Purcell v. Barnett

• Decision Date: 09 January 1912
• Docket Number: Case Number: 1449
• Parties: PURCELL v. BARNETT et al.
• Court: Oklahoma Supreme Court

1912 OK 61

121 P. 231

30 Okla. 605

PURCELL v. BARNETT et al.

Case Number: 1449

Supreme Court of Oklahoma

Decided: January 9, 1912

Syllabus

¶0 1. MORTGAGES--What Law Governs. B. and his wife on October 16, 1906, for borrowed money, executed to T., as trustee, their deed of trust to certain real estate in the then Indian Territory. Default was made in payments, and the trustee by virtue of the power of sale in said trust deed advertised and sold the premises on January 31, 1908, to M., who, in turn, conveyed them to P., the plaintiff in error. M. was never in possession, and his transfer to P. was also subsequent to statehood. The deed of trust contained a provision that, in case of the sale of the premises by the trustee under the power contained on said trust deed, the relation of landlord and tenant should thereafter exist between the trustee's grantee and his grantors. P. brings ejectment against B. and wife. The trial court held that, inasmuch as M. had never been in possession and the conveyance by him to P. occurring subsequent to statehood, sec. 2215, Comp. Laws 1909, rendered such conveyance null and void. Held: The trust deed having been executed by B. and wife prior to statehood, the rights of the parties thereto were fixed and determined by the laws of Arkansas in force in the Indian Territory prior to statehood.

2. SAME--Requisites and Validity--Relation of Parties. The provision in said deed of trust that in case of default, and after sale, the relation of landlord and tenant should exist between trustee's grantees and his grantors, is valid and binding on the parties.

3. CHAMPERTY AND MAINTENANCE--Grants of Land Held Adversely--Offense. Sec. 2215, Comp. Laws 1909, does not apply under the facts in this case.

4. MORTGAGES--Rights of Parties--Hostile--Adverse Possession by Grantors in Trust Deed. Before B. and wife could deny M.'s title by adverse possession, they must have delivered up to him the possession they had given him under and by virtue of their contract and re-established anew their possession.

5. LANDLORD AND TENANT--Adverse Possession of Tenant. The general rule is that the possession of a tenant, no matter how long continued, is not adverse, but is in subordination to the title of the landowner, and will not operate to confer a title upon the tenant, unless something has occurred to convert the holding from a friendly to a hostile possession.

Error from District Court, Hughes County; John Caruthers, Judge.

Action in ejectment by Mary Purcell against Maria Barnett and another. Judgment for defendants, and plaintiff brings error. Reversed and remanded, with instructions.

This action was begun on April 8, 1909, by Mary Purcell, plaintiff in error, who will hereinafter be designated as plaintiff, against Maria Barnett and Joseph Barnett, defendants in error, hereinafter designated as defendants, to obtain possession of the W. 1/2 of the S.E. 1/4 of section 21, township 7 N., range 10 E., in Hughes county, Okla., and for damages for the wrongful detention thereof. Defendants answered and admitted that they were residents of Hughes county, and that the land was correctly described in the petition, but deny that plaintiff is the owner or entitled to the possession of the same. They allege that they are in the possession of said land, and that said possession is lawful, and further say that any pretended claim of title by plaintiff to said lands is void, and of no effect, and was purchased by plaintiff with full notice and actual knowledge of defendants' rights to said land, and, if said claim of plaintiff is a cloud on defendants' title, they ask that it be removed and canceled. Upon the issues thus joined, trial was had to a jury in July, 1909. At the close of the testimony the court instructed the jury as follows:

"Gentlemen of the jury, the court instructs you in this case that on account of this provision of the statutes of this state, which is now in force as follows, to wit: 'Every person who buys or sells, or in any manner procures, or makes or takes any promise or covenant to convey any pretended right or title to any lands or tenements, unless the grantor thereof, or the person making such promise or covenant has been in possession, or he and those by whom he claims, have been in the possession of the same, or the reversion and remainder thereof, or have taken the rents and profits thereof for the space of one year before such grant, conveyance, sale, promise or covenant made, is guilty of misdemeanor'--and it appears in this case by the undisputed facts disclosed in the record that at the time Taft made the deed to Mason, and Mason to Purcell, the plaintiff, he or Purcell, was not in possession of the land in question, nor had not taken the rents and profits thereof for the space of one year before such deed was made, and that the defendants were in the possession of the premises in question in this lawsuit at that time, under color of title, the plaintiff cannot prevail in this action, and the court instructs you to bring in a verdict for the defendants."

Whereupon the jury returned a verdict in favor of the defendants and against the plaintiff. A motion for new trial was filed, overruled, and time given to make and serve a case, and the plaintiff brings this appeal to review and reverse said judgment. It appears from the record that on March 16, 1906, the defendants, Maria Barnett and Joseph Barnett, her husband, executed to Harry Lee Taft as trustee their two certain deeds of trust, each upon the land in question; the consideration in the first deed of trust being $ 700 borrowed money, that of the second deed of trust being $ 77.60 also borrowed money. The last of the two deeds of trust was foreclosed by virtue of the power of sale in said deed of trust contained. Among other covenants of the said last deed of trust are the following:

"If there shall be a failure to pay said principal or interest or any part thereof, or of any notes given in renewal of the notes herein mentioned, when the same, or any part thereof, becomes due, or to comply with any covenant, agreement, or condition of this indenture, then the whole of the indebtedness secured hereby shall, without notice, at the option of the trustee or legal holder or holders of said note, or either of them become immediately due and payable and the said trustee, acting for himself, or at the request of such legal holder, may proceed to sell the property herein described, or any part thereof, at public vendue to the highest bidder for cash, first giving twenty days public notice of the time, terms and place of sale, and of the property to be sold, by advertisement in some newspaper, published in the district (or should Indian Territory become a state then the county) where the said lands or a part thereof are situated; and upon such sale shall execute and deliver the necessary deed, or deeds in fee simple of the property sold to the purchaser or purchasers thereof, and receive the proceeds of said sale. * * * And the party of the first part further agrees that if default be made in the payment of said note or any part thereof, or of the interest thereon or any part thereof, when the same becomes due, whether by the terms of the said note or because of the exercise of their option by the trustee or the legal holder or holders of said note to declare the same due as herein provided, it shall be lawful for said party of the second part, in his own name or otherwise or for the owner of the note hereby secured, to bring an action in any court having jurisdiction thereof for the foreclosure of this mortgage, and the costs, abstractor's, and attorney's fees thereby incurred shall be a further lien upon the security herein mentioned. It is expressly understood and agreed between the parties hereto that in case of sale hereunder, either under the power here given or through proceedings of chancery, the relation of landlord and tenant shall thereafter exist between the grantors herein, or those claiming under them, and the purchaser or purchasers at such sale, and the tenancy shall be one from month to month at a rental value of $ 2.40 per month, payable monthly in advance to the purchaser or purchasers, the first month's rent to be due the day following the day of the sale. The sole consideration of this deed of trust being money loaned to grantors as aforesaid, they hereby, under the act of March 17, 1879, as amended by the government from the laws of Arkansas, waive all right of appraisement or redemption."

Default was made in the payment of the first note secured by the last deed of trust, for which breach of the conditions of said deed of trust the trustee elected to and did declare the whole of said notes at once due, and did, after giving proper notice and advertisement, proceed to sell in accordance with the power given in said deed of trust the mortgaged property at public auction to the highest bidder, M. S. Mason, and thereafter, on the 31st day of January, the trustee executed his trustee's deed for the land in controversy to the said Mason. Mason sold this land by warranty deed to Mary Purcell, the plaintiff. It was admitted that Mason had not been in actual possession of the premises at or before the time of the execution of his aforesaid deed to Mary Purcell, the plaintiff.

Warren & Miller and Clayton & Clayton, for plaintiff in error.

Wright L. McFall, for defendants in error.

ROBERTSON, C.

¶1 The only question involved in this controversy is the correctness of the instruction of the court as given below. The court, after reading to the jury section 2215, Comp. Laws 1909, continued:

"It appears in this case by the undisputed facts disclosed in the record that at the time Taft, the trustee, made the deed to Mason and Mason to Purcell, the plaintiff, he or Purcell was not in possession of the land in question, nor had not taken the rents and profits thereof for the space of one year before such deed was made,

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