Thomas v. Trimble

• Citation: 267 P. 243,130 Okla. 223,1928 OK 281
• Decision Date: 24 April 1928
• Docket Number: 18444.
• Parties: THOMAS v. TRIMBLE et al.
• Court: Supreme Court of Oklahoma

267 P. 243

130 Okla. 223, 1928 OK 281

THOMAS v. TRIMBLE et al.

No. 18444.

Supreme Court of Oklahoma

April 24, 1928

Syllabus by the Court.

Certificate of selection, in the absence of restriction on alienation will support a conveyance and will be sufficient upon which to base an ejectment.

The statute of limitations as they appear in Mansfield's Digest (section 4471) Statutes of Arkansas, control the commencement of all actions accrued prior to November 16 1907, in that part of the state formerly comprising Indian Territory.

Appeal from District Court, Rogers County; J. J. Smith, Judge.

Action by Freddie Thomas against J. McD. Trimble and others to recover land and for damages. From a judgment for defendants plaintiff appeals. Affirmed.

William Neff, of Tulsa, Wallace & Wallace, of Sapulpa, and Claude A Niles, of Checotah, for plaintiff in error.

T. J. Flannelly and Paul B. Mason, both of Independence, Kan., J. Wood Glass, of Nowata, and Holtzendorff & Holtzendorff, of Claremore, for defendants in error.

LESTER J.

The plaintiff in error was plaintiff below, and the defendants in error were defendants below, and each therefore will be referred to as they appeared in the trial court.

The plaintiff brought suit for possession of certain lands which had been allotted to him as a Cherokee Freedman; he also prayed for the recovery of damages for the withholding of said real estate. Upon trial a jury was waived, and the plaintiff thereupon introduced his evidence and rested, to which evidence the defendants interposed a demurrer, the demurrer was by the court sustained, and judgment was rendered in favor of the defendants, from which judgment the plaintiff appeals. The plaintiff in his petition alleged the following in part:

"Plaintiff further alleges that on the 3d day of August, 1904, the plaintiff executed and delivered to the defendants, J. McD. Trimble and C. A. Braley, a warranty deed, purporting to convey the real estate in controversy herein to said J. McD. Trimble and C. A. Braley, and said defendants assumed to take possession of said land under said deed, and that the other defendants claim some right, title, or interest in said land solely by virtue of a title derived through said deed, the exact nature of the claims of each of the defendants being unknown to the plaintiff."

Several of the defendants filed their answer, pleading the statute of limitation, and the legal representatives of J. McD. Trimble and C. A. Braley filed a general denial to plaintiff's petition. The plaintiff filed a reply to the plea of statute of limitations set up by several of the defendants in their answer, which reply alleged that each of the defendants were nonresidents of the state of Oklahoma since the time that the plaintiff had acquired title to said real estate. Plaintiff, together with two additional witnesses, testified in said cause, and a summary of their testimony is about as follows: That plaintiff was a Cherokee Freedman, who, at the date of executing the deed herein, had reached his majority; that on the 3d day of August, 1904, he signed a deed conveying the land in question to J. McD. Trimble and C. A. Braley; that on the 4th day of August, 1904, he went before the Land Office and made his selection of the lands herein involved; that on the 5th day of August, 1904, his wife joined him in the execution of said deed, and on the 8th day of August, 1904, the deed was duly filed for record. The defendants have been in possession of said land under said deed since the 4th day of August, 1904. The plaintiff in his brief on page 18, under proposition No. 2, states:

"No statute of limitation runs against the plaintiff in this action, it being admitted that the defendants have been nonresidents ever since the making of the deed in question."

An examination of the record at page 44 reveals the following stipulation as to the residence of said defendants:

"It is further stipulated and agreed that the defendants, J. McD. Trimble and C. A. Braley, went into possession of the land in controversy on or about the 4th day of August, 1904, and that they and those claiming under them have been in open, notorious, and adverse possession of the land continuously since that date; that the possession of said land by J. McD. Trimble and C. A. Braley was through tenants; and that the possession of those claiming under them was also through tenants, except as to the lessees under oil and gas lessees who were in actual possession under and by virtue of oil and gas leases made by J. McD. Trimble and C. A. Braley. It is further stipulated and agreed that J. McD. Trimble died at Kansas City, Mo., in the year 1913, and that the defendant, C. A. Braley, died at Kansas City in January, 1925. And it is further stipulated and agreed that at date of death of said C. A. Braley he was a resident of Kansas City, Mo. It is further stipulated and agreed that the heirs of J. McD. Trimble were nonresidents of the state at the date of the commencement of this action in 1923, and that the heirs and legal representatives of C. A. Braley were nonresidents of the state of Oklahoma at the date of the commencement of the action as to them in 1926."

It is further stipulated that the deed under...