Rock Island Improvement Co. v. Davis

• Decision Date: 12 June 1945
• Citation: 159 P.2d 728,195 Okla. 513,1945 OK 198
• Court: Oklahoma Supreme Court
• Parties: ROCK ISLAND IMPROVEMENT CO. v. DAVIS et al. SAME v. HOYT et al.

1945 OK 198

159 P.2d 728

195 Okla. 513

ROCK ISLAND IMPROVEMENT CO. v. DAVIS et al.

SAME v. HOYT et al.

Supreme Court of Oklahoma

Decided: June 12, 1945

Syllabus

¶0 1. CHAMPERTY AND MAINTENANCE-Grantee in champertous deed suing to recover lands entitled to have made party plaintiff his grantor or legal representatives.

A grantee who holds deed made in violation of champerty statute, 21 O. S. 1941 § 548, may maintain action to recover lands conveyed in such deed in his name and the name of his grantor, and on objection by adverse party to such grantee's maintaining such action in his name he may move to have his grantor made party plaintiff, or if dead, his legal representative, and it is not error for the trial court to grant such motion when timely made.

2. ABATEMENT AND REVIVAL-Failure to revive action within year after death of party merely bars further prosecution of particular action.

The failure to revive an action within a year after the death of a party is only a bar to the further prosecution of the particular action, and not an absolute bar to the recovery.

3. LIMITATION OF ACTIONS-Amendment relating back to filing of original petition as concerns question of limitation.

Suit was commenced by the grantee in a champertous deed in his own name and in the name of the unknown heirs of his deceased grantor and subsequently the administrator of the deceased grantor was made a coplaintiff by amendment; such amendment is in this case held to relate back to the filing of the original petition as concerns the question of limitations, subdivision 4, title 12 O. S. 1941 § 93.

4. EXECUTORS AND ADMINISTRATORS-Interest in land remaining to grantor in champertous deed and his legal representatives as sufficient basis for appointment of administrator of estate of nonresident decedent

The interest in land remaining to the grantor in a champertous deed and his right and that of his legal representatives to maintain an action for the recovery thereof is a sufficient claim or right of action to support a judgment denying the vacation of appointment of administrator of estate of nonresident decedent theretofore made in the county where such land is situated.

5. SAME-APPEAL AND ERROR-Conclusiveness of general finding of trial court denying application to vacate appointment of administrator.

Upon hearing application to vacate the appointment of administrator for the estate of a nonresident deceased person based upon claim that deceased left no assets in the county of appointment and fraud upon the court, the general finding of the trial court denying such application will not be disturbed unless incompatible with the whole evidence.

6. TAXATION-Certificate tax deed based on notice to owner solely by piblication which did not comply with statute held void and not subject to one-year statute of limitation.

Where there is total omission to make affidavit to obtain service by publication, and to make affidavit of mailing notice or excuse thereof, as provided by 68 O. S. 1941 § 451 and related statutes, a certificate tax deed based upon notice to the owner solely by publication is void for jurisdictional defects and is not subject to the one-year statute of limitations, 68 O. S. 1941 § 455.

Appeals from District Court, Oklahoma County; Frank P. Douglass, Judge.

From adverse judgments in two cases, the Rock Island Improvement Company appeals. In one case J. C. Davis et al. were plaintiffs, and in the other the Rock Island Improvement Company sought vacation of appointment of Frederick J. Hoyt as special administrator of estate of E. M. Bissell, deceased. Appeals consolidated and judgments affirmed.

W. R. Bleakmore, W. L. Farmer, John Barry, and Robert E. Lee, all of Oklahoma City, for plaintiff in error.

James S. Twyford, Solon W. Smith, and William J. Crowe, all of Oklahoma City, for defendants in error.

WELCH, J.

¶1 This is an action in the nature of ejectment and to quiet title, consolidated with another as hereafter shown. Defendant's title is based upon a certificate tax deed.

¶2 One E. M. Bissell was the former owner of the two city lots involved. On March 17, 19 20, one Pearl Rusche moved into the small house located thereon, having purchased tax sale certificates thereon. On May 4, 1921, a certificate tax deed was issued to her. She remained in possession until she conveyed the property to Choctaw, Oklahoma, & Gulf Railroad Company in 1929, when she delivered possession to said railway company. Defendant below, plaintiff in error here, claims certain oil and gas rights through subsequent conveyances from the railway company. The railway company was not a party to the suit.

¶3 On November 5, 1931, Bissell quitclaimed the property to the grantor of plaintiff Davis. The quitclaim deed to Davis is dated November 7, 1931, and these quitclaim deeds were recorded March 20, 1935.

¶4 On January 23, 1932, Bissell filed suit in the district court of Oklahoma county to accomplish substantially the same as is sought in the present suit. That suit was never tried, and on November 28, 1933, said Bissell died. That cause was not revived, and was on March 20, 1935, dismissed. The present suit was filed on said date, to wit, March 20, 1935.

¶5 On January 21, 1938, by order and permission of the court, Frederick J. Hoyt, as special administrator of the estate of E. M. Bissell, deceased, was made a coplaintiff in this action.

¶6 Trial resulted in judgment for plaintiffs, and defendant has appealed.

¶7 Defendant first contends:

"The deeds of defendant in error, J. C. Davis, were given in violation of the statutes of Oklahoma relating to champerty and because thereof he cannot maintain this action."

¶8 In that connection it points out that plaintiff must recover, if at all, on the strength of his own title, and points out further that the deeds under which Davis claims are void as champertous. We think the facts and the cited authorities support that view, but that does not dispose of the present matter because of the fact that herein the special administrator of the estate of the grantor in such deeds is a party plaintiff. The following is held in paragraph 1 of Crawford v. Lefever, 177 Okla. 508, 61 P.2d 196:

"A grantee who holds deed made in violation of champerty statute, section 1940, O.S. 1931, may maintain action to recover lands conveyed in such deed in his name and in the name of his grantor, and on objection by adverse party to such grantee's maintaining such action in his name he may move to have his grantor made party plaintiff, or if dead, his legal representative, and it is not error for the trial court to grant such motion when timely made."

See, also, Slyman v. Alexander, 126 Okla. 232, 259 P. 224.

¶9 Defendant next contends as follows:

"The claim of defendants in error is barred for the reason that the case at bar consists of an attempt to revive cause No. 72547 in the district court of Oklahoma county, which cause of action is barred by the statutes of Oklahoma requiring the revivor of a plaintiff's action, without the consent of the defendant, to be perfected within the period of one year from the death of the plaintiff. That the present action is therefore barred by those statutes it being merely and simply a duplication of the old case that was barred when the present case was filed."

¶10 In support thereof it cites the statute on revivor, Glazier v. Henebuss, 19 Okla. 316, 91 P. 872, and Chouteau v. Hoss et al., 118 Okla. 76, 246 P. 844. The present suit is not a continuation of the suit filed in 1932, but is a new action filed in 1935. In State ex rel. Shull, Bank Com'r, v. McLaughlin, 159 Okla. 4, 12 P.2d 1106, it was held in paragraph 1 of the syllabus as follows:

"The failure to revive an action within a year after the death of a party is only a bar to the further prosecution of the particular action, and not an absolute bar to the recovery."

¶11 To the same effect is Griesel, Ex'r, v. Fabian, 184 Okla. 42, 84 P.2d 634. These cases are controlling in that regard.

¶12 Defendant also contends as follows:

"The action insofar as the administrator is concerned is barred by the fifteen-year statute of limitations of Oklahoma. Also his appointment was void and a fraud on the court."

¶13 Two questions are thereby presented. The limitations question is presented upon the theory that Hoyt, the administrator, is the only person who might properly maintain the present action, and that since he did not become a party until January, 1938, he is barred by the 15-year statute of limitations, subdivision 4, of 12 O.S. 1941 §93.

¶14 Though there is some controversy of fact as concerns adverse possession, our conclusion is based upon the assumption that Rusche and her privies held such adverse possession from the date of her tax deed, May 4, 1921.

¶15 The plaintiffs point out that the present case was filed in 1935, and within 15 years from Rusche's possession, under color of title, to wit, May 4, 1921; that the present petition when filed contained the following:

"Plaintiff further states that he is informed and believes that E. M. Bissell is dead, he having died, intestate, in the month of November, 1933, and that the names of his heirs are to plaintiff, at this time, unknown, and plaintiff hereby elects to maintain this cause of action in the name of said heirs of E. M. Bissell, deceased, and of A. Bissell, the grantor of this plaintiff, all for the use and benefit of this plaintiff."

¶16 It is also shown that Hoyt as administrator was added as a coplaintiff on January 21, 1938, and it is contended that the making of Hoyt a coplaintiff by amendment relates back to the filing of the original petition. They cite M., K. & T. Ry. Co. v. Lenahan, 68 Okla. 73, 171 P. 455; Mostenbocker v. Shawnee Gas & Electric Co., 49 Okla. 304, 152 P. 82; Polson v. Revard, 104 Okla. 279, 232 P. 435; West Chester Fire Ins. Co. v. Federal Nat. Bank, 135 Okla. 47, 273 P. 889; U. S. Fire Ins. Co. v. Whitchurch, 138 Okla. 182, 280 P. 834, and various texts. The...