Jennings v. Brown , 20 Okla. 294 ( 1908 )

This being a statutory action in the nature of ejectment, plaintiff could recover only by showing legal or equitable title in himself and the right of possession. 2 Wilson's Rev. Ann. St. § 4788. Defendant claims that plaintiff's chain of title was broken by the deed of January 12, 1895, from Lynch to the Ponca City Land Improvement Company, and the cancellation of the deed dated September 10, 1895, wherein said company reconveyed to Lynch. As the cause wherein the Ponca City Land Improvement Company, J. W. Lynch, and others were parties was pending at the time of the conveyance from Lynch to Brown on August 4, 1897, consequently Brown purchased said lot subject to the determination of that suit, though never having been made a party to the same, which resulted in the decree of February 28, 1898, offered in evidence by the defendant in the court below, unless prior to or after such final decree the board of directors of said company for the original, or other valid, consideration of said deed of August 4, 1897, from Lynch to Brown and Knapp, ratified the same, or did some act to create an estoppel after Brown had taken actual possession of the west half of said lot. On December 18, 1897, when said deed from Lynch to Brown and Knapp was ratified by the board of directors of said company, the legal title, as well as the actual possession, of the west half of said lot was then in said Brown and Knapp. This validated the title of said Brown and Knapp to said lot 19, block 6, in question, so far as said Ponca City Land Improvement Company was concerned. And therefore said Brown and Knapp, never having been made parties to said action after the date of said ratification, were as to said lot not affected by said decree. Ansonia v. Cooper et al.,64 Conn. 543, 30 A. 760. The subsequent delivery of a deed by said company covering said lot to E. J. Dick, attorney for said Brown, shows what the intention of the company was, and accords with said ratification resolution. If the Ponca City Land Improvement Company were to institute an action against Brown for the possession of the portion of said lot that he is in the actual possession of, would not said ratification act as an estoppel at least against said company? Sheldon H. B. Co. v.Eichmeyer H. B. U. Co., 90 N.Y. 607; McCreary v. Pearsons,31 Kan. 451, 2 P. 570. Hence we conclude that the legal title was in the plaintiff, and such title as would entitle him to judgment for possession unless defendant had such an agreement with the party in whom was vested the legal title, or had authority to act, as would give him a right to enforce specific performance. There is no proof to show that the oral agreement with Dalton, the vice president of the company, as construed by the defendant, was ratified or acquiesced in in such a way as to create an estoppel, by its board of directors, which would certainly have been necessary before defendant would be entitled to have such contract performed in equity. 1 Wilson's Rev. Ann. St. 1903, § 780;Union Pacific Ry. Co. v. McAlpine, 129 U.S. 305, 9 Sup. Ct. 286, 32 L.Ed. 673.

The next contention is that, at the time of the execution and delivery of the deed from Lynch to Brown and Knapp, Jennings was in such adverse possession of the lot as to render said deed void. Section 2111 of Wilson's Rev. Ann. St. 1903, vol. 1, is in haec verba:

"Every person who takes any conveyance of any lands or tenements, or of any interest of estate therein, from any person not being in the possession thereof, while such 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 the possession of such lands or tenements, is guilty of a misdemeanor."

In this record there is nothing to indicate that Brown and Knapp, or either of them, knew anything of the pendency of such suit. And in the absence of record of conviction under said section, or evidence proving such knowledge of the pendency of such suit, the presumption is that they had no such knowledge. Section 2112 of Wilson's Rev. Ann. St. 1903, vol. 1, is as follows:

"Every person who buys or sells, or in any manner procures, or makes or takes any promise or covenant to convey any pretended right or title to any lands or tenements, unless the grantors thereof, or the person making such promise or covenant has been in possession of the same, or of the reversion and remainder thereof, or have taken the rents and profits thereof, for the space of one year before such grant, conveyance, sale, promise or covenant made, is guilty of a misdemeanor."

The question arises now as to whether or not Lynch had been in possession of said lot for the space of one year at the time Lynch conveyed to Brown and Knapp. Long-Bell Lumber Co. v.Martin, 11 Okla. 192, 66 P. 328; Huston v. Scott (decided by this court at this term), ante, p. 142, 94 P. 512. Had there been any adverse possession to Lynch and said company whatever, much less under color of title?

"* * * The possession of a vendee holding under a parol executory contract of purchase is not adverse to that of this vendor until he has performed the conditions therein or repudiated the latter's title." (1. Cyc. p. 1044.)

The occupancy of said lot by Jennings under his own showing was neither adverse to the company nor to Lynch. Brown v. Huey,103 Ga. 448, 30 S.E. 430; Kirk v. Taylor, 8 B. Mon. (Ky.) 267;Ganble v. Hamilton, 31 Fla. 401, 12 So. 230; Lucas v.Brooks, 18 Wall. (U.S.) 436, 21 L.Ed. 779; Kirk v Smith, 9 Wheat. (U.S.) 241, 6 L.Ed. 81; 1 Warvelle on Vendors, p. 201. Verbal permission, by the vendor of land to the purchaser, to take possession at any time, is a mere license, revocable at pleasure, so long as the terms of the sale are unfulfilled.Gault v. Stormont, 51 Mich. 637, 17 N.W. 214.

The plaintiff at the time of the institution of this action being vested with title, and defendant's contract not being enforceable either against the company or Lynch to the extent of establishing title in himself, and there being no adverse possession under color of title, the judgment of the court below should be affirmed, and it is so ordered.

All the Justices concur.