CUTRIGHT v. RICHEY

CUTRIGHT v. RICHEY
1955 OK 197
285 P.2d 864
Case Number: 36267
Decided: 07/05/1955
Supreme Court of Oklahoma

RUHL D. CUTRIGHT AND MARTHA CUTRIGHT, PLAINTIFFS IN ERROR,

v.

W.S. RICHEY ET AL., DEFENDANTS IN ERROR.

Syllabus

¶0 1. Sections

2. In such a situation an action for breach of warranty by a grantee against his grantor must be brought under

[285 P.2d 864]

Appeal from the District Court of Washita County; Weldon Ferris, Judge.

Action by a grantee against his grantor for damages for breach of warranty; special appearance of grantor and plea to the jurisdiction sustained. Grantee appeals. Affirmed.

Ralph D. Smith, Cordell, for plaintiffs in error.

Jones & Wesner, Cordell, for defendants in error.

[285 P.2d 865] ARNOLD, J.

¶1 This is an appeal from an order of the District Court of Washita County sustaining a special appearance and plea to the jurisdiction of the court to hear and determine a petition for damages for breach of warranty.

¶2 In 1938 one Richey and his wife, owners of a certain 160-acre tract of land, sold an undivided one-half interest in the minerals; thereafter, in 1941, a subsequent grantee of a portion of said one-half of the minerals so conveyed filed of record a quit claim deed conveying a 30-acre mineral interest to the "record title holder"; thereafter, in 1946, the Richeys conveyed to Cutright and his wife by warranty deed said 160-acre tract, which deed recited that an undivided one-fourth interest in the minerals was retained by grantors, in addition to the undivided one-half interest which had theretofore been conveyed; thereafter, in 1949, the Richeys commenced cause No. 7428 in the District Court of Washita County seeking to reform the warranty deed to the Cutrights so as to convey only the surface and an undivided one-fourth of the minerals and to quiet their title to the 30-acre mineral interest above mentioned. This cause was tried and judgment entered awarding the contested 30-acre mineral interest to the various mineral interest owners at the time of the recording of the quit claim deed thereto in the proportions that their interest bore to the whole interest. Appeal was taken to this court, being cause No. 35287, and on April 21, 1953, this court rendered its opinion reversing the trial court and determining that the entire 30-acre mineral interest passed under the warranty deed from Richey to Cutright. Mandate was issued remanding the cause to the trial court with instructions to take such further action as might be in accord with right and justice and said opinion. Thereupon the Cutrights filed a motion in the trial court to spread the mandate of record and for judgment for costs on appeal, casemade, briefs, and attorney's fee; at the same time the Cutrights filed in said cause a petition alleging that the adverse claim of the Richeys to the controversial 30-acre mineral interest constituted a breach of their warranty and asking for damages for such breach, consisting of the costs of appeal, casemade, briefs, and attorney's fee of $650. No summons was issued on the petition. When the matter came on for hearing on motion to spread mandate of record, the Cutrights introduced evidence as to the amounts expended by them on casemade, costs, printing briefs, and that a reasonable attorney's fee in the matter would be $650. At this point the attorney for the Richeys stated that if the hearing was being had on the petition for breach of warranty, he wanted to appear specially to object to the jurisdiction of the court for the reason that same was a separate cause of action from that in the original case and no summons had been issued; the court stated that if the Cutrights were seeking to tax additional costs, other than those taxed by the Supreme Court, the motion would be sustained, and entered judgment accordingly.

¶3 The Cutrights bring this appeal from that judgment, contending that the court erred in ruling that it was without jurisdiction to hear the petition for breach of warranty because under

¶4 In McConnell v. Goucher, 188 Okl. 293,

¶5 The case of Harmon v. Nofire, supra, cited by plaintiffs in error, is not in point because there the suit was brought by a third party against the grantee, and the grantee gave notice to his warrantor to come in and defend the warranty.

¶6 If the Cutrights have a cause of action for breach of warranty against the Richeys, which we do not here decide, they have it under

¶7 Affirmed.

¶8 JOHNSON, C.J., WILLIAMS, V.C.J., and CORN, HALLEY, BLACKBIRD and JACKSON, JJ., concur.