One who is in possession of land with no right or title thereto except mere possession cannot question the right of one who has a chain of title thereto which is apparently perfect, except that one of the grantors in the line of conveyances was a minor when he executed a deed to said premises.10

An equitable title will support ejectment.11 Plaintiff must have some title, either legal or equitable, and a contract in form a lease, but in fact an option contract, will not warrant recovery against one claiming title.12 However, one holding a valid contract for a deed, and having fully complied with its conditions, has such an interest as will enable her to maintain ejectment against one in possession claiming the land under the same contract for a deed.13

In an action to recover the possession of land, where defendant shows no title except such as his possession may give him, and

ernment, can maintain ejectment against one who is in possession thereof as his tenant. Shy v. Brockhause, 54 P. 306, 7 Okl. 35.

Under Code 1890, c. 70, art. 32, ejectment will lie by a landlord to obtain possession of property for the nonpayment of rent. Pappe v. Trout, 41 P. 397, 3 Okl. 260.

Under article 32, c. 70, Laws 1890, a landlord may maintain an action for the possession of property held by his tenant. Hamill v. Jalonick, 41 P. 139, 3 Okl. 223.

10 Rickershauser v. McMahan, 18 P. 217, 39 Kan. 288.

11 Mitchell v. Humphrey, 129 P. 744, 36 Okl. 711.

An equitable title, if the paramount one to the land, is sufficient to maintain ejectment against the holder of the legal title. Pope v. Nichols, 59 P. 257, 61 Kan. 230.

An equitable title to a tract of land is sufficient to authorize the maintaining of an action in the nature of ejectment by the holder thereof for the possession of said tract, under section 614 of the Code of Civil Procedure. Laughlin v. Fariss, 50 P. 254, 7 Okl. 1.

12 McElroy v. Moose, 51 Okl. 173, 151 P. 857.

18 Landrum v. Landrum, 50 Okl. 746, 151 P. 479.

A man who had settled on government land, and entered it under the homestead laws, left the west half of it by will to his wife, and the east half to his daughter. The wife orally gave the east half to the daughter. promised her a deed, and then took out the government patent to herself. The daughter occupied for two years and made valuable improvements on the faith of the promise, and then went away for 10 years, the mother in the meantime occupying, but recognizing her daughter's right. Then the daughter returned, occupied, and improved further. The mother could not maintain ejectment against the daughter. Newkirk v. Marshall, 10 P. 571, 35 Kan. 77.

plaintiff shows prior possession under an invalid tax deed, and the payment of taxes, a judgment for plaintiff is proper.14

Where one in peaceable possession of land is ousted by a bare trespasser, who enters without claim of title, he may recover in ejectment on proof of prior possession, though such possession was not held for the time and in the manner required for a prescriptive title.15

Where the secretary and general manager of a corporation, engaged in selling town lots, verbally agree to sell a lot to defendant, who paid for said lot by labor, entered thereon, and made valuable improvements, he acquires an equitable title.16

§ 1760a. Petition-Form

(Caption.)

Now comes the plaintiff, herein complaining, and says:

1. That the defendant is a municipal corporation of Oklahoma, being a city of the first class, and located in

county, aforesaid.

2. That the plaintiff is the legal and equitable owner of the real estate herein described, and fully entitled to the possession thereof, and of which the defendant unlawfully keeps him out of the possession, being the following described property, to wit: (Describing same.)

3. That prior to the filing hereof, being far more than four weeks thereto, plaintiff presented his claim to defendant for uses, rents and profits thereon, as well as a demand for possession of said real estate, described as aforesaid, but that the defendant refused to pay said claim, and still retains possession of said real estate, to the damage of plaintiff in the sum of dollars per year, since the

19—.

day of 4. Said real estate is further described on the —— plat, being the original plat of said city, as lots Nos.

of block No.

said plat, as filed in the office of the county clerk of said county. Wherefore plaintiff prays judgment herein against defendant:

14 Christy v. Richolson, 29 P. 398. 48 Kan. 177.

15 Redden v. Tefft, 29 P. 157, 48 Kan. 302.

of

A person who held possession of real estate under a claim of ownership is entitled to recover the same as against one who has no right or title to the same. Judgment, Manspeaker v. Pipher, 48 P. 868, 5 Kan. App. 879, affirmed. Hentig v. Pipher, 51 P. 229, 58 Kan. 788.

16 Southside Town Min. & Mfg. Co. v. Rhodes, 6 P. 278, 33 Kan. 229.

First. For the recovery of said real estate, and damages for withholding the possession thereof.

Second. For other and further relief.

X. Y., Attorney for Plaintiff.

NOTE. From petition in Oklahoma City v. McMaster, 12 Okl. 570, 73 P. 1012.

§ 1761. Right to recover

Under the statute, a judgment for plaintiff in ejectment can be had only upon proof of allegations of his petition, irrespective of defendant's default, appearance, demurrer, or other action.17

Plaintiff must show that the defendant unlawfully and without right keeps the plaintiff out of possession before he can recover in the action.18

An action by one who has never voluntarily parted with title to realty to recover it, with allegation that the proceedings under which defendant claimed title by adverse possession are void on the face of the mandatory record, is in equity questioning the validity of such prior proceeding.19

Where one without claim of title occupies land theretofore vacant as the property of a holder of a tax title with the consent of such holder and in subordination to his title, and the tax title has been of record for more than five years, the holder of the title is in actual possession and may maintain ejectment against a party wrongfully dispossessing him.20

One claiming possession under a lease executed by one purporting to be the owner's guardian must show the alleged guardian's authority to make the lease.21

Plaintiff need only show color of title, as against defendant in possession without color or claim of title, other than by possession.22

17 Buell v. U-Par-Har-Ha, 60 Okl. 79, 159 P. 507.

18 Hurst v. Sawyer, 37 P. 817, 2 Okl. 470.

19 Richardson v. Carr (Okl.) 171 P. 476.

20 Buehler v. Teetor, 114 P. 387, 84 Kan. 281.

21 Bilby v. Brockman, 55 Okl. 714, 155 P. 257.

22 Douglass v. Ruffin, 16 P. 783, 38 Kan. 530.

As between E., in possession under a void tax deed, and B. and D., asserting title under a quitclaim from one having no interest, E. has the paramount right to possession. Sarver v. Beal, 13 P. 743, 36 Kan. 555.

HON.PL.& PRAC.-104

(1649)

Plaintiff need not have the legal title or a title paramount to that of all others, but need only have some estate, legal or equitable, paramount to that of defendant; 23 that is, plaintiff may recover without having all the title, either legal or equitable, or without having a title paramount to all others, if he has some estate paramount to any right thereto in defendant, although the legal title may be outstanding in third person.24

A deed intended merely as security leaves the grantor the real owner, with rights sufficient to entitle him to maintain ejectment against a stranger to the deed in possession under a redeemable. tax lien.2

25

Where a husband and his son conspired to defraud the wife of her interest in the real estate of her husband, and the husband executed a note, without consideration, to a fictitious person, under

23 Wilson v. Bombeck (Okl.) 127 P. 440.

In an action of ejectment, or in an action for the recovery of real property, the party holding the paramount title is entitled to recover, whether such title be legal or equitable. Atchison, T. & S. F. Ry. Co. v. Pracht, 1 P. 319, 30 Kan. 66.

In ejectment plaintiff claimed title under a certificate issued by a townsite company, duly assigned, showing the holder to be entitled to a good and sufficient warranty deed as soon as such company should receive the title to the town site and such town-site company obtained the title through the probate judge, but never made a deed to the assignee of such certificate, because its corporate existence had expired by limitation. Defendant claimed under tax deeds which were void, and the fact that he had been in possession of the premises and made lasting and valuable improvements thereon more than one year before suit was brought. Held, that plaintiff's title was paramount to that of defendant, and that he was entitled to recover as the equitable owner of the land. Riggs v. Anderson, 27 P. 112, 47 Kan. 66. Plaintiff can recover only by showing either a legal or equitable title in himself and the right of possession. Jennings v. Brown, 94 P. 557, 20 Okl, 294. L. died, leaving land to his heirs, subject to a lease to R., who, after remaining in possession for over 11 years, abandoned it to the heirs. Afterwards R. executed a warranty deed to P., who recorded the deed, and remained in possession for over a year, when she abandoned the premises, and the heirs took peaceable possession. P. could not recover possession of the land from the heirs and their tenant. Pankau v. Larzelere (Kan. App.) 52 P. 906.

24 Blanchard v. Reed (Okl.) 168 P. 664, 418.

25 Hulsman v. Deal, 136 P. 220, 90 Kan. 716.

Where a purchaser moves upon the land purchased, places a dwelling house thereon, makes other permanent improvements, and continues to live thereon, one who furnished the purchase money and holds a deed absolute in form given to secure the same cannot maintain ejectment against the purchaser. Abrams v. Abrams, 88 P. 70, 74 Kan. 888.

which they caused a judgment to be rendered and the land sold and the title thereto passed to the son, the wife may maintain ejectment to recover her interest against the son at any time within the period of limitations after the death of her husband.26

Ejectment will not lie by a vendor against the purchaser in possession under an executory contract and not in default;27 but a vendor may maintain ejectment against a vendee in possession under an executory contract of purchase, when the vendee is in default.2

Where the vendor of real estate seeks to recover the possession of premises against a purchaser to whom he has made a contract for the sale of the land, and whom he has put in possession thereof, and who has made default in the payment of the purchase price, the remedy is by an action in the district court to rescind the contract, or to foreclose the equitable interest of the purchaser.29 § 1762.

Oil leases

Though the statute authorizes a recovery of land held for a term of years in ejectment, it does not authorize the maintenance of such action to recover land covered by an oil and gas lease as against the lessor or his grantee when the lessee has never had possession under the lease.80

§ 1763. Recovery where right ceases during action

"In an action for the recovery of real property, where the plaintiff shows a right to recover at the time the action was commenced, but it appears that his right has terminated during the pendency of the action, the verdict and judgment must be according to the fact, and the plaintiff may recover for withholding the property." 31

26 McKelvey v. McKelvey, 89 P. 663, 75 Kan. 325, 121 Am. St. Rep. 435. Where plaintiff seeks to recover real estate on the strength of a paramount equitable title against a defendant holding legal title, the action is in the nature of a suit in equity, and the rights of the parties must be governed by the rules pertaining to suits in equity. Wilson v. Bombeck (Okl.) 127 P. 440. 27 Talley v. Kingfisher Improvement Co., 103 P. 591, 24 Okl. 472, 20 Ann. Cas. 352; Kingfisher Improvement Co. v. Talley, 51 Okl. 226, 151 P. 873. 28 Lonsdale v. Reinhard (Okl.) 176 P. 924.

29 Smith v. Kirchner, 54 P. 439, 7 Okl. 166.

30 Kolachny v. Galbreath, 110 P. 902, 26 Okl. 772, 38 L. R. A. (N. S.) 451. 31 Rev. Laws 1910, § 4931.