This matter is now before this court upon petition for rehearing filed by the plaintiff. It is directed primarily at the law announced in paragraph 1 of the syllabus, and the reasoning of the opinion leading thereto. It alleges that this holding is contrary to holdings of this court, and cites as the leading case in support of this assertion, Carter v. Prairie Oil Gas Co., 58 Okla. 365, 160 P. 319, and other cases, making reference thereto. The contention is made that this is an action of purely equitable cognizance, and that the law rule as to the evidence should not be applied. In the original brief filed by the plaintiff (page 46) it is asserted that plaintiff's claim to said property is
"That March Coleman attained his majority on the 29th day of October, 1907; that March Coleman died December 7, 1909; that on said date. December 7, 1909, he was the owner and holder of the legal and equitable title to the land involved in this action; that March Coleman left surviving him no issue; that Dolly Stidham, his mother, and the plaintiff, Cora Adams, his wife, survived him; that the title to the aforesaid tract of land descended on his death to his wife, Cora Adams, and his mother. Dolly Stidham, in equal one-half moieties."
In the petition for rehearing (page 12) it is said: "It is true that the first one and one-half pages of the petition seek possession of property unlawfully withheld from the possession of plaintiff." Then the petition asserts that certain deeds were made in violation of the acts of Congress, which were void.
Directing our attention to the said case of Carter v. Prairie Oil Gas Co. et al., we find that the first sentence in the said opinion is to the effect that on January 4, 1914, in the district court of Creek county, Annie Carter sued the defendants to clear her title of a deed to 120 acres of land, her surplus allotment as a citizen of the Creek Nation, on the ground it was procured by fraud, and second, was executed in violation of section 19 of the Act of Congress approved April 26, 1906 (34 Stat. L. 144). This case involved fraud, relief against which is of equitable cognizance. The other cases cited in the petition for rehearing, when analyzed from the record and the briefs on file, are not persuasive on the question involved here.
While in the case of Williams v. Diesel, 65 Okla. 163,165 P. 187, reference is made to the Carter Case, supra, yet it does not recite any pleading as to fraud in that case. It was immaterial, as the evidence therein was undisputed.
Referring to the first above quotation from the original brief of the plaintiff filed in this court, as well as that part of the petition for rehearing above quoted, it is clear that plaintiff pleaded that she was the owner of the legal and equitable title by inheritance to the land, and that defendants unlawfully kept her out of possession, for which she prayed. This constitutes an action for the recovery of specific real property, and the mere fact that she coupled with this action an action to quiet title does not make this an action of purely equitable cognizance.
This direct question was before this court in the case of Mitchell v. Gafford, 73 Okla. 152, 175 P. 227. In the syllabus, the court said:
"The fact that the petition in the action for the recovery of real property prays that the title of the real estate sought to be recovered be quieted in the plaintiffs, does not make the action a nonjury case, but it remains an action properly triable by jury under the provisions of section 4993, R. L. 1910."
In the body of this opinion, the court states:
"The petition also prays that title to said tract of land be quieted in plaintiffs as against the defendants, and it is argued that this renders this action one in equity, and that the prayer for the possession of real estate is a mere incident for quieting of the title. * * * We think that the converse of this proposition is true; that the action is an action at law, to recover specific real property, and that the quieting of the title in plaintiffs is a mere incident, which would follow a recovery by plaintiffs in the action." *Page 63
In the case of Strawn v. Brady, by Justice Kennamer,84 Okla. 66, 202 P. 505, this court said:
"In an action in ejectment and to quiet title, wherein the plaintiff and the defendant assert title to the lands through a common source, and the decisive issue in the action is the age of the grantor of the plaintiff and the defendant, the issue was properly submitted to a jury upon the demand of the defendant for a jury trial." Gill v. Fixico, 77 Okla. 151,187 P. 474; Thompson v. Smith, 102 Okla. 150, 227 P. 77.
We think the rule that an action of this character, where the pleadings as interpreted by the briefs are as here, is so clearly an action primarily for the recovery of specific real property, or ejectment, that no well-reasoned case in which the question was presented to the court can be found to the contrary. It is not amiss to cite additional authorities on questions analogous to those here: Preston v. Tremble, 7 Cranch (11 U.S.) 354, 3 L. Ed. 369; Smyth v. New Orleans Canal Banking Co., 34 Fed. 825, 141 U.S. 656, 35 L. Ed. 891; Chamberlain v. Marshall. 8 Fed. 398; Polk v. Wendal, 9 Cranch, 99; U.S. v. Stone, 2 Wall. 535; Eiffert et al. v. Craps et al., 58 Fed. 470; Wilkinson v. Wilkinson (Ala.) 30 So. 578; Dalton v. Hamilton et al., 50 Cal. 422; Benton County v. Morgan (Mo.) 64 S.W. 119; Campbell v Campbell (Wis.) 15 N.W. 138; Childs et al. v. Cook et al., 68 Okla. 240, 174 P. 274; Word v. Nakdimen et al., 74 Okla. 229. 178 P. 257; Atkinson et al. v. Crowe Coal Co. (Kan.) 102 P. 50.
Petition for rehearing is denied.