Wirick v. Nance , 178 Okla. 180 ( 1936 )

In their argument on rehearing the defendants in error state as follows:

"The facts in this case as stated in the opinion are not in dispute. It is the legal effect of these facts when applied to the rights of a minor which is disputed. If Bertha Pauline Nanee had been an adult a different situation would have arisen, and the authorities cited by this court in said opinion would have been applicable. It is in applying decisions where the rights of an adult cotenant are involved to this case where the rights of a minor cotenant are involved that this court fell into error, in our opinion."

It is seen that defendants in error, while recognizing in the opinion the proper application of the rule relative to adverse possession as between tenants in common, take exception to the application of that rule to an infant cotenant. It is urged in this connection that all infant cotenant cannot be charged in law with notice of adverse holding of real estate until he is capable in law of receiving such notice, and there can be no actual ouster, or adverse holding as to the infant before he reaches majority.

The agreed statement of facts in the instant case shows that the Woodroof heirs, and their assigns, were in complete, open, notorious, adverse, and continuous possession of the lands ill question and claiming the same as against the whole world, and especially as against Bertha Pauline Nanco. This state of facts brings the case squarely within the scope of the rule announced in Beaver v. Wilson, 117 Okla. 68, 245 P. 34, unless the minority of Bertha Pauline Nance furnishes an exception.

The rule is there stated as follows:

"The statute of limitations does not begin to run in favor of one cotenant of land in possession, against another cotenant thereof, until actual ouster by the former or some other act or acts on his part amounting to a total denial of the rights of the latter, and until notice or knowledge of the act or acts relied on as an ouster is brought home to him.

"The notice or knowledge required must be either actual, or act or acts relied on as an ouster must be of such an open and notorious character as to be notice of themselves, or reasonably sufficient to put the disseized cotenant on inquiry, which, if diligently pursued, will lead to notice or knowledge of the fact."

We are unable to agree with defendants in error's contention and must hold that that the foregoing rule applies alike to minor and adult disseized cotenants. The suspension of the statute of limitations as against an infant, where recognized, seems not to rest upon a doctrine of common law, but upon express statutory provision, and the elements that constitute the acquisition of title by adverse possession against an infant are generally the same as those applicable in other cases. 31 C. J. 1011, sec. 49; Vance v. Vance, 108 U.S. 514, 27 L.Ed. 809. Our statute (section 11729, O. S. 1931) recognizing titles acquired by adverse possession saves no class of persons from the operation thereof; and our statute of limitations (section 99, O. S. 1931) fails to exclude infants from its operation. The ouster sets the statute of limitations running in favor of the disseizor, but section 100, O. S. 1931, requires that as against a minor the adverse holding must continue for two years after he reaches majority.

It has been definitely held ill California that an infant can be ousted from his possession by either a stranger or a cotenant and that the effect which the notice of such ouster will produce is not the test of the sufficiency thereof, and that the same acts and declarations which constitute an ouster apply to an infant as well as to an adult, whether the notice of ouster be actual or presumptive. Winterburn v. Chambers, 91 Cal. 170, 27 P. 658; Akley v. Bassett, 189 Cal. 625, 209 P. 576.

Unless an ouster is made inoperative as against an infant by statutory provision, it is usually held that the infant may be ousted as effectively as an adult. Vance v. Vance, supra; Dewey v. Sewanee Fuel Iron Co., 191 F. 450 (Tennessee Statute); Campbell v. Whimnan, 183 Ky. 256, 209 S.W. 29; McGraw v. Rohrbough, 74 W. Va. 285, 82 S.E. 217. Noue would seriously contend that a cause of action does not immediately accrue to an infant upon being denied possession of his realty. When the cause accrues, the statute commences to run, and by legislative grace (section 100, O. S. 1931) it is allowed two years after majority to assert its rights by proper action.

Here no title is claimed by adverse possession as against the minor, but adverse possession is asserted and proved for the purpose of invoking the champerty statute as a defense against the deed executed by the ousted cotenant to parties not in possession. In the instant case the minor could have maintained her action for possession at any time within 15 years from the date the statute commenced to run or, if the 15 years hall run prior to the date of her majority, she was vested by legislative grace with an additional two years after majority in which to assert her rights. No rights of the minor are defeated, but, as is the case with any other disseized cotenant, a conveyance of her interest to others than those in possession was void.

Our statutes on this subject will not permit a contrary holding.

The petition for rehearing is denied.

McNEILL, C. J., and BUSBY, WELCH, PHELPS, anti CORN, JJ., concur. OSBORN, V. C. J., not participating. RILEY and BAYLESS, JJ., absent.