Van Valkenberg v. Venters

LUTTRELL, J.

This is an action in unlawful detainer brought by the plaintiff, Charles Venters, against the defendants, F. Van Valkenberg and Mrs. F. Van Valkenberg. Plaintiff recovered judgment in the justice court and defendants appealed to the district 'court of Oklahoma county, where a jury was waived and the case tried to the court. Judgment was rendered for plaintiff, and defendants appeal.

Defendants contend that the evidence adduced by plaintiff was not sufficient to establish ownership of the property by plaintiff, and also failed to establish that the relationship of landlord and tenant existed between plaintiff and defendants.

At the trial plaintiff testified that he was the owner of the property, a dwelling house in Oklahoma City; that he bought the property on May 26, 1945; that he purchased the property for a home to move his family into, having been evicted from the place he was then renting. He offered in evidence a permit from the Rent Director of the Office of Price Administration, giving plaintiff permission to bring an action to evict, the tenants in the property at the expiration of three months after September 4, 1945, the date of the filing of the application for a permit. In this permit plaintiff is shown as the purchaser of the property, and Tex New-som as the vendor. The notice also refers to defendant F. Van Valkenberg as the tenant whom permission is given to evict.

Plaintiff also offered in evidence a 30-day notice to terminate tenancy, signed by him and properly served on defendants more than 30 days prior to the institution of the action. In this notice the property was described; plaintiff designated himself as landlord and defendants as tenants, and stated that defendants were month to month tenants. The notice concluded with the following statement:

“This notice in no way affects the payment of your rent for the period of November 17, 1945, to December 17, 1945 but is being served on you in order to terminate your tenancy as of December 17, 1945.”

Defendants demurred to the evidence offered by plaintiff, and introduced no evidence in their behalf.

When the nature of the action is considered, we think the evidence offered by plaintiff was sufficient to establish prima facie the ownership of the property by him, and that defendants were in possession thereof as his tenants. In an action for forcible entry or unlawful detainer, title to the real estate is only an incident, the object being to show a sufficient right of possession to sustain the judgment therefor in the absence of proof to the contrary. In such case it is not essential for plaintiff to produce documentary evidence of title.

In 32 C.J.S. p. 725, section 794, the general rule is stated as follows:

“Where the title to real property is not in issue but is only collaterally involved, or where it is necessary for a party to make only a prima facie showing of ownership, the best evidence rule is not applicable, and the fact of title or prima facie right of ownership may be established by parol evidence.”

To the same effect is 22 C. J. p. 993, section 1249. Numerous authorities supporting the rule stated are cited.

41 O.S. 1941 §1 provides as follows:

“Any person in the possession of real property, with the assent of the owner, is presumed to be a tenant at will, unless the contrary is shown, except as herein otherwise provided.”

The giving of the notice to terminate tenancy showed a recognition by plaintiff of the occupancy of the premises by defendants as tenants, and that such occupancy was with his assent, whether or not the occupancy was with the assent of the owner could be determined from his acts and conduct, since it depended wholly upon his attitude or will. In the absence of any assertion by defendants of a right to occupy the premises other than as tenants, the trial court, under the above statute, was justified in concluding that they occupied as tenants at will.

In Truax v. Capitol Life Insurance Co., 166 Okla. 153, 26 P. 2d 755, we held that in a law action where a trial by jury was waived, the judgment of the trial court would not be disturbed on appeal because of the insufficiency of evidence, if there was any evidence reasonably tending to support the judgment. We hold that the evidence in the instant case is sufficient to sustain the judgment rendered.

Affirmed.

HURST, C.J., DAVISON, V.C.J., and RILEY, CORN, and ARNOLD, JJ., concur. GIBSON, J., dissents.