Miller v. Severs , 42 Okla. 378 ( 1914 )

Plaintiff in error will be designated as defendant, and defendant in error will be designated as plaintiff, in accord with their respective titles in the court below.

The gist of this action is whether the title of William Campbell of Ada, Ind. T., in and to lot 2, in block 93, in the town of Okmulgee, is paramount to that of William Campbell of Springfield, Mo. This necessarily raises the question as to the identity of the William Campbell to whom was scheduled said lot on May 12, 1902. The evidence shows that on August 4, 1902, J. Blair Shoenfelt, the then United States Indian agent at Muskogee, Ind. T., acknowledged receipt of $6.25, paid by William Campbell, care of F. B. Severs, Okmulgee, Ind. T.; the same being the first 10 per cent. payment on lot 2 in block 93. Severs paid the taxes on said lot until the year 1909, when the defendant Miller paid the taxes for that year. Severs built a ten-foot walk in front of said lot and paid the paving assessments. William C. Campbell's first connection with this lot is in the year 1906, when he asked to have the name of William Campbell changed to William C. Campbell on the records, and on June 25, 1906, paid the 90 per cent. due on the appraisement and had the patent sent to his agent at Springfield, Mo. This was four years after the initial payment of 10 per cent. had been made by Severs on the appraisement and the same scheduled to William Campbell of Ada, Ind. T., and after Frederick B. Severs had been in possession of said lot for several years, claiming ownership. This evidence as to prior possession with a claim of ownership under color of title is evidence of title, independent of the other strong circumstances in this cause showing title. It was held, inMooney v. Olsen, 21 Kan. 691:

"Possession of real estate with a claim of ownership is not only evidence of title, but is title itself in a low degree, and will descend to heirs; and prior possession with such a claim will, even in ejectment, prevail over a subsequent possession acquired by mere entry without any lawful right."

Duffy v. Rafferty, 15 Kan. 9; Simpson v. Boring, 16 Kan. 248, and cases cited; Hollenback v. Ess, 31 Kan. 87, 1 P. 275;Winans v. Christy, 4 Cal. 70, 60 Am. Dec. 597; Cent. Dig. vol. 17, p. 2097.

The lower court, after hearing all the evidence, decided that:

"Said lot was scheduled and patented by the Creek Nation and the United States of America, to William Campbell, of Ada, Indian Territory, now Oklahoma, and was by him conveyed to the plaintiff on October 6, 1902, by deed, which deed was properly recorded on July 3, 1903; that the defendant or his grantor, William C. Campbell, of Springfield, Mo., have paid the following amounts, to wit, $68.20, being the last 90 per cent. of the purchase price of said lot due the Creek Nation, which amount was paid June 25, 1906, and $47.50 taxes, for the year 1909, which amount was paid March 12, 1910. * * *"

It is apparent, therefore, that the question of the identity of the patentee was squarely before the court, and was a controverted question of fact, and the trial court decided the question of the identity in favor of William Campbell of Ada, Ind. T., based upon evidence reasonably tending to support such decision. It has been held by this court that:

"Where a cause is tried without the intervention of a jury, upon controverted questions of fact, and there is evidence reasonably tending to support the findings of the trial court, such findings will not be disturbed on the weight of the evidence, and when the finding is general, it includes all facts necessary to support the claims of the party in whose favor the judgment is rendered, and upon appeal this court will not review the evidence if it reasonably tends to support the issues upon which such finding is made, to determine the sufficiency thereof." (McCann v. McCann, 24 Okla. 271,103 P. 694, and cases cited.)

Craggs v. Earls, 8 Okla. 462, 58 P. 637; Smith v. Spencer,8 Okla. 495, 58 P. 638; Kilpatrick v. Brennan, 14 Okla. 42,76 P. 162; Murphy v. Classen, 15 Okla. 12, 79 P. 268; Moorev. Wallace, 16 Okla. 114, 82 P. 826; Hampton v. Culberson,29 Okla. 468, 118 P. 134; Lynch v. Halsell, 34 Okla. 307,125 P. 725, and cases cited; Wah-tah-noh-zhe v. Moore,36 Okla. 638, 129 P. 877, and cases cited; Farmers' Merchants' Nat.Bank of Hobart v. School Dist. No. 56, 35 Okla. 507,130 P. 549, and cases cited.

The second assignment of error is that:

"Plaintiff cannot recover when it is necessary for him to prove, as a part of his cause of action, his own illegal or fraudulent transactions."

The contention of defendant is that if the patent was intended, and issued, to William Campbell, of Ada, Ind. T., in trust for Severs, then Severs committed a fraud, and he should not be permitted to assert any rights under said patent, because the whole transaction was tainted with fraud in that Severs was not entitled to file on lot 2 in block 93, under section 19, of the Creek Agreement of 1901; he having exercised his rights under said section. The defendant admitted that the patent was issued to William Campbell, and the question is not whether the patent was fraudulently issued, but the identity of the patentee, William Campbell. It could not be contended that if a fraud had been perpetrated upon the Creek Nation or the United States, in the procuring of the patent, the defendant was injured thereby, and, if he was not an injured party to the transaction, he cannot be heard to complain of the fraud, if there be any; nor could he set up the defense of fraud in the procurement of the patent in an action of ejectment. It was said in Field v. Seabury, 19 How. 323, 15 L. Ed. 650:

"Where a grant or patent for land or legislative confirmation of titles to land has been given by the sovereignty or legislative authority only having the right to make it, without any provision having been made in the patent, or by the law, to inquire into its fairness as between the grantor and grantee, or between third parties, a third party cannot raise in ejectment the question of fraud as between the grantor and grantee, and thus look beyond the patent. * * * It is a question exclusively between the sovereignty making the grant and the grantee."

See Spencer v. Lapsley, 20 How. 264, 15 L. Ed. 903; Houck v.Kelsey, 17 Kan. 333; Chever v. Horner, 11 Colo. 68, 17 P. 495, 7 Am. St. Rep. 217; Meyendorf v. Frohner, 3 Mont. 282;Doolan et al. v. Carr, 125 U.S. 618, 8 Sup. Ct. 1228, 31 L. Ed. 844, and cases cited.

This cause should therefore be affirmed.

By the Court: It is so ordered.