Moppin v. Norton

• Decision Date: 13 January 1914
• Docket Number: Case Number: 3013
• Parties: MOPPIN et al. v. NORTON.
• Court: Oklahoma Supreme Court

1914 OK 24
137 P. 1182
40 Okla. 284

MOPPIN et al.
v.
NORTON.

Case Number: 3013

Supreme Court of Oklahoma

Decided: January 13, 1914

Syllabus

¶0 1. TRIAL--Demurrer to Defendant's Evidence. Whenever all the evidence and the reasonable and rational inferences and deductions therefrom in favor of the defendant, taken as true, will warrant a verdict in his favor, it is error for the court to sustain plaintiff's demurrer to such evidence.

2. TENANCY IN COMMON--Recovery of Land--Necessary Parties. One tenant in common may maintain an action for the recovery of real property against a third person; but his recovery is limited to such interest in the premises as he proves title in himself superior to that of defendants.

Error from District Court, Seminole County; Tom D. McKeown, Judge.
Action by Sam Norton against George Moppin and others. Judgment for plaintiff, and defendants bring error. Reversed and remanded.

J. A. Baker, for plaintiffs in error

Crump, Fowler & Skinner, for defendant in error

LOOFBOURROW, J.

¶1 In May, 1905, Minerva Moppin executed an instrument in writing in form a general warranty deed, whereby she conveyed to C. M. Rodman and Sam Norton 40 acres of land situated in the Seminole Nation. In April, 1910, Sam Norton, one of the grantees, commenced this action for the recovery of said real property; issues were joined, and the case tried in the district court of Seminole county.

¶2 Minerva Moppin testified: That this land was allotted to her. That she could not read or write. That her son, at the time this deed was executed, was in jail in Tecumseh, and that she wanted to obtain $ 100, with which to pay an attorney for services rendered in behalf of said son. That she went to Konawa to a notary public, Mr. Mathis. That she told him she wanted to make a mortgage for $ 100 to Mr. Norton. That she signed the instrument, and delivered it to another son, Lane Osborne, who took the instrument to Tecumseh, and delivered it to Norton. That afterward Norton came down to the place. She had a conversation with him. He looked over the land, and told her:

"The ground bad. I don't want your land. It has a lease on it, and I can't do anything with it without I buy it out, and that would cost me more than the land is worth, and you can pay me the money when you get it"

¶3 --to which she replied that she did not have any money, and that she would pay him when she could. That she never received any money from this transaction. That Norton did not claim that she had sold him the land. That he said he did not want it. That he said, "You pay me the...