Newton v. Barnes
| Citation | 1897 OK 89,49 P. 1074,5 Okla. 428 |
| Parties | NEWTON v. BARNES. |
| Decision Date | 30 July 1897 |
| Court | Oklahoma Supreme Court |
¶0 It appeared from the amended petition, answer, and reply upon which this case was heard that the plaintiff had been for four years preceding the commencement of the action an actual resident upon a part of the tract of 160 acres of land here contended for as a homestead, and in actual possession of 121 acres thereof, and that the defendant was residing upon a portion of the land, and in actual possession of 39 acres of it; that the defendant would, unless restrained by the court, continue to reside upon, improve, and cultivate a portion of the tract of land; and that, as it was alleged, he was trespassing upon the right of the plaintiff to the full and exclusive possession of all of said tract of land, and that he would, "unless restrained by the court, break out and destroy all the meadow and pasture land on the said tract"; and that the continued trespass thereon constituted an irreparable injury to the plaintiff, for the reason that the plaintiff had no adequate remedy at law; and declared that he "believed the defendant to be utterly insolvent," and that the "plaintiff would have no recourse in damages." The petition prayed for a mandatory injunction restraining the defendant, and all persons acting under him, from continuing to reside upon, improve, or cultivate any portion of said tract of land, and requiring him and all persons under him to remove from said tract of land within a reasonable time, and that he should be perpetually restrained and enjoined from using or occupying any portion of the land, or interfering with the full possession by the plaintiff of the whole tract of 160 acres. A demurrer of the defendant to the amended petition that (1) it did not state facts sufficient in law to constitute a cause of action against the defendant, and to entitle the plaintiff to a mandatory or any other injunction, and (2) that the court had no jurisdiction of the subject-matter, the title to the tract of land described therein being in the United States, and no final certificate or patent having been issued to the plaintiff, was by the court overruled, and the defendant permitted to answer. The defendant, by his answer, denied that the plaintiff was the equitable owner, or had any equitable or any other interest in the premises described in the petition, and denied any right of possession on the part of the plaintiff; set up a state of facts upon which he averred that he was at law entitled to have the patent for the land under the homestead laws of the United States; averred an utter failure of evidence on the part of the plaintiff in the land contest; set forth and charged facts which, if true, would have amounted to a fraud upon the rights of the defendant; averred that the rulings of the land department against the defendant were made under a mistake and misapprehension of both the law and the facts of the case, and without any valid evidence, and upon false and fraudulent statements of the plaintiff; and set forth facts charging that the land department had never acquired any jurisdiction over the defendant, had never made him a party to the proceedings in the land department, and that all the actions under the proceedings in the land department were illegal, and absolutely void. Upon the state of facts as recited, the defendant declared the equitable title and right to the land to be in himself; that by the rulings in the land department, and upon the mistakes and frauds aforesaid, he could not be devested of his constitutional right to a hearing and determination in this court upon the questions of law affecting the same, and applicable to the facts stated in the answer. The defendant averred that the plaintiff had come upon the land and taken possession of all except the 39 acres in question in the case, and throughout the last four years had been a trespasser upon and forcibly occupying all of the land except said 39 acres. Thereupon a mandatory injunction was issued. The plaintiff filed a joint demurrer and reply, demurring to the facts contained in the second and fourth paragraphs of the answer of the defendant, which averred the acts of fraud and perjury, and that by these acts the plaintiff had procured the cancellation of the defendant's entry, upon the ground that these averments did not constitute a defense to the facts alleged in the petition of the plaintiff, and for an answer denied the facts set out in the third paragraph of the answer. The court thereupon decreed that the defendant should be "restrained and enjoined from in any way interfering with the entire possession of the plaintiff to the land described," and "from residing upon, cultivating, pasturing, improving, or occupying any portion of the land mentioned," and undertook to order that the defendant should be permitted at any time within 60 days to remove his buildings and improvements, and to provide that he "might be permitted to reside upon said land for said period of sixty days," and "should have the right to use and occupy a tract of land not exceeding ten acres immediately surrounding his house, and should only be permitted during said period of sixty days to enter upon the land of which he had been in possession for the purpose of removing in a lawful and peaceable manner his improvements thereupon." A certified copy of a motion for review in the general land office, showing said motion had been finally overruled by the secretary of the interior, was filed in the case as evidence in support of the petition, showing that the motion for review had been finally overruled, and that the entry made by the defendant had been canceled. The plaintiff does not aver a patent from the United States. He makes out and stands upon an inchoate right to the land, as based upon the final order made by the secretary of the interior.
¶1 Upon this state of facts appearing upon the pleadings, the court below, having undertaken to give to the plaintiff possession of the 39 acres shown to be in the complete possession of the defendant, was sustained by the opinion of the court here. In this conclusion I cannot concur. I understand the case to be one in which the statutes of the territory afford a plain, adequate, and sufficient relief at law, in which the defendant is entitled to a jury; and I understand that, even in the absence of a special statute, the defendant would be entitled to a jury to try his right of possession by reason of that provision of the organic act (section 9) which provides that "the district courts shall have and exercise, exclusive of any court heretofore established, the same jurisdiction in all cases arising under the constitution and laws of the United States as is vested in the circuit and district courts of the United States." And it is provided by article 7 of the constitution of the United States that in suits at common law, where the value in controversy shall exceed $20, "the right of trial by jury shall be preserved and no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law." These provisions are limitations upon, and prescribe the jurisdiction of, the district courts of this territory and the supreme court of this territory, and they prescribe the right of trial by jury in all cases which at the time of the enactment of the constitution of the United States were suits at common law. It is therefore one of the guaranties of the constitution of the United States that "the right of trial by jury is preserved,"--that is, kept just as it was at the time of the enactment of that constitution,--and it is my understanding that the right of possession of real estate is one which, at the time referred to, was never otherwise put at stake than in a court of law, in which either party was entitled to a trial by jury. Among the authorities which are cited to the converse of the proposition are High, Inj. § 360, and note, and 2 Story, Eq. Jur. § 959. These authorities do not sustain the proposition contended for by the court, for, while it is stated in High, Inj. § 358, that if there is a "neglect to execute such decrees" it "will warrant a mandatory injunction to deliver possession," yet this proceeding will, according to the authority of this text writer, only be taken after "proceedings have been instituted to establish, in a court of equity, the title to real estate," and the authority upon which the passage is based, to wit, a citation from Garrettson v. Cole, 1 Har. & J. 373, is that "it is directed in certain cases by the aforesaid act of assembly, *** after a title to land has been established by the adjudication of a court of equity." And in confirmation of the position taken by the court here a further citation is made from the note to section 358, being an extract from 2 Story. Eq. Jur. § 959, to the effect that "a judicial writ or execution for possession of the property in controversy" will issue out of courts of equity to effectuate their own decrees. So far, then, the authorities upon which the court reached its present conclusion go to the extent of declaring that "when courts of equity, in pursuance of the aforesaid act of assembly," the character of which is not indicated, and "after the title to land has been established by the adjudication of a court,"--as, for example, in foreclosure proceedings,--and having acquired jurisdiction under some other ground and for some other purpose, admitted as a necessary ground of equity jurisdiction, "it sometimes effectuates its own decrees" by writs for possession of the property in controversy. No conclusion can be drawn from these authorities that a court of equity has ever taken the initiative solely for the purpose of delivering the possession of real estate from one in whom it has been complete for years to...
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