Mcgrath v. Rorem

• Decision Date: 14 December 1926
• Docket Number: Case Number: 16593
• Citation: 1926 OK 991,252 P. 418,123 Okla. 163
• Parties: McGRATH v. ROREM et al.
• Court: Oklahoma Supreme Court

1926 OK 991

252 P. 418

123 Okla. 163

McGRATH v. ROREM et al.

Case Number: 16593

Supreme Court of Oklahoma

Decided: December 14, 1926

Syllabus

¶0 1. Appeal and Error--Review of Error in Overruling Demurrer to Pleading--Reservation of Objections and Time for Appeal.

Where a party seeks to have reviewed in this court an order overruling his demurrer to his opponent's pleadings he must either elect to stand upon his demurrer, in which event final judgment must be rendered in the cause by the court, and the appeal lodged in this court within six months from the date of the final judgment so rendered, or he may reserve his exception to the order overruling his demurrer, plead further, and, upon judgment being rendered against him on the merits, appeal from this judgment, and bring the record here for review upon transcript within six months from date of said judgment where a motion for new trial is unnecessary, or within six months from date of order overruling motion for new trial where such motion is necessary.

2. Pleading -- Objections to Pleadings Waived by Agreed Statement of Facts.

Where the parties submit their controversy to the court upon an agreed statement of facts, such agreement has the effect to waive any error in the action of the court in its rulings on the pleadings.

3. Champerty and Maintenance--Champerty Statute Inapplicable Where Grantee Sues for Land in Name of Grantor.

In an action where the grantee maintains the action in the name of his grantor to recover real estate from the adverse holder, section 2260, R. L. 1910, as amended by section 1 ch. 170, S. L. 1919, has no application.

4. Quieting Title--Joining Action for Possession. Under section 466, C. S. 1921, an action for possession of real property may be joined with one to remove cloud and quiet title.

5. Taxation--Validity of Resale Tax Deed--Substantial Compliance with Statute.

A resale tax deed that complies substantially with section 9752, C. S. 1921, is valid upon its face, and is presumptive evidence of title.

Commissioners' Opinion, Division No. 3.

Error from District Court, Oklahoma County; T. G. Chambers, Judge.

Action by S. D. Rorem, Annie Doxie, and Samuel Doxie against M. McGrath to recover possession of real estate, remove cloud, and quiet title. Judgment for plaintiffs, and defendant brings error. Reversed.

H. A. Wilkinson and Roscoe Bell, for plaintiff in error.

Chastain & Harris and Warren K. Snyder, for defendants in error.

THREADGILL, C.

¶1 This action was commenced October 30, 1923, in the district court of Oklahoma county, by the plaintiff, S. D. Rorem, filing his petition against M. McGrath, claiming ownership and right to possession of lot 6 in block 8 of Townsend addition to the city of Edmond, by virtue of a quitclaim deed dated October 27, 1923. He alleged that defendant had taken possession of said lot without right or authority, and refused to give possession to plaintiff; that defendant claimed some interest, the nature of which was unknown to him, but whatever the interest, it was inferior to plaintiff's rights. He further alleged that he was the owner and in possession of the adjoining lot to No. 6, and had a gas filling station thereon; that he had been at great expense and labor in making suitable concrete driveways for the convenience of his filling station; that one of said driveways cuts across the corner of said lot No. 6, and defendant was threatening, and would, unless restrained by the court, destroy and remove said strip of said driveway, and would thereby greatly injure and damage plaintiff's business and prevent ingress and egress thereto. Thereupon, he prays judgment that defendant be summoned into court to show his interest in the property; that upon hearing plaintiff have judgment removing the claims of defendant as clouds from his title; that he have an injunction against the defendant claiming any interest in said lot or exercising any control over the same, and that he have judgment for possession. A copy of the deed, under which he claimed title, was attached to his petition. The court rendered a temporary restraining order. On November 10, 1923, defendant filed a motion to dissolve the temporary restraining order on the ground that the said order was not sustained by the facts of the petition; that said lot was his property and he was in the peaceable possession of same by virtue of a resale tax deed dated January 18, 1922; that plaintiff's quitclaim deed showed on its face to be illegal and void, "being champterous, and criminal." On the same date the motion to dissolve the temporary injunction was filed, a supplemental petition was filed by Annie Doxie and Samuel Doxie, in which they adopt the petition of plaintiff and state that they bring this action on behalf of said plaintiff as their grantee, and for his use and benefit, and for the reason that said plaintiff had never been in possession of said lot and they themselves have been out of the use and possession of the same for more than one year next preceding the commencement of the action, during which time they received no rents or profits therefrom, and that said defendant has been in possession of said lot during said time. Thereupon, they pray that the title be quieted in the plaintiff, S. D. Rorem. On November 26, 1923, the court overruled the motion to dissolve the temporary restraining order and made an order granting a temporary injunction. Defendant excepted. On November 30th defendant filed a demurrer to the petition and its amendment on the ground, principally, that the same did not state facts sufficient to constitute a cause of action. On September 6, 1924, this demurrer was overruled, and defendant accepted. Defendant was granted 20 days by his request, within which to elect to stand on his demurrer or to answer. Thereafter, on September 26, 1924, defendant filed his answer, consisting of a general denial, and further pleading that the deed given by the Doxies was champertous and void; that the action was not prosecuted in the name of the real party in interest; that he was the owner and in possession of said lot for more than a year prior to the commencement of the action, and personally received the rents and profits therefrom; that he had a tax deed to the lot which was duly recorded, and said deed had been of record for more than a year prior to the execution of the deed from the Doxies to plaintiff; that the Doxies placed him in possession of the lot, and thereafter made no demands of him for any interest in the same; that plaintiff knew, or could have known, of his title and interest at the time he obtained his deed from the Doxies and before he made his improvements on the adjoining lot. He further states that the action against him is unwarranted, fictitious, and oppressive, and he should have $ 100 as attorney's fee for defending the same. He attached a copy of his tax deed which shows to be, a "resale tax deed" dated January 18, 1922. This deed gave a summary statement of the sales proceeding, as was done in the "resale tax deed" in the case of Treese v. Ferguson, 120 Okla. 235, 251 P. 91. The plaintiffs filed a demurrer to the answer, which was sustained, except as to the general denial, and defendant excepted and elected to stand on his answer and refused to plead further, and gave notice of his intention to appeal, and was given 60, 3, and 3 days to prepare his record. The court set the case for trial on the merits for January 31, 1925, and the trial was had on February 21, 1925. The journal entry recites that the evidence was stipulated, and said stipulation was submitted to the court and the findings and judgment were made upon said stipulation. The court found the issues in favor of the plaintiffs; that the Doxies were entitled to judgment, quieting title to said real estate in them for the use and benefit of S. D. Rorem. The court held that the resale tax deed relied on by defendant was void upon its face, and should be canceled as a cloud upon the title of plaintiffs. The court held that the Doxies were entitled to the possession of the lot at the beginning of the action, and should have possession against the defendant and for the use and benefit of S. D. Rorem. A permanent injunction was awarded and a writ of assistance, and the cost taxed against the defendant. Defendant excepted, gave notice of intention to appeal, was given extension of time for preparing and serving case-made, which case-made was not prepared, but appeal has been taken by petition in error and transcript of the record.

¶2 Standing at the threshold of our consideration is the question of procedure to be disposed of in the plaintiffs' motion to dismiss the appeal. They contend that defendant cannot urge as error the action of the court in overruling his demurrer to the petition for the reason he did not appeal from such order within six months from the date it was made or within six months from the overruling of a motion for a new trial in which this error should have been stated. In support of this contention, we are cited to the case of Aultman & Taylor Machinery Co. v. Fuss, 86 Okla. 168, 207 P. 308. This case was written by Justice McNeill, and in the first paragraph of the syllabus the following rule is announced:

"When a defendant desires to present to this court as error the overruling of a demurrer to the petition, it may be presented by two methods: First, saving the proper exception and having the appeal lodged in this court within six months from the date of the order; second, by saving the proper exception and incorporating in the motion for a new trial the error of the trial court in overruling the demurrer and perfecting his appeal to this court within six months from the date of overruling the motion for a new trial."

¶3 This rule fixes two dates from which to reckon in taking an appeal for reviewing an order overruling a demurrer to the petition. If the appeal is lodged in this court within six months from...