Reed v. Whitney

• Court: Oklahoma Supreme Court
• Writing for the Court: CORN, Justice.
• Citation: Reed v. Whitney, 169 P.2d 187, 197 Okla. 199, 1945 OK 354 (Okla. 1945)
• Decision Date: 18 December 1945
• Docket Number: 31761.
• Parties: REED v. WHITNEY.

169 P.2d 187

197 Okla. 199, 1945 OK 354

REED v. WHITNEY.

No. 31761.

Supreme Court of Oklahoma

December 18, 1945

Rehearing Denied Jan. 22, 1946.

Application for Leave to File Second Petition for Rehearing Denied June 4, 1946.

Appeal from District Court, Seminole County; Bob Howell, Judge.

Action by Eulahmae Reed against E. W. Whitney and Gypsy Oil Company to quiet title, and for payment to her of impounded income from oil produced from land. Judgment for defendant Whitney and plaintiff appeals.

Reversed and remanded with directions to enter judgment for plaintiff.

DAVISON and ARNOLD, JJ., dissenting.

Syllabus by the Court.

1. In the granting clause of a deed the words, 'all their right, title and interest in and to,' preceding the description of the real property, limits the grant to the present interest of the grantor, and the covenant of warranty refers only to the right, title and interest of the grantor in the premises at the time of the conveyance. Kimbro v Harper, 113 Okl. 46, 238 P. 840, is overruled in so far as it conflicts herewith.

2. Mere possession of a tenant in common, no matter how full and complete, does not operate as an ouster of his cotenant, or amount to adverse possession as against the claim of his cotenant. There must be something to show a denial or repudiation of his cotenant's rights, or the possession will be deemed to be held in subordination to the rights of the cotenant.

3. Where an attorney purchased certain interests in an allotment of Indian land, with his own funds, and took title thereto in himself, and procured the approval of the conveyance by the county court, and thereafter conveyed such interests to another, who was not obligated to purchase the same, such circumstances, in the absence of strict proof to the contrary, would not establish a fiduciary relation which would estop the attorney from purchasing other interests in the same land for himself.

R. J. Roberts and Hugh Roff, both of Wewoka, for plaintiff in error.

Geo. C. Crump and H. W. Carver, both of Wewoka, for defendant in error.

CORN Justice.

This is an appeal from a judgment of the District Court of Seminole County decreeing title to 1/24 interest in certain land in E. W. Whitney, grantee of J. N. Harber, the record title being in Ray W. Reed, plaintiff's decedent.

On September 10, 1935, the plaintiff, plaintiff in error herein, filed her petition in the Superior Court of Seminole County, the cause later being transferred to the District Court of said County, against E. W. Whitney and the Gypsy Oil Company, praying for a decree adjudging her to be the owner of an undivided 1/24 interest in the Mosar 120 acre allotment, the land in question, and praying that the title to her interest be quieted against the defendants, and for payment to her of impounded income from oil produced therefrom.

Plaintiff alleged in her petition that Arstago Harjo inherited the 1/24 undivided interest in the Mosar 120 acre allotment, and that on October 8, 1918, Arstago Harjo and wife conveyed said interest by warranty deed to Ray W. Reed, who went into possession and remained in possession thereof until his death, December 14, 1918, leaving as his sole beneficiary under his will, his wife, Eulahmae Reed, the plaintiff, who is tenant in common with the owners of the other undivided interests. That the Gypsy Oil Company, under oil and gas lease from the owners, was producing oil and gas from the premises, and that the accruals to said 1/24 interest amounted to approximately $2,500, for which she prayed judgment.

The petition further states that the defendant, E. W. Whitney, claims title to said undivided 1/24 interest by reason of a deed to him from J. N. Harber, conveying 'all their right, title and interest' in the land, but does not include the interest in question.

E. W. Whitney filed an answer and cross petition denying that the plaintiff has any interest in the land or was ever in possession thereof by reason of the deed from Arstago Harjo to Ray W. Reed, for the reason that Ray W. Reed was a practicing attorney, and was employed by J. N. Harber to acquire the outstanding title held by various heirs for the said J. N. Harber; that the said Ray W. Reed took the title to himself and secured the approval of the conveyance in the probate court, as he had done in acquiring the other interests for J. N. Harber, and that he made, executed and delivered through the Farmers National Bank of Wewoka by sight draft drawn on J. N. Harber at the First National Bank at Seminole, a quitclaim deed covering the interest in question, attaching a sight draft for $79 for the agreed cost, expenses and fee for services rendered. That the deed was lost in transit, as far as answering defendant Whitney has been able to ascertain, and that if any amount be due the plaintiff, it does not exceed the sum of $79. That subsequent to the discovery of the loss of the deed by J. N. Harber, he tendered the plaintiff $79 and interest and expenses, making a total of $92, and plaintiff executed a quitclaim deed and delivered it to Guy Sweatte for delivery to J. N. Harber upon payment of the $92; that Sweatte demanded $100; that E. W. Whitney, on behalf of J. N. Harber, offered $92, but refused to pay $100, and Sweatte destroyed the deed. Answering defendant, E. W. Whitney, prays that plaintiff be required to execute a quitclaim deed to J. N. Harbor, or upon refusal to do so, that the title be quieted in him, the said E. W. Whitney.

Said defendant, E. W. Whitney, further states in his amended answer that on May 31, 1917, Ray W. Reed and Eulahmae Reed, his wife, made, executed and delivered to J. N. Harber their warranty deed, conveying all their right, title and interest in and to the property involved in this action; that thereafter, on December 29, 1923, J. N. Harber and wife conveyed said property to the defendant, E. W. Whitney, by warranty deed; that said deed conveyed all interest, except a 1/12 interest previously conveyed by J. N. Harber to A. S. Kouri.

The first proposition presented and argued in the briefs of the parties is the question as to whether the deed from Reed to Harber may be construed as containing a warranty, which causes other interests subsequently acquired by the grantor to pass to the grantee under the doctrine of after acquired title.

The plaintiff contends that grantors at the time held title to 23/24 undivided interest in the land described; that the words, 'all their right, title and interest in and to,' preceding the legal description of the land conveyed, were qualifying words, which expressly limited the grant to the interest in the land then held by the grantors. The defendant contends that such words do not cut down the interest conveyed to any limited amount, but warrants the title to the entire interest in the land covered by the legal description.

The contention of the defendant is without merit where the record shows that the grantor did not have title to the entire interest in the land, and the grantee knew it, and it was not the intention of the parties that the deed should convey more than the grantor had in the land.

The statute provides that a warranty deed 'shall convey to the grantee, * * * the whole interest of the grantor in the premises described, and shall be deemed to be a covenant * * * that at the time of making the deed he is legally seized of the indefeasible estate in fee simple of the premises and has good right and full power to convey the same, * * *.' 16 O.S.1941 § 19.

The covenant of warranty applies to the premises described in the granting clause of the deed. The warranty is that the grantor has the very estate in quality and quantity which he purports to convey. Joiner et al. v. Ardmore Loan & Trust Co., 33 Okl. 266, 124 P. 1073; Faller v. Davis et ux., 30 Okl. 56, 118 P. 382, Ann.Cas.1913B, 1181; Delvin on Deeds, 3d ed. Sec. 855. It applies to the estate of the grantor in the premises described. Hilsmeyer v. Blake, 34 Okl. 477, 125 P. 1129, 1130.

The deed in question conveys the premises described as 'all their right, title and interest,' and the warranty is of the right, title and interest conveyed. The habendum clause cannot be used to enlarge the estate described in the granting clause, which constitutes the premises of the deed, and to which the habendum clause refers.

In 7 Thompson on Real Property, p. 220, it is said in Sec. 3525:

'A conveyance in terms of the grantor's right, title and interest is not enlarged in scope by a general covenant, but such covenant must be limited to fit the estate and interest of the grantor. 'It has been uniformly held that a conveyance of the right, title and interest of the grantor vests in the purchaser only what the grantor himself could claim, and the covenants in such deed, if there were any, were limited to the estate described.'

'Even if the grant is of certain land described, with an explanation that the grantor means to convey only his right, title and interest in it, a general warranty of title is restricted to the grantor's interest; * * *.'

Sec 3523. 'The covenant of warranty applies to the estate conveyed, and can not enlarge that estate. If the deed conveys merely the grantor's interest in the land, a covenant of general warranty in it is limited and...