Smith v. Reneau

• Decision Date: 25 March 1941
• Docket Number: 29589.
• Citation: 112 P.2d 160,188 Okla. 629,1941 OK 99
• Parties: SMITH v. RENEAU.
• Court: Oklahoma Supreme Court

112 P.2d 160

188 Okla. 629, 1941 OK 99

SMITH v. RENEAU.

No. 29589.

Supreme Court of Oklahoma

March 25, 1941

Rehearing Denied April 15, 1941.

Syllabus by the Court.

1. In this state the plaintiff in an action to quiet title is not required to have the legal title, or all the title, or a title paramount to the title of all others, in order to enable him to recover. It is only necessary that he shall have some kind of an estate in the property in controversy legal or equitable, and that his title to the property shall be paramount to that of the defendant. Actions of this class are equitable in their nature, and the rights of the parties must be governed by the rules pertaining to suits in equity.

2. Until a will is admitted to probate it is not effectual as an instrument of title.

Appeal from District Court, Latimer County; Wm. S. Hall, Judge.

Action by A. H. Reneau against Mary E. Smith and others to quiet title as against the defendants. All defendants disclaimed or defaulted except the named defendant, who filed a cross-petition. From a judgment in favor of the plaintiff the named defendant appeals.

Judgment affirmed.

Norman Barker, of Tulsa, for plaintiff in error.

Bob Perdue, of Wilburton, and Martin & Spradling, of Tulsa, for defendant in error.

BAYLESS Justice.

A. H Reneau filed an action in the District Court of Latimer County against Mary E. Smith et al., alleging he was the owner and was in possession of certain real estate, and sought to quiet title against the defendants. All defendants disclaimed or defaulted save Mary E. Smith, who appeals from a judgment in favor of plaintiff.

Service was obtained upon defendant by publication, and at the time she first appeared she attacked the regularity and validity of this service, and saved her record when the court ruled against her. She presents that as error here, but we cannot notice it due to the fact she subsequently filed a cross-petition wherein she sought affirmative relief for herself. In Smith v. Burt, 150 Okl. 34, 300 P. 748 and other cases under Appearance, 3 American Digest, ? ?24(13), it is held that a defendant may defend after a motion to quash has been overruled, but if he goes further and seeks affirmative relief against the plaintiff or other defendants he waives the error, if any, in overruling the motion to quash and submits himself to the general jurisdiction of the court.

In her answer and cross-petition she (1) denied plaintiff's title; (2) admitted he was in possession, but without legal right; (3) set up a tax deed as the basis of title of his remote grantor, and pleaded its void character; and (4) asserted her title as the residuary legatee and devisee of the allottee who died testate in the State of Massachusetts. She asked that title be quieted in her.

Plaintiff proved that he had a warranty deed to the property and possession, and rested. The defendant demurred and when the demurrer was overruled she introduced proof on her own behalf. At the close of her evidence the plaintiff moved for judgment and this was granted.

Defendant contends that plaintiff's evidence is insufficient to show that he was entitled to relief, and that his showing was less than that required of a plaintiff in an action of this character. She asserts that a plaintiff must recover on the strength of his own title and not on the weakness of the title of his opponents. McMurrough v. Alberty, 90 Okl. 4, 215 P. 193, and other cases.

If defendant had rested on her demurrer and had declined...