Warner v. Wickizer
| Decision Date | 16 September 1930 |
| Docket Number | 19910. |
| Citation | 294 P. 130,146 Okla. 232,1930 OK 419 |
| Parties | WARNER v. WICKIZER et al. |
| Court | Oklahoma Supreme Court |
Withdrawn Corrected, Refiled, and Rehearing Denied, Nov. 18, 1930.
Second Petition for Rehearing Denied Dec. 23, 1930.
Syllabus by the Court.
Burden of establishing defense of limitations is on one asserting it; trial court's finding on conflicting evidence will not be disturbed on appeal, if there is any evidence reasonably tending to support finding.
Where the statute of limitations is pleaded as an affirmative defense, the burden of proving it is on the one who asserts it, and, where the evidence is conflicting as to whether or not the statute of limitations has run, the finding of the trial court thereon, where a jury is waived, will not be disturbed on appeal, if there is any evidence reasonably tending to support such finding and judgment.
Cancellation of deed absolute on face found to be mortgage on ground that it was stale and unenforceable, without requiring payment of amount secured thereby, held error.
Where a party defendant asks affirmative relief by cancellation of a deed absolute on its face on the ground it is a mortgage, and the trial court finds such deed to be a mortgage, it is error to cancel such mortgage on the ground that it is stale and unenforceable, and defendant should have been required as a condition to cancellation to pay the amount secured thereby under the equitable rule that he who seeks equity must do equity.
Commissioners' Opinion, Division No. 1.
Appeal from District Court, Tulsa County; Luther James, Judge.
Action by E. S. Warner against Margaret C. Wickizer and others. Judgment for defendants, and plaintiff appeals.
Modified and affirmed.
William Neff, of Tulsa, for plaintiff in error.
Davidson & Williams, of Tulsa, for defendants in error.
This action was commenced in the district court of Tulsa county on March 7, 1914, by E. S. Warner against Margaret C. Wickizer et al., to obtain possession of 160 acres of land and to recover rents thereon.
It was alleged by plaintiff that he was the fee owner of the land and that the defendants denied his rights therein and unlawfully withheld possession thereof under claim of absolute ownership.
The land involved was the allotment of Tecumseh Tiger, a full-blood Creek Indian who died during the year 1900; patent to the land being subsequently issued to his heirs.
This is the third appeal in this case. At the first trial of the cause a demurrer was sustained to plaintiff's evidence on the ground that neither plaintiff or his grantor had been in possession of the land or taken or received the rents or profits therefrom for a period of one year prior to the execution of the deed relied on. It was held in Warner v Wickizer, 61 Okl. 200, 160 P. 885, that the statute relied on by the defendants was not applicable under the facts shown, and the judgment of the trial court sustaining defendant's demurrer was reversed.
The second trial resulted in a judgment in favor of the plaintiff decreeing him to be the owner of all title to the land, and defendant appealed, and that judgment was reversed in Wickizer v. Warner, 102 Okl. 214, 228 P. 781, with directions to grant a new trial, it being there held that Albert Tiger, nephew of the deceased allottee through whom the plaintiff claimed entire title to the land, only inherited an undivided one-half interest in the land, and that plaintiff had not shown that the defendants denied plaintiff's rights in the land. It is the title and right of possession to the one-half interest inherited by the nephew Albert Tiger that is here and now involved.
The third trial resulted in a judgment in favor of the defendants, and the plaintiff brings this appeal.
The several assignments of error and grounds for reversal relied on by the plaintiff are, in substance, that the judgment appealed from is not sustained by the evidence and is contrary to the law and evidence. The trial court, after making certain findings of fact, made and entered, with others, the following conclusions of law:
The first two propositions presented and argued in the brief of plaintiff relate to the first two conclusions of law A and B, it being asserted by the plaintiff that "laches is not a defense to this action," and that none of the legal elements of estoppel are shown to exist. From the record and authorities presented, we are inclined to the opinion that the contention made by plaintiff is meritorious, but we do not find it necessary to pass upon and determine the same or the correctness of the first two conclusions of law as presented in plaintiff's brief, because they are not necessarily controlling or decisive of the case under our holding upon other conclusions of law which are decisive on the issues.
The third conclusion of law by the trial court was in substance and to the effect that the plaintiff's claim of title and right of action was barred by the Arkansas seven-year statute of limitation which was pleaded as a defense by the defendants. If the plaintiff's right of action accrued prior to statehood, then the Arkansas statute of limitation would be applicable.
"The statutes of limitation, as they appear in Mansfield's Digest of the Statutes of Arkansas, control the commencement of all actions, real or personal, where the cause of action accrued prior to November 16, 1907, in that part of the state formerly comprising the Indian Territory." Julia O. & G. Co. v. Cobb, 128 Okl. 260, 262 P. 650.
The record discloses that Albert Tiger, a nephew and one of the heirs of the deceased allottee, executed a deed purporting to convey full title to the land involved to the Iowa Land & Trust Company under date of Dec. 27, 1904, which deed was recorded on the next succeeding day. On February 9, 1905, the same grantor, Albert Tiger, executed a second warranty deed to the same land in favor of A. A. Viersen and Geo. C. Beidleman, which later deed was recorded two days after its execution. During the years 1907 and 1908 Viersen and Beidleman obtained a deed to the land involved from the heirs of Judy Tiger, the deceased wife of the allottee, who inherited a one-half interest in the land and also acquired other deeds from Albert Tiger and those to whom he had executed deeds other than to the grantor of plaintiff.
In 1908, Viersen and Beidleman sold and conveyed their rights and interest in the land to T. C. Wickizer, one of the defendants, and in 1910 he sold and conveyed 80 acres of the land to the defendant Farris, who thereafter occupied and improved the same. In 1911 the Iowa Land & Trust Company, a domestic corporation, organized under the laws of the Indian Territory with offices at Muskogee, executed a deed to the land to the plaintiff, Warner, who was an officer of the corporation and owned all of its shares of stock except two or three.
Prior to the execution of any of the deeds referred to, Albert Tiger, representing himself as the sole heir of the deceased executed a written five-year agricultural lease on the land involved to one Stonebreaker, which lease was recorded in 1904, and under its terms the lessee was to place in cultivation a portion of the land, fence the same, and make other improvements. The rent, except for the year 1904 which was paid in advance, was payable in cash the 1st day of January, 1905, and the first day of each subsequent year thereafter during the term of the lease. It is the contention of the plaintiff that his grantor, Iowa Land & Trust Company, as well as the defendants or their grantors, had no right to the possession of the land or right to maintain any action for possession thereof until the expiration of the said lease on September 16, 1908, and for that reason the statutes of limitation would not have begun to run until that date, and that the statute of limitations relied upon did not apply. Certain authorities are cited by the plaintiff which hold that the statute of limitation does not begin to run until the party against whom it is directed is entitled to possession, as in the case of a remainderman. No fault is found with the rule...
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