Sec. 1161. Form for judgment on verdict for defendant.

JUDGMENT FOR DEFENDANT.

This day came the parties by their attorneys, and thereupon came a jury, to-wit:

and

who, being impaneled and sworn as a jury, to speak the truth upon the issues joined between the parties upon their oaths, do say that the said is not guilty, in manner and form, as said plaintiff in his petition has complained against him. IT IS THEREFORE considered that said defendant go hence without day and recover of said plaintiff his costs herein expended, taxed at $

Judge of said Court.

Sec. 1162. The writ of possession or habere facias posses

session of the following described real estate, to-wit: (Here specifically describe same), together with $

damages and

THEREFORE, we command you, that, without delay, you cause the said

to have possession of said real estate, with the

appurtenances, from the said or any person who has come in under him pending this suit, and in what manner you shall have executed this, our command, in this behalf, make

appear to our said district court, on or before the

day of

19-.

We also command you that of the goods and chattels, and for want thereof, then, of the lands and tenements of the said in your bailiwick, you cause to be made the sum of damages, and $ costs of suit, with interest

$

thereon, from the

day of

19, which the said

on the day and year first aforesaid, by the judgment of the same court, recovered against the said

said

whereof the

is also convicted, as appears to us, of record, and have you said moneys before our said district court aforesaid, on the

day of

19, to render, etc.

clerk of our said district court, at

19-.

By

Clerk of said District Court.

Deputy.

Sec. 1163. Preliminary statement.

It is a rule of law that any permanent improvement, attached to real estate so as to become a part and parcel of it, is a fixture, and is a part of the real estate and becomes the property of the person who has title to the real estate to which it is attached. At common law it was the rule that in ejectment the plaintiff, on recovery, would not be liable to the party in possession for the permanent improvements placed on the real estate. In order to do justice to those who have gone into possession of real estate under color of title, and have made valuable and lasting improvements thereon, in good faith, the Legislature has enacted laws. giving the party in possession the right to recover the value of the improvements in case he is evicted by someone holding a paramount title to the real estate. These statutes are known and designated as the occupying claimant's laws.

Sec. 1164. In what cases the occupying claimant may not be evicted until improvements are paid for.

In all cases any occupying claimant being in quiet possession of any lands or tenements, for which such person can show a plain and connected title in law or equity, derived from the records of some public office, or being in quiet possession of, and holding the same by deed, devise, descent, contract, bond, or agreement from and under any person claiming title as aforesaid, derived from the records of some public office, or by deed, duly authenticated and recorded; or being in quiet possession of, and holding the same under sale on execution, or order of sale, against any person claiming title as aforesaid, derived from the records of some public office, or by deed, duly authenticated and recorded; or being in possession of and holding any land under any sale for taxes authorized by the laws of this State, or the laws of the State of Oklahoma, or any person or persons who have made a bona fide settlement and improvements which he, she or they still occupy upon any of the Indian lands lying in this State, or any lands held in trust for the benefit of any Indian tribe at the date of such settlement, or which may have heretofore been Indian lands, and which were vacant and unoccupied at the date of such settlement, and where the records of the county show no title or claim of any person or persons, to said lands, at the time of such settlement; or any person in quiet possession of any land claiming title thereto, and holding the same under a sale and conveyance made by executors, administrators or guardians, or by any other person or persons in pursuance of any order of court or decree in chancery where lands are or have been directed to be sold and the purchasers thereof have obtained title to and possession of the same without any fraud or collusion on his, her or their part, shall not be evicted or thrown out of possession by any person or persons who shall set up and prove an adverse and better title to said lands until said occupying claimant, his, her or their heirs, shall be paid the full value of all lasting and valuable im

provements made on such lands by such occupying claimant, or by the person or persons under whom he, she or they may hold the same previous to receiving actual notice by the commencement of suit on such adverse claim by which eviction may be effected.1

Sec. 1165. Occupant must have "color of title”—Definition of term.

The name of this subject indicates that only those persons who occupy real estate under the notion that they are the owners and have the title can claim for any permanent and lasting improvements placed thereon. The right to claim for improvements under what is known as the Occupying Claimant's Law, does not go to one who places the improvements on land with the certain knowledge that his interest in the land shall eventually be extinguished; as, where one has a short time lease on land, and makes valuable and lasting improvements, at the time knowing that his leasehold interest will soon terminate. The Supreme Court of our State has so held.2

The court, in the case just cited, held that further, who calls to his aid the terms of this statute must be one who claims the land upon which are lasting and valuable improvements by "color of title;" and the court, in defining what "color of title" is, adopts the language of the decisions in other States. It says that an "instrument by color of title, is one having a grantor and grantee, and containing a description of the lands intended to be conveyed, and apt words for their conveyance" gives color of title. The instrument in such cases usually purports to be a conveyance of title, and because it does not, for some reason have that effect, it passes only color, or the semblance, of title. It makes no difference whether the instrument fails to pass an absolute title because the grantor had none to convey, or

1 Snyder, 6,128; Wilson, 4,794; Kansas, 5,088 (1801), identical.

2 Woodruff v. Wallace, 3 Okla. 355, 41 Pac. 357.