Smith v. Braley

• Decision Date: 15 July 1919
• Docket Number: 9441.
• Parties: SMITH et al. v. BRALEY et al.
• Court: Oklahoma Supreme Court

184 P. 586

76 Okla. 220, 1919 OK 221

SMITH et al. v. BRALEY et al.

No. 9441.

Supreme Court of Oklahoma

July 15, 1919

Rehearing Denied Oct. 21, 1919.

Syllabus by the Court.

Deeds duly recorded may be received in evidence by the introduction of the original records, or by copies duly certified by the officer having the legal custody of such records under his official seal, if he have one, with the same effect as the originals, when the originals are not in the possession or under the control of the party desiring to use the same.

In an action in ejectment, a former judgment of a court of competent jurisdiction, between the same parties and involving the same subject-matter, is conclusive as to the respective parties and those in privity with them, not only as to every matter involved in the former case, but as to every matter germane to the issues, which could, or might have been, litigated and determined therein, whether the same was pleaded or not; but such judgment does not have the effect of settling conflicting or hostile claims between coplaintiffs or codefendants, unless such claims were brought into issue and were actually litigated and adjudicated.

Where plaintiff sues to quiet title to certain lands, and the defendants in the action plead title from plaintiff's grantor, and judgment is rendered against the plaintiff and in favor of the defendants, a purchaser from plaintiff subsequent to the judgment cannot successfully claim compensation for improvements thereafter placed upon the premises in an action in the nature of ejectment by the said defendants to recover possession of the premises.

Section 2260, R. L. 1910, does not apply when one has gone into possession under a deed executed by an Indian while restricted. It has been held in a number of cases by this court that this statute does not apply to a conveyance by a restricted Indian, and where a purchaser goes into possession under such a conveyance, the possession of such grantee, by virtue of the void conveyance, does not affect the right of the restricted Indian to execute other conveyances.

A conveyance by one tenant in common to his cotenant of his undivided interest in land held adversely is not champertous.

Additional Syllabus by Editorial Staff.

In suit for possession of land and to quiet title, wherein plaintiffs and other witnesses were heard as to the whereabouts of a deed in order to lay the predicate for the introduction of the records, permission to plaintiffs to introduce records of county clerk's office was not an abuse of trial court's discretion, in view of Rev. Laws 1910, §§ 1170, 5099, and 5115.

Where a grantee's deed was void, he could convey no rights thereunder to others.

Error from District Court, Atoka County; J. H. Linebaugh, Judge.

Action for possession and to quiet title by B. B. Braley and E. T Clymer against C. E. Smith, J. H. Gernert, and Clarence J Crockett, in which, on the court's order, Willie Tumbler was made a party defendant. Judgment for plaintiffs on a directed verdict. Motion by defendants Smith, Gernert, and Tumbler for a new trial denied, and they bring error. Affirmed as to defendant Crockett, reversed as to the other defendants, and remanded for further proceedings.

M. C. Haile and J. H. Gernert, both of Atoka, for plaintiffs in error.

J. G. Ralls, of Atoka, for defendants in error.

PITCHFORD J.

This action was commenced by the defendants in error, B. B. Braley and E. T. Clymer, in the district court of Atoka county, Okl., on the 27th day of April, 1915, for the possession of certain lands in said county, and to quiet the title thereto against the plaintiffs in error C. E. Smith and James H. Gernert. For convenience we will refer to the parties as they appeared in the court below. Plaintiffs deraign title from one Willie Tumbler, the original allottee of the land. They allege that on the 14th day of December, 1906, the said Willie Tumbler, after removal of restrictions, executed and delivered his warranty deed to said land to J. W. McClendon, J. O. Kuyrkendall, B. B. Braley, and E. T. Clymer; that thereafter on the 1st day of December, 1910, the said McClendon and Kuyrkendall conveyed their interests in said lands to the plaintiffs. There was a further allegation in the petition that Jas. H. Gernert and Clarence J. Crockett claimed some rights in said lands adverse to the plaintiffs, through deeds executed by Willie Tumbler and wife on the 19th day of December, 1916, to U. J. Burrows, and also a deed from U. J. Burrows to said Jas. H. Gernert, and other conveyances from Tumbler to Crockett.

Answers were filed by the several defendants, in which it was alleged that the rights of the plaintiffs had been adjudicated in the case of Burrows v. McClendon and others in case No. 124, in the district court of Atoka county, Okl., in which judgment was rendered on the 27th day of September, 1909; that the issues and parties in case No. 124 were identical with the issues in this case, and that the plaintiffs herein were claiming the same interest as claimed by the defendant in case No. 124; that by reason of said judgment the plaintiffs were barred from maintaining this action. It was further alleged in the answer that the said Jas. H. Gernert purchased said lands on the 24th day of November, 1906, and went into possession of the same for the said Burrows, and had been in possession ever since; that, if the plaintiffs ever had a deed from the said Tumbler, the same was secured by false and fraudulent representation; that no consideration was ever paid for the same, and, further, that the purported deed held by the plaintiffs from McClendon and Kuyrkendall was champertous and void, for the reason that the same was taken while plaintiffs' grantors were out of possession and had not received the rents and profits arising from said land within a year prior to the date of the said deed.

On the 26th day of January, 1916, the court entered an order making the said Willie Tumbler party defendant in the instant action, and on March 17th thereafter the said Tumbler filed his answer, denying the allegation of plaintiffs' petition, and that he ever at any time executed a deed to plaintiffs or their grantors; that, if they did hold a deed from him to said land, the same was procured through false and fraudulent representations, and was without consideration; and prayed that his title to the lands be cleared. There were other pleadings filed by the respective parties, to which it is not necessary to refer. The case came on for trial on the 8th day of February, 1917, and resulted in the court instructing the jury to return a verdict for the plaintiffs. Thereafter, in due time, the defendants Smith and Gernert, and Tumbler, filed motion for a new trial. We will treat the assignments of error in the following order:

First. That the court erred in permitting plaintiffs to introduce the records of the office of the county clerk of Atoka county.

Second. That the court erred in permitting the introduction of incompetent, irrelevant, and immaterial testimony, and in refusing to permit defendants to introduce competent and material testimony.

Third. That the court erred in holding that the defendant Willie Tumbler was barred from making defense in the action.

Fourth. That the court erred in holding that the judgment in No. 124 was res adjudicata as to the defendants, and in refusing to hold that said judgment was res adjudicata as to plaintiffs.

Fifth. That the court erred in sustaining plaintiffs' motion to direct a verdict for the plaintiffs.

Sixth. That the court erred in refusing to allow the defendant Gernert to show the value of the improvements upon the land in controversy.

Did the court commit error in permitting the introduction of the records of the office of the county clerk? In order to lay the predicate for the introduction of the records, the testimony of several witnesses was heard as to the whereabouts of the deed. Among these witnesses were the plaintiffs. Evidently the court was satisfied with the showing made, and admitted the records. This was a matter largely within the discretion of the court, and, if we find that this discretion has not been abused, the judgment of the court thereon will not be disturbed. We are of the opinion that a sufficient showing was made to sustain the action of the court.

Section 5099, R. L. 1910, provides: "Copies of all papers authorized or required by law to be filed or recorded in any public office, or of any record required by law to be made or kept in any such office, duly certified by the officer having the legal custody of such paper or record, under his official seal, if he have one, may be received in evidence with the same effect as the original when such original is not in the possession or under the control of the party desiring to use the same."

We find that this section was adopted from the Kansas statute, and in the case of Bergman v. Bullitt et al., 43 Kan. 709, 23 P. 938, it is said:

"The plaintiffs below relied on a title derived from the general government through various mesne conveyances to H. M. Bullitt, deceased, and to support their action they offered in evidence duly certified copies of the United States patent and other conveyances in the chain of title. These were certified to be correct copies of the originals that were recorded in the office of the register of deeds. It is contended that there was error in the admission of the copies, for the reason that sufficient proof had not been offered of the loss or destruction of the originals to warrant the admission of secondary evidence of such instruments. These, being copies of instruments authorized to be recorded in a public office, and which were recorded in the office of the register of

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