The court has given careful and repeated consideration to this cause and to several difficult questions therein presented for determination. A majority of the court have arrived at certain determinative conclusions with which I am compelled to disagree, and, hoping that a brief resume of my views may be of service, I shall briefly outline my views.
I agree that the original deed from O.T. Bassett to the railroad company, dated April 16, 1891, conveyed to said railroad company a determinable fee upon condition subsequent, and that the character of the estate conveyed and of the interest remaining in the grantors is determinable by the law as it existed at that time. At that time section 6651, chapter 86, Stats. of 1890, was in force as recited in the majority opinion. However, the Legislature thereafter adopted the Code of 1893, and said statutory provision was omitted from said Code and has not been a part of our statutory provisions since that time. We must look, therefore, to the statutory provisions in existence at the time of the attempted *Page 198 conveyances herein to determine the right of those who retained this possibility of reverter to convey the same.
On April 16, 1898, C.R. Morehead, as guardian of Charles N. Bassett, a minor, executed a guardian's deed to L.F. Kramer pursuant to an order of sale made on March 21, 1898, by the probate court of Oklahoma county, pursuant to an order of confirmation by said court made on April 16, 1898, said deed being recorded on April 10, 1901, and same purporting to convey "all the right, title, interest and estate of the said Charles N. Bassett, Minor, at the time, in and to all the certain lots. . . ." On February 10, 1905, and after said minor had become of legal age, he executed a quitclaim deed purporting to convey:
". . . all his right, title, interest, estate in claim and demand both at law and in equity of, in and to all
"Lot number one (1) and Lot number two (2) in block number thirty-six (36) in Oklahoma City according to the recorded plat thereof. Except forty feet (40) feet off of the north end of said lots heretofore conveyed to the C.O. and G. R. R. Company, together with all and singular hereditaments and appurtenances thereunto belonging."
It is my view that whether said guardian's deed be valid, voidable, or wholly void, the statute of limitations prevents the recovery of said property, or any interest or right therein, by the said Charles N. Bassett, in that his action attempting to attack said guardian's deed was not commenced until the year 1938. Tit. 12, sec. 93, subdivision 2, O.S.A. (sec. 99, O. S. 1931); Tit. 58, sec. 836, O.S.A. (sec. 1444, O. S. 1931); Dodson v. Middleton, 38 Okla. 763, 135 P. 368; Sandlin v. Barker, 95 Okla. 113, 218 P. 519; Walker v. Hatcher,109 Okla. 283, 231 P. 88; Stolfa v. Gaines, 140 Okla. 292,283 P. 563; Givens v. Jones, 158 Okla. 124, 12 P.2d 892, and many other cases to like effect.
Moreover, under the state of the pleadings in this case and the contentions of the parties, I am of the view that the plaintiff was not under the necessity of specifically pleading the statute of limitations. Plaintiff was asserting a paramount right by reason of claim of a paramount title against the city of Oklahoma City. Intervener, C.N. Bassett, was claiming a like right against the city of Oklahoma City. The rights of the three parties were presented to the court for adjudication. I am of the view that this constitutes an exception to the general rule regarding the necessity of pleading the statute of limitations. 19 C. J., p. 1146, § 172; Wiggins v. Powell,96 Kan. 478, 152 P. 765.
But if I am in error as to the statute of limitation having barred Bassett herein, then I assert that he is barred by reason of the quitclaim deed above mentioned. Said deed conveyed all of his right, title, and interest in said lots, including the possibility of reverter theretofore retained by his ancestor, unless he excluded said possibility of reverter from the terms of said conveyance "by clear, unequivocal and unmistakable language." This he did not do. Cuneo v. Champlin Refining Co., 178 Okla. 198, 62 P.2d 82; Jennings v. Amerada Petroleum Corp., 179 Okla. 561, 66 P.2d 1069; Shell Petroleum Corp. v. Hollow (C. C. A.) 70 F.2d 811; Shell Petroleum Corp. v. Ward (C. C. A. 5th) 110 F.2d 778; Kansas City Southern Ry. Co. v. Marietta Oil Corp. (C. C. A. 5th)102 F.2d 603; Barker v. Lashbrook, 128 Kan. 595, 279 P. 12.
It is intimated, however, in the majority opinion that by reason of said quoted statute (sec. 6651, Code of 1890), and by reason of restrictions at common law, the interest so reserved by the original deed was incapable of alienation. This technical doctrine of the common law, growing out of the tenure and conveyance of real property under the old feudal law, is historically interesting. For a very full and complete collection of the cases and a discussion of the common law, and of the various *Page 199 holdings of the various courts and of the inconsistencies therein, brought up to date, see the annotations contained in 109 A. L. R. 1148, 117 A. L. R. 563, and 135 A. L. R. 576.
Section 1790, O. S. 1931 (21 O. S. 1941 § 102), provides "The term 'real property' includes every estate, interest and right in lands, tenements and hereditaments." We call attention to sections 11753, 11754, 11755, and 11765, O. S. 1931 (60 O. S. 1941 §§ 28, 29, 30, and 40). These statutes, in my judgment, were intended to abrogate the technicalities of the common law relating to conveyances of an interest of this kind. See Knight v. Kimble, 99 Okla. 48, 225 P. 909; Miller v. Miller,91 Kan. 1, 136 P. 953; and Maynard v. Hustead, 185 Okla. 20,90 P.2d 30.
I am, therefore, of the view that there was no legal impediment to the conveyance of said interest either by the guardian or by C.N. Bassett after arriving at majority, and that he, in fact, conveyed whatever interest he had in said property.
I deem the fifth syllabus wholly irrelevant to a determination of this case for the simple fact is that under the record in this case the city did not acquire said property by eminent domain, but whatever interest it acquired, it took by voluntary conveyance from the railroad company.
It follows from the above that I am of the view that the Local Federal Savings Loan Association of Oklahoma City is entitled to prevail herein, and that neither C.N. Bassett nor the city of Oklahoma City has any right superior to said association.
For these reasons, I respectfully dissent.
DAVISON, J., concurs in this dissent.