229 P. 611 | Okla. | 1924
Mary Maurer, a citizen by Indian blood, was allotted the 10 acres of land in controversy. The allottee gave consent to her son, Lon Maurer, Sr., prior to the year 1914, to build a residence upon the land and occupy the same with his family for an indefinite period of time. The plaintiffs in this action are children of Lon Maurer, and his wife, Eunice Maurer. The son constructed the residence upon the land and went into possession of the same with his family. During his occupancy, and in the year 1914, he died, leaving his wife and plaintiffs in possession of the property. Later the widow and plaintiff in error, W.H. Hancock, were married and the latter occupied the premises with his wife, who had been appointed guardian for the plaintiffs. In the year 1916 the allottee, who was the grandmother of the plaintiffs, died, leaving the property in question, by will, to the plaintiffs. Eunice Hancock, nee Maurer, died in September, 1920, leaving the plaintiffs and defendant in possession of the property. Immediately after the death of the mother, Ada Mullen the sister of the latter, took the minor plaintiffs into her home and was appointed guardian for the parson and estate of the plaintiffs. The defendant, W.H. Hancock, *197
continued in the possession of the land and refused to deliver possession to the guardian for the minors. In December, 1920, the guardian caused preliminary notice to a forcible entry and detainer proceeding to be served on the defendant, demanding possession of the property for the minors. The defendant refused to deliver possession and the plaintiffs commenced their action in forcible entry and detainer proceedings in the justice court against the defendant for the possession. Judgment went for the plaintiffs. The defendant appealed the cause to the district court, where judgment again went for the plaintiffs. The defendant has appealed the cause to this court and seeks reversal, in the main, on the ground that the evidence is insufficient to support the verdict and judgment. The defendant did not introduce testimony in the trial of the cause in the district court. Here, the defendant asserts that his occupancy was that of a tenant at will, and that it required notice from the plaintiffs to terminate the tenancy according to section 7344, Comp. Stat. 1921. The only notice given by the plaintiffs to the defendant was the notice required by section 1051, Comp. Stat. 1921, preliminary to the commencement of a forcible entry and detainer action. The soundness of the judgment rendered by the district court in favor of the plaintiffs is measured by the relationship existing between the plaintiffs and defendant at the time of the commencement of the action. Where the tenant goes into possession of real estate for a certain period of time under contract with the landlord, if the tenant continues to hold the possession of the property after the expiration of the fixed tenancy with the consent of the landlord the possession of the holder is a tenancy at will. At common law the simplest form of a tenancy at will was where the landlord let another into possession of his land to hold the same for an indefinite period of time at the will of the lessor. Thompson v. Baxter,
It is recommended that this cause be affirmed.
By the Court: It is so ordered.