Kassner v. Alexander Drug Co. , 194 Okla. 36 ( 1943 )

It is argued by plaintiffs in error, on rehearing, that the right or interest retained by Ames and Holzapfel by their deed to the railway company of April 16, 1902, was not alienable by them, and that since it was not alienable the presumption cannot be indulged that by their deed to the Alexander Drug Company, made in 1905, they intended to convey such right or interest, and that the rule stated in Cuneo v. Champlin Refining Co., 178 Okla. 198, 62 P.2d 82, and followed in other cases, does not apply. They rely upon Oklahoma City v. Local Federal Savings Loan Ass'n, 192 Okla. 188, 134 P.2d 565, and Jones v. Oklahoma City, 193 Okla. 637, 145 P.2d 971, as authority for the proposition that such right was not alienable. The cases thus relied upon are not in point. They involved deeds that were governed by the 1890 Statutes, which specifically made the right of re-entry inalienable except to the person owning the estate held on condition subsequent. The property Code was rewritten in 1893, and was carried into the 1903 (Wilson) Code, which governed the deed made in 1905 to the Alexander Drug Company. Under the 1903 Code the distinctions between deeds on condition subsequent and deeds on conditional limitation are abolished, and all future interests are either reversions or remainders (§§ 4033, 4034), and every remainder "is to be deemed a conditional limitation" (§ 4043). Section 4034 provides:

"When a future estate, other than a reversion, is dependent on a precedent estate, it may be called a remainder, and may be created and transferred by that name."

Under our property Code as it has existed since 1893 (60 O. S. 1941 §§ 1 to 349), interests in real property and the right to acquire and transfer them are governed by statute. Knight v. Kimble, 99 Okla. 48, 225 P. 909; Porter v. Porter,97 Okla. 231, 222 P. 971; Maynard v. Hustead, 185 Okla. 20, 90 P.2d 30.

It follows that, in 1905, the interest retained by Ames and Holzapfel in the property conveyed to the railway company in 1902 was alienable. Being alienable, the rule stated in Cuneo v. Champlin Refining Co., above, and followed in Oklahoma City v. Dobbins, 189 Okla. 381, 117 P.2d 132, is applicable, and the effect of the deed to the Alexander Drug Company, made in 1905, was to transfer to the Alexander Drug Company the remainder in the 20-foot strip involved in the present case. The Dobbins Case involved interests, deeds, and facts similar to those involved in the present case. In that case, however, the alienability of the interest owned by Almira Wilkinson in the land that had been conveyed to the railway company was not questioned, and hence was assumed and not discussed in the opinion. The deed there involved was made in 1900, at a time when the interest so retained was alienable under the statutes then in force, and which are still in force.

The petition for rehearing is denied.

CORN, C.J., and OSBORN, HURST, DAVISON, and ARNOLD, JJ., concur. WELCH, J., concurs in result. RILEY and BAYLESS, JJ., concur in denying rehearing. GIBSON, V.C.J., dissents.