of this character * * * is not looked upon with favor by the courts, unless there is a total failure to allege some matter essential to the relief sought, and should seldom, if ever, be sustained, when the allegations are simply incomplete, indefinite, or conclusions of law, and the pleading will be liberally construed, if necessary, in order to sustain the same."

A further contention of the defendants seems to be that it was incumbent upon the plaintiff in order to establish his cause of action to allege and prove that he was a bona fide purchaser of the lot in question.The error in such a conception of the plaintiff's burden is apparent when it is remembered that the cause was brought merely as an action to quiet title.The question of the plaintiff's bona fides was injected into the controversy as an affirmative defense by the allegations of the answer.These allegations were denied in the plaintiff's reply and it was, of course, not incumbent upon him as a part of his prima facie case to introduce evidence to refute them, until the cause came to trial and the defendants had introduced some evidence in support of them.

Another error assigned by the defendants is the action of the trial court in overruling their motion to strike that part of the plaintiff's reply asserting the invalidity of the tax resale deed that had been issued to their predecessor in title, the defendant, M. McGrath.The grounds asserted for said motion were that it appeared that said deed had been of record for a period of twelve years and that any and all attack upon the deed's validity was barred by the one-year period of limitation prescribed in chap. 158 S.L.1923, 68 Okl.St.Ann. § 415, as well as the two-year period prescribed by section 183, C.O.S.1921, sec. 99, O.S.1931, 12 Okl.St.Ann. § 93, and the "five year statute of limitations."The defendants attached the McGrath Resale Deed to their answer and relied upon it in asserting their defense to the plaintiff's action.Thus the question of the validity of said deed could properly be raised as an issue in said cause by plaintiff's reply.The allegations therein contained asserting the deed's invalidity were not redundant or irrelevant matter, but were germaine to said issue.For this reason...