Harjo v. Owensby

Opinion by 'STEWART, C. Action was brought in the district court of Creek county, Okla., by plaintiffs in error for the recovery of certain lands situated in said *316 county and to quiet title to the same. There is .but one question to be determined in this case. In the trial court the defendants in error, who were defendants in such court, filed the following motion to dismiss: ‘Come now the defendants in this case •and move the court to dismiss this case for the reason that it is shown on the face of the petition that tlie same is not prosecuted l)y any person having a beneficial interest in any recovery that may be had, and is not prosecuted in the name of the real party in interest, and that the suit cannot toe maintained under our Oode for the use and benefit of another.” The plaintiffs alleged that they are full-blood Creels Indians, citizens of Creek Nation, duly enrolled as such, and the owners of the land involved, but the court sustained the motion to dismiss because of the following allegations contained in plaintiffs’ petition: “The plaintiffs further state that on the •'2d day o,f January, 1913, they conveyed said land to W. D. Allen, and covenanted and warranted to the said W. D. Allen the quiet and peaceable possession of said land, .and that the defendants now and ever since said- date have wrongfully and unlawfully kept the said W. D. Allen out of the possession of said land; that at the time of making said conveyance and covenants, to wit, on the 2d day of January, 1913, the defendants were in possession of said laud, and the plaintiffs were out of possession thereof, •and the plaintiffs had not nor those under whom they claim title had not been in possession of said land nor received rents and profits therefrom for the space of one year next before the malting of said conveyance, and covenants.” It has been determined by this court that the grantee in a deed, ehampertous because in violation of section 2260, Revised Laws 1910, does not acquire such title to the land conveyed as will enable him to maintain an action against one holding such adverse possession to the grantor at the time of the making and executing of such deed as is contemplated by such section. Huston v. Scott et. al., 20 Okla. 142, 94 Pac. 512, 35 L. R. A. (N. S.) 721; Powers v. Van Dyke, 27 Okla. 27, 111 Pac. 939, 36 L. R. A. (N. S.) 96; Martin v. Cox, 31 Okla. 543, 122 Pac. 511; Sutton v. Denton, 55 Okla. 8, 154 Pac. 1193. It is equally well settled that the grantor in such a deed may maintain an action in his own name against those in possession to recover the land. Huston v. Scott, supra, and authorities hereinafter cited. There is no longer any doubt in this jurisdiction that the grantor in a ehampertous deed 'may maintain an action against those holding adversely to recover the land for the benefit of h'is grantee or that the grantee may maintain such an action in the najne of the grantor; such deed being good between the parties thereto. Gannon v. Johnston et al., 40 Okla. 695, 140 Pac. 430, L. R. A. 1915D, 522; McElroy v. Moose, 51 Okla. 173, 151 Pac. 857; Tyler v. Roberts, 56 Okla. 610, 156 Pac. 201; Roberts v. Cora Exp. Co., 57 Okla. 251, 156 Pac. 644; Burckhalter et al. v. Vann, 59 Okla. 114, 157 Pac. 1148; Vernor v. Poorman, 59 Okla. 105, 158 Pac. 615; Buell v. U-par-har-ha et al., 60 Okla. 79, 159 Pac. 507. The plaintiffs, under th.e authorities cited, had such interest in the land as authorized them to maintain the action, and the trial court erred in sustaining the motion to dismiss. ■ The cause is reversed, and remanded for a new trial, f By the Court: It is so ordered.