McElhany v. Langston , 105 Okla. 221 ( 1924 )

This case is a companion case to that of J.L. McElhany et al., Plaintiffs in Error, v. Nora Langston et al., Defendants in Error, and John L. Beauchamp et al., Interveners in Error, No. 15063. 105 Okla. 209, 232 P. 439. And the appellants in this case were plaintiffs in case No. 15063, but seem to have filed separate answers, to which the court sustained a demurrer, interposed on the part of the defendants. Plaintiffs refused to make further amendments and elected to stand on their petition, and present this appeal assigning as error the action of the court in sustaining the demurrer. The identical question raised in this case No. 14517 has been disposed of in case No. 15063, this day decided. The demurrer was sustained to the petition of appellant herein upon the theory that it showed upon its face that the statute of limitation had run. The warranty deed, under which appellees claim, was, attached to and made a part of plaintiffs petition, and upon its face shows to have been executed in 1902, and recorded more than 20 years prior to the institution of this suit, and the petition contains numerous other allegations showing delivery and due knowledge on the part of the plaintiffs of all the facts and circumstances surrounding this controversy, and knowledge of the open, notorious, adverse, peaceable and uninterrupted possession of the appellants of the lands in controversy since 1902, and other facts which give constructive notice; and we are inclined to the opinion that the judgment of the court in sustaining the demurrer was correct, and this case being an appeal based on the action of the court, in sustaining the demurrer of defendants to the appellant's petition, which is the same petition involved in case No. 15063, heretofore referred to, and the law applicable to and governing the rights of the appellants, H.M. McElhany and Nathan C. McElhany, being identical with the law that governs the rights of appellants in case No. 15063, J.L. McElhany and Jane Ledbetter, and the facts which are controlling being the same, we therefore adopt the syllabus and opinion in case No. 15063 as the syllabus and opinion in this case, and recommend that the same be affirmed.

By the Court: It is so ordered.