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1913 OK 546
135 P. 368
38 Okla. 763
Case Number: 1210
Decided: 09/22/1913
Supreme Court of Oklahoma



¶0 LIMITATION OF ACTIONS--Recovery of Land--Void Guardian Sale. Where the grantee went into possession of real estate immediately after the purchase thereof by him at a void guardian's sale, and such grantee and those claiming under him remain continuously in possession thereof thereafter, and where the action to recover said real estate is not brought by the minor or his guardian within five years after the recording of the deed, nor by the minor within two years after his legal disability is removed, an action by such minor for the recovery of said property is barred by sections 5547-5549, Comp. Laws 1909 (Rev. Laws 1910, secs. 4654-4656).

Burford & Burford, for plaintiff in error.
Devereux & Hildreth, for defendants in error.


¶1 Plaintiff's contention for reversal extends only to that portion of the judgment that affects Hannah Middleton, and presents the following questions of law only: Does the statute of limitation of this state run against a void guardian's deed? The case has been presented to this court upon the theory that the deed of the guardian was void, because at the time of the appointment of the guardian and the order of the guardian's sale the wards were not residents of the county of the court making the order. We shall decide the case upon the theory upon which it has been presented by plaintiff, and shall assume that the order of sale by the probate court was void, for such reason; but we desire to be understood that in making such assumption, we do not here decide that an order of sale would be void for such reason, or that its validity for such reason could be questioned in this character of proceeding, but leave the question open for the future disposition of the court, when they are properly presented for consideration. The statute of limitation governing this case may be found in the following Sections of Comp. Laws 1909 (Rev. Laws 1910, secs. 4654-4656):

"Sec. 5547. Civil actions can only be commenced within the periods prescribed in this article, after the cause of action shall have accrued, but where, in special cases, a different limitation is prescribed by statute, the action shall be governed by such limitation.

"Sec. 5548, Subd. 2. An action for the recovery of real property sold by executors, administrators or guardians, upon an order or judgment of a court directing such sale, brought by the heirs or devisees of the deceased person; or the ward or his guardian, or any person claiming under any or either of them, by the title acquired after the date of the judgment or order, within five years after the date of the recording of the deed made in pursuance of the sale.

"Sec. 5549. Any Person entitled to bring an action for the recovery of real property, who may be under any legal disability when the cause of action accrues, may bring his action within two years after the disability is removed."

¶2 The disability of defendant Hannah Middleton had been removed for more than two years prior to the institution of her action; and, if a guardian's deed made in pursuance of a void judgment of a court ordering a sale is sufficient to bring into operation the foregoing statute of limitation, plaintiff's defense as to her is established, and the trial court, to that extent, committed error. Similar statutes are to be found in Kansas and California, in each of which jurisdictions it has been held that a void sale by an administrator or guardian is sufficient to set in operation the statute. O'Keefe et al. v. Behrens et al., 73 Kan. 469, 85 P. 555, 8 L.R.A. (N.S.) 354, 9 Ann. Cas. 867; Stewart et al. v. Rea et al., 74 Kan. 868, 87 P. 1150; Mowry v. Howard et al., 65 Kan. 862, 70 P. 863; Harlan et al. v. Peck et al., 33 Cal. 515, 91 Am. Dec. 653; Ganahl v. Soher, 68 Cal. 95, 8 P. 650; Reed v. Ring, 93 Cal. 96, 28 P. 851. There is a conflict among the authorities upon this question most of which may be found collected in the note to O'Keefe v. Behrens et al., supra, 8 L.R.A. (N.S.) 354. Among the numerous cases supporting this doctrine are the following: Morgan et al. v. Hazlehurst Lodge et al., 53 Miss. 665; McMichael et al. v. Craig et at., 105 Ala. 382, 16 So. 883; Griffin v. Dunn, 79 Ark. 408, 96 S.W. 190; Brown v. Maher et al., 68 Ind. 14; White et al. v. Clawson et al., 79 Ind. 188; Armstrong et al. v. Hufty, 156 Ind. 606, 55 N.E. 443, 60 N.E. 1080; Barton et al. v. Kimmerley, 165 Ind. 609, 76 N.E. 250, 112 Am. St. Rep. 252; Kammerer v. Morlock, 125 Mich. 320, 84 N.W. 319; Toll v. Wright, 37 Mich. 93; Miller v. Sullivan, 4 Dill. 340, F. Cas. No. 9,592. The reasoning upon which this doctrine is sustained is stated in Harlan v. Peck, supra, in the following language:

"There is nothing in the policy or language of the statute which excludes void sales from its operation. The policy of the statute is to quiet titles to real estate sold by order of the probate courts; and, in view of that policy merely, there can be no distinction between sales which may be termed void for the want of jurisdiction and those which are voidable only. Nor is there anything in the language of the statute which creates such a distinction. * * * [If the statute applies only to valid sales], the defendant in every case would be compelled to allege and prove a valid sale before he could invoke the protection of the statute; or, in other words, he must show that he stands in no need of protection in order to obtain protection. * * * We think the statute applies to all sales, void as well as voidable.",

¶3 Similar reasoning is employed by Judge Cooley to sustain the same conclusion in Toll v. Weight, supra. The text-writers are not agreed as to where the weight of authority lies. The author of the note in O'Keefe et al. v. Behrens et al., supra, 8 L.R.A. (N.S.) 354, makes the following statement:

"There is a conflict of authority upon the question whether a purchaser of real property at a void judicial sale, where he enters into and holds possession thereof for the period of time prescribed by the statute of limitations, will be protected thereby. The weight of authority, however, is in accord with O'Keefe v. Behrens, holding that a purchaser in possession for the statutory period will be protected, even though the proceedings leading up to the sale, or the sale itself, is void."

¶4 The examination of the authorities we have been able to make leads us to the belief that the foregoing statement is correct. But, if we are mistaken in this view, we are impressed that this doctrine is supported by the sounder reason. For this reason, we are persuaded to adopt it and supply it in this case. There is also an allegation of fraud in defendants' cross-petition, but this issue is not supported by any evidence. The judgment of the trial court, in so far as it sustains the cross-petition of defendant Hannah Middleton, is reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.

¶5 All the Justices concur.

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