The Long Bell Lumber Company v. Martin

Opinion of the court by MoAtee, J.: The lands of the Cherokee outlet, of which these lots form a part, were thrown open to settlement by the general government upon the 16th day of September, 1893. The quarter section of land .in which they are included, was by it granted to Daniel E. Stiles, and by successive conveyances from Stiles through Harry.C. C. Stiles ánd Barnes and Dalton by warranty deed to H. B. Martin, and by quit claim deed through Hatch and his wife to Martin. The defendant is without any interest or claim to the property whatever. The occupation of the quarter section of land on the 20th day of September, 1893, or four days after the dedication of the lands of the outlet to settlement by the government, by various settlers, under the assumed and pretended organization of the “Ponca Townsite Company,” was invalid. The defendant company does not pretend to have any other claim to the lots than that which it is entitled to as a trespasser deriving successive rights and privileges from antecedent trespassers of the same general character. *198 It is contended by the plaintiff in error that the court erred in sustaining the motion of the defendant in error to strike out and take from the jury that portion of the statement made by the attorney for the defendant in error, in opening the case to the jury, which pertains to “all transactions prior to the 1st day of July, 1895,” that is, to the testimony relative to the circumstances under which the plaintiff in error got possession of the land in controversy. The statement withdrawn from the jury by the court included the particulars of the alleged contract between the plaintiff in error company, and the “Ponca Townsite Company.” It was entirely immaterial, and calculated to. mislead the jury. * ' The Ponca Townsite company, in undertaking, as the defendant undertook to show, that it would secure a quarter section of land including he lots in controversy, to be set out as a townsite, and be divided into lots, blocks, streets and alleys, was wholly without authority, and was, if the statement was true, an undertaking to do a thing which was void as against public policy. . The land was at that time dedicated by the government to use as a homestead, and the Ponca Townsite company had no right or authority whatever in the premises. All such attempts are in contravention of public policy, and were properly withdrawn from the jury, since they in no wise tended to constitute a defense in this action. It is also contended that the court erred in admitting evidence which was incompetent, irrelevant and immaterial, and *199 in contravention of section 6137 of tbe Statutes of 1893, which provides that: “Every grant of real property, other than that made by the territory, or under judicial sale, is void, if at the time of the delivery thereof said property is in the actual possession of the person claiming under the title adverse to that of the grantor.” This provision of the statute does' not have the effect contended for, since the defendant company does not set up or pretend either in the pleadings or in the evidence that it holds under any “title adverse” to that of the grantor, Daniel F. Stiles. The certified copy of the record of the deed from Harry C. C. Stiles to Barnes and Dalton, conveying the property in question, was offered in evidence and objected to “as being incompetent, irrelevant and immaterial.” No objection was specifically stated at the time, but it is now contended that the power of attorney under which Daniel F. Stiles acted in undertaking to execute the deed was not shown. The deed purported upon its face to be made by Harry C. C. Stiles, and was in fact executed in the name of Harry C. C. Stiles by Daniel F. Stiles “as attorney in fact.” We think that the general objection of incompetency, irrelevancy and immateriality did not reach the point, since the attention of the trial court was. not specifically called to the point now argued, and the point was indeed specifically raised for the first time in this court, in the brief of the plaintiff in error. It has in various cases been held by the supreme court of Kansas, that: *200 “If a party fails to object to tbé introduction of an instrument on the ground that its execution is not proven, he cannot thereafter raise the question." (Botkin v. Livingston, 16 Kans. 39.) And that: “When offered, the record was objected to ‘as being incompetent.' * * * Was this objection sufficient to raise the question now presented? (That of the authentication of a record). It should perhaps be marked that the views we have expressed are in reference to cases in which the defect could have been obviated by further proof.” (K. P. Ry. v. Cutter, 19 Kans. 89.) And that: “The objection must be so specific that the court may know from the objection what the question is it is called upon to decide; and unless the objection is thus specific, we cannot assume that the court decided some particular question which it might or might not have decided, and that it erred in its decision. Error can never be presumed.” (Humphrey v. Collins, 23 Kans. 390.) And that: “The objection to the introduction of the letter was because it was ‘incompetent and irrelevant/ This objection does not reach the objection counsel seek to raise now. (The contention of counsel was that it could only be made competent by proof'of the genuineness of the signature.) No objection was there (in the court below) interposed that sufficient preliminary proof had not been offered to admit the letter in evidence.” (Daugherty v. Fowler, 44 Kans. 628.) These cases sufficiently fortify the proposition, as stated in the text of the 8th Ency. of Pleading and Practice, 252, *201 that the particular point should, be specified, and that it is too late to raise the point upon motion for new trial, or after verdict. It is also contended that the deed from Barnes et al. to Martin is in violation of section 2025 of the Statutes of 1893, which provides that: “Every person who takes any conveyance of lots or tenements, or of any interest or estate therein, from any person not being in the possesssion thereof, while said lands or tenements are the subject of controversy, by suit in any court, knowing the pendency of such suit, and that the grantor was not in possession of said lands or tenements, is guilty of a misdemeanor.” This statute does not undertake to declare that the conveyance of the lands, tenements or interests shall not be effective, nor is there anything in the statute which would preclude the effect of such conveyance, or that Martin had any knowledge of the pendency.of any suit in any court touching the property, nor is there any proof in the case that the lands in question were the subject of any such suit. It is contended by the plaintiff in error that the “evidence does not prove any cause of action for the plaintiff and against' the defendant.” The first cause of action in which the plaintiff sought to recover for the use and occupancy of the lots from the first day of. June, 1895, to the 17th day of September, 1896, was abandoned and dismissed, and the question as to che plaintiff’s right to recover for that period was not submitted to the jury, nor taken into consideration. *202 The recovery was had upon the second cause of action which alleges that B.arnes and Dalton, who held the title, executed a warranty deed for the lets to the plaintiff; that the defendant was on the 17th day of September, 1896, in the possession, use and occupancy of the lots, and that their reasonable value was thirty dollars per month. The petition avers a demand and a refusal to pay, and these were all the averments necessary to entitle the plaintiff to recover. The plaintiff is not asking for the recovery of rent; he is asking for the value for the use and occupancy of his property upon the express averment that the plaintiff “wilfully withholds the property from the possession” of the plaintiff, to his “injury and damage.” All the facts of the case go to show that the defendant is a mere trespasser, and he is not entitled to exemption from a recovery in damages even if he avers m his petition that' the measure of his damages is the value of the use and occupancy of the premises during the period sued for. The relation of the landlord and tenant never existed in the case. The case is one of occupation of land without color of title, but that fact would not prevent the plaintiff from recovering damages in this action even if he had averred that the rental value of the premises amounted to a certain specific sum, since it has been expressly declared by this court that “the rental value of the premises during the time the party is forcibly and unlawfully kept out of the possession, is the proper measure of damages.” (Oklahoma City v. Hill Bros. 6 Okla. 115.) *203 The evidence offered to the jury is sufficient to prove the cause of action in favor of the plaintiff and against the defendant. It is again contended by the plaintiff in error that the “court erred in excluding from the jury thé testimony offered by the plaintiff in error, which was relevant to the issues in the case.” The errors complained of are the rejection of the depositions of Schwartz, Parks and R. A. Long, president of the defendant company. This testimony thus offered related^ to the circumstances under which the defendant company had gone into the occupancy off the lots in dispute, in violation of the homestead laws of the United States, and was properly excluded from the jury. We have examined the cause, including instructions given by the court, and find no error in them. The judgment of the court below is affirmed. Hainer, J., who presided in the court below, not sitting: all the other Justices concurring.