I cannot concur in the majority opinion in this case and the law as expressed by syllabus No. 1, which is as follows: *Page 170
"Under our statutes, an action for the recovery of land based upon the cancellation of a deed procured by fraud, and for recovery of possession, may be brought in the same cause, but the deed must first be canceled, and when the deed is canceled judgment for possession of the property follows as a necessary incident. In such cases, the two-year statute of limitations is applicable."
Plaintiff in error, plaintiff below, filed her petition in the district court of Creek county, Okla., in which she alleged that she was a member of the Creek Tribe of Indians and as such there was allotted to her the lands in controversy.
Plaintiff's first cause of action states that she was the owner and prayed for the possession of the real estate described in her petition.
Plaintiff's second cause of action alleged that certain deeds were a cloud upon her title and asked that the same be canceled.
Plaintiff's third cause of action alleged that the defendants had taken oil and gas from said land and prayed for an accounting.
Under the Statutes of Oklahoma of 1893, which were adopted and became the general laws of the state of Oklahoma upon the advent of statehood, section 613 of chapter 66 provided that any person in possession could bring a suit to quiet title. Under this statute no one out of possession could quiet title. Under the procedure in Oklahoma prior to 1911 it was necessary first to bring a suit for possession. If plaintiff prevailed and secured possession, then he could bring an action to quiet title or remove clouds on his title. This was amended by chapter 10 of the 1911 Session Laws, which was approved January 25, 1911, and is now section 466, C. O. S. 1921, which reads as follows:
"An action may be brought by any person in possession, by himself or tenant, of real property against any person who claims an estate or any interest therein adverse to him for the purpose of determining such adverse estate or interest, and such action may be joined with an action to recover possession of such real property by any person not in possession."
The Legislature was not dealing with the statute of limitations when this amendment was made to permit litigants to quiet title in the same suit for possession. Under this section 466, C. O. S. 1921, no person is entitled to maintain an action to quiet title without first showing that he is entitled to possession.
The primary purpose of the case at bar was for the possession of real estate, and the law contemplates that if the plaintiff was entitled to possession and in the full enjoyment of that possession, she would be entitled to have all clouds removed from her title, and as an incident thereto entitled to an accounting of the rents and profits and minerals taken from said premises by the defendants.
What right would plaintiff have to ask that a deed be canceled or a cloud removed from her title without first showing, as has been held by this court in cases too numerous to mention, that her title was superior to the title or claim of defendants? Under our procedure and under the law in this state it would be a useless thing to ask that a cloud be removed from a title without first showing that she was entitled to possession and all the rights incident thereto.
Plaintiff cites the case of Warner v. Coleman, 107 Okla. 292,231 P. 1053, the second syllabus of which reads in part:
"A petition which alleges a state of facts which do not show that the plaintiff is the owner of the legal or equitable title and entitled to the immediate possession of the premises does not plead a statutory action for the recovery of specific real property. * * *"
I have not examined the record in this case, but assume that the above states the facts. This case is not applicable to the case at bar, for the reason plaintiff's petition pleads an allotment patent which vested title in her and asks for immediate possession of specific real property.
Section 183, C. O. S. 1921, reads as follows:
"Limitation of Real Actions. Actions for the recovery of real property, or for the determination of any adverse right or interest therein, can only be brought within the periods hereinafter prescribed, after the cause of action shall have accrued, and at no time thereafter: * * *"
Subdivision 4 of said section applies to the case at bar and reads as follows:
"An action for the recovery of real property not hereinbefore provided for, within 15 years."
The majority opinion relies on subdivision 3 of section 185 C. O. S. 1921. Section 185 is a part of chapter 3, article 2. Article 2 is headed "Limitations of Actions," and after giving the limitations of actions for recovery of real estate, section 185 is as follows:
"Limitations of Other Actions. Civil actions, other than for the recovery of real property, can only be brought within the *Page 171 following periods, after the cause of action shall have accrued, and not afterwards: * * *"
The third subdivision of section 185 is as follows:
"Within two years: An action for trespass upon real property; an action for taking, detaining or injuring personal property, including actions for the specific recovery of personal property; an action for injury to the rights of another, not arising on contract, and not hereinafter enumerated; an action for relief on the ground of fraud — the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud."
The Legislature in section 185 did not leave this section on limitations open for construction, but stated in no uncertain terms that this section should apply to civil actions other than for the recovery of real property. To apply the third subdivision of this section as a statute of limitations for the recovery of real property, in my opinion, is a plain violation of the express mandate of the statute. It will be seen that section 183 had provided all the limitations of actions for the recovery of real property and that section 185 is designated as limitations of other actions; civil actions other than for the recovery of real property. The primary purpose in this case was for the recovery of real estate, and should be governed solely as to the limitations of said action by section 183. Should plaintiff show that she was entitled to the real property involved in this action, then she would be entitled, if she was entitled to possession, to have a cloud removed from her title and an accounting, both being incidents to the right of possession and a peaceful enjoyment of the same.
Under the holding in the majority opinion and the rule laid down therein, it has the effect of striking down the 15-year statute of limitations provided in subdivision 4 of section 183.
In the case of Campbell v. Dick, 71 Okla. 186, 176 P. 520, in an able and exhaustive opinion in which the court spoke through Chief Justice Sharp, it is said in the 3rd paragraph of the syllabus:
"In an action by plaintiffs for the recovery of real property in the possession of defendant, plaintiffs asked for the cancellation of a deed thereto made by the ancestor and for other relief. Defendant interposed the 1, 2, 3 and 5 year statute of limitations in bar of plaintiffs' right of recovery. Held, that the primary purpose of the action was the recovery of the possession of the land; the other grounds of relief being but incidental thereto. Held, further, that the 15-year statute of limitations, as found in the fourth subdivision of section 4655, Rev. Laws 1910, fixes the period within which such action may be brought."
In the case of Franklin v. Ward, 70 Okla. 282, 174 P. 244, second paragraph of the syllabus reads as follows:
"Where the primary purpose of an action is the recovery of possession of real property, and other relief is sought incidental thereto, the fourth subdivision of section 4655, Rev. Laws 1910, fixes 15 years as the limitation in which said action may be brought, and subdivision 3 of section 4657, Rev. Laws 1910, fixing the limitation of an action for fraud at two years after the discovery of the same, does not apply, notwithstanding the incidental relief sought is that a deed obtained by fraud be declared a mortgage."
In the case of Etenburn v. Neary et al., 77 Okla. 69,186 P. 457, on page 73, the court re-affirmed the rule in Campbell v. Dick, as follows:
"* * * 'An action for the recovery of real property not hereinbefore provided for, within 15 years.'
"The foregoing provisions of the statute were considered by this court in the case of Campbell v. Dick et al.,71 Okla. 186, 172 P. 783, and were fully discussed in the opinion of the court by Sharp, C. J., wherein it was said:
"'Upon the legal issues of limitations, we have already noted that the primary purpose of the action was to recover possession of the land, the legal title to which purported to be in the defendant. While it is true that the plaintiffs also asked to have the deed of July 27, 1908, canceled, and the title thereto quieted in plaintiffs, that relief was incidental to the main action, which was to recover the lands. The mere fact that plaintiffs charged that the deed was fraudulently procured, and the grantor therein was incapacitated at the time to make a valid conveyance, none the less made the action one for the recovery of the possession of the premises. The applicable statute, therefore, is not section 4657. Rev. Laws 1910, relied upon by plaintiffs in error, but section 4655, which prescribes the limitations in actions for the recovery of real property, or for the determination of any adverse right or interest therein. Section 4657 by its terms includes several classes of actions "other than for the recovery of real property." Section 4656 provides for tolling the statute in actions for the recovery of real property, while section 4658 provides a different period of limitations for tolling the statute in actions other than for the recovery of real property except for a penalty or forfeiture. As the case at bar does not come within the first, second, or third subdivision of section *Page 172 4655, and not being an action for the forcible entry and forcible detention or forcible detention only of real property, it must fall within the fourth subdivision of the section, which provides that an action for the recovery of real property, not included within the first three subdivisions of the article, must be brought within 15 years after the cause of action shall have accrued. These views find support in Reihl v. Likowiski, 33 Kan. 515, 6 P. 886; and Deinschmutt v. Parent et al., 30 Kan. 548, 18 P. 712; also by the following decisions of other courts: Murphy v. Crowley, 140 Cal. 141,73 P. 820; Shepard v. Cummings' Heirs, 44 Tex. 502; Williams v. Allison, 33 Iowa, 278; Dunn v. Miller, 96 Mo. 338, 9 S.W. 640; Names v. Names, 48 Neb. 701, 67 N.W. 751.'"
For the reasons recited herein, I most respectfully dissent from the opinion of the majority.
RILEY, J., concurs.