Bilby v. Gilliland , 41 Okla. 678 ( 1913 )

After careful consideration of the points urged by defendant in error for rehearing, and a careful re-reading of the record, we find that the propositions urged in the petition for rehearing are not well taken.

We further find, as disclosed by the record, that the quitclaim deed from John O. Chapman to John W. Gilliland, upon which Gilliland relies for recovery in this action, was executed and delivered January 17, 1910, and that, at the time this quitclaim deed was executed and delivered, R. V. Bilby, through his tenants, was then in possession and absolute control of the premises in question, and that Gilliland, through his tenants, made no pretentions to get possession of such premises until November or December, 1910, after the crops for that year had been gathered and Bilby had received the rents and profits; that even then he obtained possession under questionable means.

We further find from the record that under Gilliland's own testimony he knew, at the time he took the quitclaim deed from Chapman, that Bilby had a deed from the heirs of Little Peter on record. On page 49 of the record he says:

"Q. Didn't you know he had a deed on that land and was claiming it? A. I knew he had an old void deed on it; yes, sir."

On further cross-examination (page 50) he says:

"Q. You understood he had a deed from all the other heirs? A. I saw the deed on record. Q. You saw this deed that I now hand you on record (handing witness paper)? A. I saw the deed that is the copy of; yes, sir. Q. You saw that before you purchased the land, didn't you? A Certainly. * * * Q. You never had any agreement or understanding with Mr. Bilby by which you was to get in possession of these lands, did you? A. I did not. Q. Did you receive any rents for these lands for the year 1910? A. No, sir."

Hence, under Gilliland's own testimony, he took the quitclaim deed from Chapman at a time when Bilby was in full possession and complete control of the premises in question, and had been for a period of more than five years, under a duly recorded deed from the heirs of Little Peter, during which time neither the heirs nor Chapman had received any of the rents and profits from said premises, nor pretended to lay any claim to same or exercise any control over same. Therefore, under the authority of Miller v. Fryer, 35 Okla. 145, 128 P. 713, opinion by Justice Hayes, the syllabus of which is as follows:

"By reason of section 2215, Comp. Laws 1909 [Rev. Laws 1910, sec. 2260], a deed conveying real estate, executed by a grantor at a time when he was not in possession of the conveyed premises, is void as between the grantee and a person who was at the time of the conveyance in adverse possession of the conveyed premises; and this rule applies where the grantor is an allottee of the Chickasaw and Choctaw Tribes of Indians upon whose power to alienate his allotment the restrictions have been removed prior to the time of the execution of the deed, and where the person in possession originally obtained possession and claims title to the conveyed premises by virtue of a void deed executed by the allottee before the removal of restrictions upon his power to alienate his allotted lands"

— and also Ruby v. Nunn, 37 Okla. 389, 132 P. 128, opinion by Brewer, C., the syllabus of which is as follows:

"By reason of section 2215, Comp. Laws 1909 [Rev. Laws 1910, sec. 2260], a deed conveying real estate, executed by a grantor at the time not in possession of the conveyed premises, is void as between the grantee and a person who was at the time of the conveyance in adverse possession of the conveyed premises; and this rule applies where the grantor is an allottee of the Creek Tribe of Indians, upon whose power to alienate his allotment the restrictions have been removed prior to the time of the execution of the deed, and where the person in possession originally obtained possession and claimed title to the conveyed premises by virtue of a void deed executed by the allottee before the removal of restrictions upon his power to alienate his allotted lands"

— the deed from Chapman to Gilliland was champertous and void as between Gilliland and Bilby.

The former opinion, therefore, with this addition, is adhered to.

By the Court: It is so ordered.