Hammer v. Rogers , 21 Okla. 367 ( 1908 )

Plaintiff in error contends that, in suits for the recovery of possession of real property, the unsuccessful party is entitled to a second trial, regardless of the kind or character of the action, whether legal or equitable, so long as the real question at issue is a trial of the title to said real estate and the right of possession thereof. Section 4792, Wilson's Rev. Ann. St. 1903 (section 594, Civ. Code), provides:

"In an action for the recovery of real property the party against whom judgment is rendered may at any time during the term at which the judgment is rendered, demand another trial by a notice on the journal, and thereupon the judgment shall be vacated, and the action shall stand for trial at the next term."

In the case of Kennedy v. Haskell et al., 67 Kan. 612, 73 P. 914, Mr. Justice Cunningham, speaking for the court, says:

"While partition and a claim for rents and profits was joined with the action in ejection, such joinder and the relief thereby demanded were mere incidents of the main action, which was the recovery of real property, and followed, as a matter of course, the decision of that main question. The fact that the plaintiff set out in extenso the details of her claim, rather than that she confined herself as she might have done, to the strict legal statement that she had an interest in the land and was entitled to the possession of it, did not make the action less a one for the recovery of the land. We have already held (Cheesebrough v. Parker, 25 Kan. 566) that the joining of a claim for the mesne profits with one for the recovery of real estate does not deprive the party of a new trial as a matter of right; the recovery of such profits being a mere incident of the action. Within the logic of this case would fall the same conclusion as to partition, indeed such has been held in several cases in Indiana. Physio-Medical College et al. v.Wilkinson et al., 89 Ind. 23; Cooter et al. v. Baston et al.,89 Ind. 185; Kreitline et al. v. Franz et al., 106 Ind. 359, 6 N.E. 912; Powers v. Nesbit et al., 127 Ind. 497, 27 N.E. 501. This case cannot be held to be analogous to that of Douglas v.Nuzum, 16 Kan. 515, or Main v. Payne, 17 Kan. 608, which were actions to quiet title, nor to Keith v. Keith, 26 Kan. 26, which was an action to reform a deed. We are of the opinion that, where the principal object in an action is the recovery of real property, not whether plaintiff states his cause of action in the language of the statute or by detailing the facts at length, he is entitled to the second trial as a matter of right, and this, although he may demand other relief than such recovery, provided that such other relief is but incidental to recovery."

In jurisdictions where courts of law and equity are separate, distinct suits in partition are cognizable alone in chancery, and can be maintained only where the party seeking the partition is in possession of the lands sought to be partitioned.

The case of Rogers v. Clemmans et al., 26 Kan. 523, cannot be harmonized with the Kennedy Case, supra, the Kansas authorities being at variance upon this proposition.

In the case of Gray Cloud Land Co. v. Security Trust Co. etal., 93 Minn. 369, 101 N.W. 605, Mr. Justice Brown, speaking for the court, said:

"The only question presented is whether the action is one in which the plaintiff was, under the statute, entitled to a second trial as a matter of right, the action having been once tried, resulting in a judgment for the defendant. In determining this question we must look to the substance of the action as disclosed by the pleadings, and not to its form; and if, in fact, it is one in which the plaintiff seeks to recover the possession of land, though other issues may be presented, the right to a second trial exists. Gahre v. Berry, 79 Minn. 20, 81 N.W. 537; Finnegan v. Brown, 81 Minn. 508, 84 N.W. 343. With this rule in mind we examined the complaint, and find allegations to the effect that plaintiff was, on a certain date, the owner in fee simple, and possessed an absolute estate of inheritance in the land, which is described therein, that it was at that time in the possession of the same, and that, in the year 1894 or 1895, defendant Security Trust Company wrongfully and unlawfully entered upon the land while so in plaintiff's possession, and has since unlawfully held, and now holds, the same forcibly and adversely to the plaintiff. The prayer for judgment is, among other things, that plaintiff have judgment for the recovery of the land and the possession thereof. The complaint also alleges and sets forth the source of defendant's title, alleging that it was procured through the unauthorized and fraudulent conduct and acts of an agent of plaintiff, and that it is void, and of no effect. Further relief demanded is that the record evidence of defendant's title, so fraudulently obtained, be vacated, canceled, and set aside. It also demands that, in case the court should find that defendant's title was not obtained by the fraudulent conduct of plaintiff's agent, plaintiff have judgment against the agent, who was made a party to the action for damages. But the controversy between plaintiff and the Security Trust Company involves, solely and exclusively, the title and right to the possession of the land, and the case comes within the rule laid down in Gahre v. Berry and Finneganv. Brown, supra, and the court below properly denied the motion to strike the demand from the files. The new trial must be limited, however, to the controversy between these parties, and to the issues affecting the ownership, the right to the possession of the land, and the value of the use thereof from the time the defendant trust company took possession. It is not important that issues other than the title and right to the possession of the land are involved in this action, for upon all issues not affecting such title or right to the possession the former judgment is final and conclusive. In the case ofSchmitt v. Schmitt, 32 Minn. 130, 19 N.W. 649, which was an action for divorce, the court held that, as the title and right to the possession of certain land was also involved in the litigation, a second trial of the action was proper upon those questions, notwithstanding the fact that the action was in the form of one for divorce."

Section 5845 of the General Statutes of Minnesota of 1894 (volume 2) provides as follows:

"Any person against whom a judgment is recovered in an action for the recovery of real property, may, within six months after written notice of such judgment, upon payment of all costs and damages recovered thereby, demand another trial by notice to the adverse party, or his attorney in the action; and thereupon the action shall be retried, and may be brought to trial by either party: Provided, that in all causes in which an appeal shall be taken from such judgment to the Supreme Court, such demand for another trial may be made at any time within six months after written notice of the determination of such appeal, and thereupon the action shall be retried, and may be brought to trial by either party."

In the case of Dangerfield v. Paschal, 20 Tex. 540, Mr. Justice Lipscomb, speaking for the court, said:

"There was a former suit between the same parties for the same land, the subject-matter of this suit, in the nature of equitable proceedings, in which the plaintiffs allege that the defendants have set up claim to said land by virtue of locations and patents; that the plaintiffs are the legal andbona fide owners of the said land; that the location so made by the defendants and the claim of title under the same form a cloud on the plaintiff's title; that the defendants have committed trespass upon the said land by cutting down and carrying away timber. They pray that, by decree of the court, the cloud upon their title may be removed; that defendant's location and patents be vacated; that title to said land be decreed to be in the plaintiffs; that an account be taken of the damage committed by said trespass, and defendants be decreed to pay the same to the plaintiffs; and that defendants be enjoined from committing further trespass on the said land. The defendants answered, denying the plaintiffs' right or title to the land, and claiming the same under and by virtue of locations and valid land certificates on the said land, on some of which certificates patents have been issued to the defendants. On trial of that suit judgment was given for the defendants, and on appeal the judgment was affirmed. The plaintiffs then brought another suit for the same land, and dismissed it, and brought this suit. The defendants pleaded the former judgment, which plea was sustained, and the plaintiffs appealed. The appellants claim a reversal of the judgment in this case, under the seventh section of 'An act to provide the mode for trying titles to land.' It is as follows: 'That in an action of trespass to try titles to land, commenced within the time limited by law, the plaintiff shall proceed with all convenient expedition to the trial of the same, and in case a verdict and judgment shall pass against him in such action, such verdict and judgment shall not be conclusive and definite against the plaintiff, but at any time within one year the said plaintiff or any other person claiming under him, shall have a right to commence his action for the recovery of said lands denovo, and prosecute the same. * * *' The majority of the court believe that under the law cited the plaintiffs had a right to two trials on the merits, and that the fact of the first suit, not being brought under the statute, will not abridge that right; that the suit that had been brought and dismissed after first was decided interposes no bar to this suit, because it was not tried upon its merits, and this suit was brought within 12 months after the decision of the first. The section of the statute before cited seems to require that the second suit shall be tried on the merits of the title to constitute a bar to another action. In continuation of the part of the section recited, it is as follows. i. e.: 'But in case a verdict and judgment again pass against such plaintiff, then such second verdict and judgment shall be finally conclusive on the part of every such plaintiff, and he shall be forever barred and excluded from any further action or suit for the recovery of the same land.' The second suit was not tried and prosecuted to verdict and judgment. The conclusion is, therefore, that the court below erred in sustaining the plea of former recovery."

A rehearing having been granted in said case thereafter, Mr. Justice Roberts delivered the opinion of the court thereon, wherein he said:

"The former suit, the judgment in which is set up in bar of this, is of a mixed character, to establish plaintiffs' title as against a number of persons claiming title to the same land under adverse titles, and to quiet plaintiffs in the enjoyment of the same, free from litigation and harassment in relation thereto. It is in the nature of a bill of peace, 'which is brought by a person to establish and perpetuate a right which he claims, and which, from its nature, may be controverted by different actions.' 2 Story, Eq. Jur. § 853. 'Courts of equity, having a power to bring all the parties before them, will at once proceed to the ascertainment of the right; and, if it is necessary, they will ascertain it by an action or issue at law, and then make a decree finally binding all the parties.' Id. § 854. The petition alleged rights in the plaintiffs and trespasses by defendants. It has been held by this court at an early day that, in an action of trespass to try title to land, several defendants might be joined in the same action by a plaintiff whose right was the same as against all the defendants. The point of difference between this and an ordinary suit of trespass to try title was that in this plaintiffs sought to set aside the patents and conveyances of defendants, as having been made and procured in fraud of their rights. The alleged fraud did not relate to any transaction between plaintiffs and defendants which rendered them fraudulent. Defendants' title had no connection with that of plaintiffs', except that of locality. Each party claimed under different titles emanating from the government. If plaintiffs' title was good, and they obtained a judgment upon it against the defendants, that settled plaintiffs' right, for the time, at any rate. Whether this would entitle plaintiffs to enjoin defendants from hereafter suing on their title would depend upon the facts additional and cumulative to those necessary to the maintenance of plaintiffs' mere superior right to the land. The superaddition of these facts, by which the plaintiff sought this additional remedy, does not the less render it a suit to try title; for the title of plaintiffs must be established as a prerequisite to the additional relief. If it be established, the plaintiffs would be entitled to a judgment to that effect whether the additional facts alleged and proved entitled them to this additional relief or not. The omission to indorse on the petition that the action was brought to try the title, as directed in the statute, cannot control the nature of the suit, when it necessarily involved the right of the plaintiffs' title; and if its character and object could have been mistaken, by which the defendants were about to be misled in their defenses, they should have excepted to the petition on that ground."

See, also, Atchison v. Owen, 58 Tex. 614; Thompkins v.Railroad Co., 30 S.C. 481, 9 S.E. 521; Hunter et al. v.Christman, 70 Ind. 440; Keller v. Hawk, 13 Okla. 261,74 P. 106; Equator Mining Milling Co. v. Hall et al., 106 U.S. 86, 1 Sup. Ct. 128, 27 L.Ed. 114; Smale v. Mitchell, 143 U.S. 99, 12 Sup. Ct. 353, 36 L.Ed. 90.

Under the old common law the defeated party in a judgment in ejectment, whether claimant or defendant, was always at liberty to bring a new action, and from the structure of the record it was impossible to plead a former recovery in bar of the second suit, as the plaintiff was ever a fictitious person, and a demise could be laid in so many different ways that it never could be made to appear that the second ejectment was brought upon the same title as the first. Obviously, therefore, the judgment could never be final, and the only permanent relief which the successful party could obtain was by a perpetual injunction against the defendant. Even this could be procured only in exceptional cases. The general rule was that a recovery in ejectment was never conclusive upon the defendant, or those claiming under him. As the action later on was invoked for the establishment of title, as well as for a recovery of possession, the vexatious privilege of unlimited litigation was abridged, and by statute but one new trial was permitted as a matter of right, and when two verdicts of the same tenor had been returned, the judgment rendered thereon was taken to be conclusive. At that time, however, the courts of law and of chancery were separate and distinct. This has become the declared policy of a number of the code states, some of which, however, have abandoned it. In view, however, of the present conditions it rests on but little legal reason; though it seems to have become so firmly established in the jurisprudence of American states that it will probably long remain. The only reason that now exists in support of the doctrine is the sacredness of the home, whilst under the old feudal system vast estates, with castles and privileges, were created, and the different forms of actions and writs came into existence for their protection. Under our institutions such estates are not for the best interests of our country, and in this state, which was populated by homesteaders and homeseekers, such vast-landed estates are not favored. Hence, under a commonwealth whose policy is to foster and build up homes, rather than the establishment of a tenantry system, and with a view of making the title and possession of home more secure, naturally there would follow the reason for a second trial of a suit for the recovery and possession of land.

Under our practice, though, a suit for the recovery and possession of land should be properly termed one in equity; and, though the parties thereto, as a matter of right, be not entitled to a jury trial, why would not the same reason exist for a trial anew where its purpose is to try title and recover possession? Where questions of fact, other than by the pleadings, arise, the court may direct a reference to a referee to report the facts (section 4479, Wilson's Rev. Ann. St. 1903), and when the report as to the facts by the referee has the effect of a special verdict (section 4480, Wilson's Rev. Ann. St. 1903) the same reason is obvious.

We conclude that, as a matter of right, the plaintiff was entitled to a second trial, and it is so ordered.

Reversed and remanded.

All the Justices concur.