159 P. 367 | Okla. | 1916
This was an action instituted by Wm. Butler and Adeline Butler, his wife, for the use and benefit of C.W. Miller, against Andrew J. Fryer, to recover the possession of, and to cancel the deeds to, certain land in Atoka county, Oklahoma. It appears that Wm. Butler and wife were Choctaw Freedmen, and allottees of the land in controversy. They executed deeds to this land to the defendant, Fryer, at a time when, it seems to be admitted, they could not convey by reason of the restriction acts passed by Congress. Thereafter, and at a time when they could lawfully convey the land in question, they did convey it by warranty deed to C.W. Miller. Meanwhile, however, Fryer, the defendant, had entered into the possession of the land, and has at all times been in actual and adverse possession thereof. Miller commenced an action in ejectment against Fryer to recover possession. Pending this action Fryer secured a deed from William and Adeline Butler conveying to him the land, of which he was then an occupant. The action by Miller against Fryer was decided in favor of Fryer, and upon appeal to this court the decision of the district court was affirmed (Miller v. Fryer,
We are unable to agree with the conclusions of the trial court. In order for a judgment to be a bar in a subsequent action, among other things the prior judgment must have been rendered in an action in which the same parties, or their privies, were concerned, as are parties litigant in the action in which the former judgment is pleaded as a bar. So, too, it must be shown that the questions involved in the instant action were those which were litigated or could have properly been litigated in the former action. In the case at bar, Miller is not the plaintiff, *275 nor is he a party to the action. The action is brought in the name of the Butlers. It is true it is for the use and benefit of Miller, but he is not, as concluded by the trial court, the real party in interest.
This court has held (Gannon v. Johnston,
"To make a man a privy to an action, he must have acquired an interest in the subject-matter of the action, either by inheritance, succession, or purchase of a party subsequent to the action, or he must hold the property subordinately."
So it is said that the ground on which persons standing in privity to the litigating party are bound by the proceeding to which he is a party is that they are identical with him in interest. Williams v. Barkley,
If there are exceptions to this rule they are not applicable here. As was said in Allred v. Smith,
The rulings and findings of the trial court. suggested as erroneous by the defendant in error, we are precluded from reviewing by reason of the fact that he has filed no cross-petition in error, and these questions must therefore be left for the determination of the trial court upon a retrial.
For error of law in holding the judgment in Miller v. Fryer conclusive of the questions *276 in the case at bar, the judgment of the trial court is reversed for further proceedings not inconsistent with this opinion.
By the Court: It is so ordered.