54 P. 306 | Okla. | 1898
Action by Herman A. Brockhause against John Shy. Judgment for plaintiff. Defendant appeals. Affirmed. Opinion of the court by Herman A. Brockhause commenced an action in the district court of Woodward county, Territory of Oklahoma, on the 13th day of April, 1896, against John Shy, to recover the possession of certain real estate located in the Citizens' addition to Woodward, in Woodward county, Territory of Oklahoma, viz: lots numbered 11 and 12, in block numbered 29, in said town site. Issues were joined and a trial had before the court, a jury having been waived by both parties, which resulted in a judgment for plaintiff. From that judgment, Shy appealed to this court, praying a reversal of the same.
The plaintiff alleged in his petition that he had an equitable estate in the lots in controversy; that he was entitled to the immediate possession of said real estate; and that defendant was unlawfully keeping him out of possession of the same. The defendant's answer contained a general denial; allegations to the effect that the legal title was in the government, and that he was occupying the lots in controversy in his own right, and that the plaintiff had no interest therein, except that the defendant had executed a bill of sale to the plaintiff for the house on said lots, which bill of sale was to be held by plaintiff as security for a loan. The contention of the *37 plaintiff was that he had rented the house and lots to the defendant, and that he (the defendant) was then, and had been for a long time prior thereto, occupying said property as a tenant of the plaintiff.
On the trial, the court found that from December 4, 1894, to the date of the commencement of this action, the defendant was a tenant of the plaintiff, Brockhause, and that on the day of trial there was due from defendant to plaintiff, for rents, the sum of $140; that defendant had placed on said lots certain improvements, of the value of $100, for which he was entitled to credit, leaving a balance of $40 due from defendant to plaintiff. Judgment was rendered in favor of plaintiff for the amount, and for restitution of the property.
The appellant alleges that the trial court erred in sustaining plaintiff's demurrer to paragraphs 2, 3, and 4 of defendant's answer, which were in the following language:
(2) "That the lots described in plaintiff's petition are a part of the southwest quarter of section 30, T. 23 N., of R. 2 W., and said land is now, and has been since September 16th, 1893, under contest before the land department of the United States.
(3) "That said contest is now pending between Frank Morgan, homestead claimant, and the citizens of East Woodward, who are collectively claiming said land for townsite purposes under and by virtue of the United States land law of 1893.
(4) "That the title of said land, and of the lots described in plaintiff's petition, is in the United States; and, although the said land has been awarded to the said townsite claimants, no townsite board has yet been appointed to adjust and dispose of said lots to the persons entitled thereto, and the various questions of occupancy *38 and title by town-lot claimants are still before said department, and undetermined."
The demurrer to this part of defendant's answer was on the ground that neither the said paragraphs, nor either of them, stated facts sufficient to constitute a defense to plaintiff's petition. The plaintiff in error takes the position that Brockhause could not maintain his suit, because the legal title to the real estate was still in the government at the time of the commencement of this action. The remedy that should be pursued by a person who wishes to recover the possession of real estate from one who is wrongfully withholding the same, and while the legal title is in the government, is a question which has been before this court a number of times, and has been a subject of careful research and consideration.
This action was commenced under the provisions of article 24 of "Procedure — Civil" of the Statutes of Oklahoma of 1893, which is entitled "Actions Concerning Real Estate," the first two sections of which are as follows:
"SEC. 613. An action may be brought by any person in possession, by himself or tenant, of real property, against any person who claims an estate or interest therein, adverse to him, for the purpose of determining such adverse estate or interest.
"SEC. 614. In an action for the recovery of real property, it shall be sufficient if the plaintiff state in his petition that he has a legal or equitable estate therein, and is entitled to the possession thereof, describing the same, as required by section 127, and that the defendant unlawfully keeps him out of the possession. It shall not be necessary to state how the plaintiff's estate or ownership is derived."
In the case of Pappe v. Stout,
It was held by this court in the case of Hurst v. Sawyer,
It is well established that the courts will not interfere with the primary disposition of the soil; and, where two parties have a contest pending before the land department or in any of its branches, the courts will not, ordinarily, make any order that will exclude one of such parties from such land, and give the other the entire occupancy and control thereof; but, where a party gets into possession of real estate by virtue of a lease, he cannot defeat his landlord's right to recover by pleading title in the government. Before he can be heard to question his landlord's title in any way, he must first surrender possession of the premises. (See Hagar v. Wyckoff,
It was not necessary in this case for plaintiff to allege or prove the legal title to be in himself, an equitable estate being sufficient. (Simpson v. Boring,
The case of Duffey v. Rafferty,
Under the laws of the Territory, all that is necessary for plaintiff to allege is that he has a legal or equitable estate in the real estate sought to be recovered, and that he is entitled to the possession thereof, together with a proper description of the same; and that defendant unlawfully keeps him out of possession. Now, has an occupant of a townsite lot an equitable estate therein, prior to the issuance of patent? It has been so held. (Strongfellow v. Cain,
The only other question raised by the appellant is that the trial court erred in overruling the defendant's application for a continuance. A casual examination of the defendant's affidavit will show that it is wholly insufficient, and does not comply with our statute. Besides, it is not sworn to. It is therefore unnecessary to give it any further consideration.
For the reason herein stated, we hold that the judgment of the trial court should be affirmed, and that the costs of this appeal should be taxed to the appellant; and judgment is hereby entered to that effect.
All of the Justices concurring