Perry v. Norris

• Decision Date: 20 October 1936
• Docket Number: Case Number: 26458
• Citation: 178 Okla. 7,1936 OK 652,62 P.2d 70
• Parties: PERRY et al. v. NORRIS et al.
• Court: Oklahoma Supreme Court

1936 OK 652

62 P.2d 70

178 Okla. 7

PERRY et al. v. NORRIS et al.

Case Number: 26458

Supreme Court of Oklahoma

Decided: October 20, 1936

Syllabus

¶0 1. VENDOR AND PURCHASER - Possession of Land as Giving Notice to World of Actual Interest of Possessor.

The possession of real property carries with it the presumption that the possession of the occupant is rightful, and it is the duty of those dealing with others than the party in possession regarding such property to as certain the claim of the party in possession The open, actual possession of such property gives notice to the world of just such interest as the possessor actually has therein.

2. APPEAL AND ERROR - Review of Equity Case - Conclusiveness of Findings.

In an equity action, where the case is submitted to the trial court and requested findings of fact are made, this court will not reverse the judgment based upon such findings of fact unless such findings and judgment are against the clear weight of the evidence.

Appeal from District Court, Coal County; Gaylord R. Wilcox, Assigned Judge.

Action by P. A. Norris et ux. against P.C. Perry and others to quiet title. From a judgment for the plaintiffs, defendants appeal. Affirmed.

Frank E. Lee and Wimbish & Wimbish, for plaintiffs in error.

Denver Davison and Hayes, Richardson, Shartel, Gilliland & Jordan, for defendants in error.

PER CURIAM.

¶1 This action was commenced by P.A. Norris and Josephine Norris, husband and wife, but inasmuch as Josephine Norris, the wife of P.A. Norris, is not necessary to a decision of the cause, and as the controversy arose around land which plainly belonged to the plaintiff P.A. Norris, the parties will hereinafter be referred to as plaintiff and defendants.

¶2 On the 22nd day of February, 1934, plaintiff filed his action alleging that on November 1, 1932, plaintiff executed a warranty deed to N.T. Heard covering the following described real estate:

"The S. 1/2 of the S.E. 1/4 of the S.E. 1/4 of section 30, and the S.W. 1/4 of the S.W. 1/4, and the W. 1/2 of the S.E. 1/4 of the S.W. 1/4, and the S.E. 1/4 of the S.E. 1/4 of the S.W. 1/4, and the S.W. 1/4 of the S.E. 1/4 of section 29, all in township 2 north, range 8 east, of the Indian Meridian."

¶3 That N.T. Heard paid nothing as a consideration for said deed and on said date or immediately thereafter N.T. Heard executed a quitclaim deed to the plaintiff; that the warranty deed was recorded, but the quitclaim deed was never recorded and that the same has been lost; that subsequent to the execution of the two deeds and on or about the 30th day of September, N.T. Heard died leaving as his heirs Ralph C. Heard, otherwise known as R.C. Heard, Daisy Heard. N.T. Heard, Jr., Lois Webster, formerly Lois Heard, Daniel Heard, and Marion S. Heard; that these latter parties all conveyed to Ralph C. Heard, who in turn conveyed to the defendant Robert J. Wimbish, who in turn conveyed to the defendants Emanuel and Hatcher, and that there was also executed by Ralph C. Heard to P.C. Perry an oil and gas lease.

¶4 Plaintiff prays that these instruments all be canceled and that the title be quieted in him. Upon a trial to the court without a jury, after making elaborate findings of fact and conclusions of law, the court found for the plaintiff and against the defendants, from which order and judgment so quieting the title defendants prosecute this appeal.

¶5 The evidence reveals that P.A. Norris was president of the First National Bank of Ada, Okla., and that N.T. Heard had for a long time been his employee; that on the date above mentioned two deeds were executed, the first being a warranty deed to N.T. Heard covering the above-described premises and the second a quitclaim deed back from N.T. Heard to the plaintiff; that no consideration was paid by N.T. Heard and that he took only the bare and naked legal title, which he conveyed by said quitclaim deed; that at all times P.A. Norris has been in the open, actual, and notorious possession of the property by tenants; that the tenants all executed leases to the said P.A. Norris and that N.T. Heard looked after the collection of the rents and paid the rents to the plaintiff after collected; that sometimes N.T. Heard would make the collections of the rents and that sometimes the tenants would pay directly to the plaintiff; that in the year 1933 John Thomason was tenant on said promises and also operated the Oaks Dairy. The Oaks Dairy consisted of some land adjoining the 130 acres in question and under Thomason it and the land in question was operated under a common lease. In the year 1934, the elder Griffin was tenant at the Oaks Dairy and J.T. Griffin, the son, was tenant on the land in question. One McKinney signed the lease with the son of the elder Griffin, but the testimony shows he never really was a tenant in possession. Thomason moved on the place in October, 1932, and remained thereon for the remainder of that year and for the year 1933; that in April, 1933, N.T. Heard died. There was a mortgage on the place for the sum of $2,800 to the Phoenix Joint Stock Land Bank of Kansas City, Mo.; that the reason for the execution of the deeds aforesaid to N.T. Heard was that the plaintiff anticipated there would be a foreclosure, and as the land was not worth the mortgage indebtedness, he did not wish a suit in foreclosure to be brought against him while he was president of said bank.

¶6 The testimony reveals that soon after the death of N.T. Heard one Selby, as an agent for the loan company, came to plaintiff to ascertain if he wished to place the loan in good standing, and that Selby thereafter went to Ralph C. Heard, who appears to have been acting for the Heard heirs. Defendants offered in evidence the statement of Selby that Norris intended to have nothing further to do with the place and that Selby so informed Ralph C. Heard, who communicated the information to Wimbish. The court refused to receive these statements. Ralph C. Heard then went to Robert J. Wimbish and advised Wimbish of the condition of the title and sought to inquire as to whether the loan company could obtain a judgment against the Heard heirs. Defendant Wimbish then made the proposition to Ralph C. Heard that if he would obtain deeds from the remainder of the heirs, he, Wimbish, would pay Ralph C. Heard $75 for the title to the land; that Ralph C. Heard obtained warranty deeds from the remaining heirs of N.T. Heard and then executed a warranty deed to Robert J. Wimbish; Wimbish paid Ralph C. Heard $75 for said title; prior to the execution of this deed to Wimbish, Ralph C. Heard executed an oil and gas lease to P.C. Perry, of Oklahoma City, who paid therefor $650; $400 of this was paid to the Phoenix Joint Stock Land Bank of Kansas City, Mo., to bring the loan out of delinquency and place it in good standing; $50 was paid to the loan company for an abstract by Robert J. Wimbish and $131.75 was paid to Emanuel and Hatcher as commission for selling the oil and gas lease to P.C. Perry. There was then executed by Robert J. Wimbish a warranty deed under date of January 22, 1934, to W.M. Emanuel and Oscar Hatcher reserving 5/13 of the oil and gas interest to Robert J. Wimbish. All of these exhibits are attached to the plaintiff's petition and properly described in sequence by letter.

¶7 J.T. Griffin, as a witness for the plaintiff, testified that he had a contract for the land in question for the year 1934; that he moved there about Christmas time of 1933 and raised a little crop and paid rent to the plaintiff; that on the 28th day of February, 1934, defendants Hatcher and Robert J. Wimbish came out to his place, that Robert J. Wimbish had been out there prior to that time; that witness told Wimbish he was renting from Norris; that he had always paid his rent to Norris; R.W. Griffin, the father of J.T. Griffin, testified he rented the farm with W.L. McKinney from one Brent, who was the agent of Norris after Heard died. He testified that he had always paid his rent to Norris; that he moved out there in January, 1934; that Mr. Wimbish and Mr. Hatcher came out there and he told them the place belonged to Mr. Norris; that was about the 10th day of January, 1934; that at that time the boy, meaning J.T. Griffin, signed a paper for them; that they said it was for oil and gas lease and showed that the boy was a tenant; that Wimbish came by himself first and about the last of January they both came out there and said that they had bought the lower part of the farm from the Heard heirs. Mrs. Ada Griffin, as a witness, testified that she told Hatcher that Mr. Norris owned the place, but that Mr. Brent had charge of the renting of the place. The testimony further reveals that Robert J. Wimbish went to the home of the son of J.T. Griffin and obtained from him a release of tenancy or a disclaimer of tenancy, which was sent to P.C. Perry at Oklahoma City on or about the date of the execution of the oil and gas lease to P.C. Perry. P.C. Perry testified that he obtained this disclaimer or release by the tenant and that it contained a simple statement that the tenant had no interest in the premises and claimed no interest therein. P.C. Perry testified that he never saw this place and that he knew nothing about any lawsuit prior to the date of the service of summons upon him after the commencement of this action, and that he made no inquiry of the tenant as to whose tenant he was or as to who his landlord was. Robert J. Wimbish testified that sometime in the fall of the year 1933, Ralph C. Heard came to him and gave him a history of this land and wanted to know whether the loan company could get a personal judgment against the heirs of N.T. Heard; witness corresponded with the Phoenix Joint Stock Land Bank and obtained information as to the amount of the loan and the past indebtedness due, and offered, in order to straighten up the loan and prevent a foreclosure, to pay $75 for a deed to the place if Ralph C. Heard would obtain deeds from the...