Error from Craig County Court; Theo. D. him, he has been put to other expense and B. Frear, Judge.

Action by John McKoon against John Couch and Ed Couch. Judgment for plaintiff, and defendants bring error. Reversed and remanded.

W. H. Kornegay, for plaintiffs in error. Preston S. Davis, for defendant in error.

HAYES, J. Defendant in error, hereinafter called plaintiff, originally brought this action against plaintiffs in error, hereinafter called defendants, to recover in the county court of Craig county damages for deceit in the leasing of certain lands to plaintiff by defendants.

Plaintiff in his petition in the court below alleged that on the 6th day of August, 1906, he rented a certain farm and improvements from the defendant John Couch for the year 1907; that defendant Ed Couch claimed to have a lease and valid contract with one Sol Ketchum for the use of said farm and improvements for the years 1905, 1906, and 1907; and that, prior to making the rental contract with the defendant John Couch, both defendants represented to plaintiff that they had a valid contract for said premises for said years, and that they would give to plaintiff the quiet and peaceable possession of same for the year 1907; that the defendant Ed Couch told plaintiff that he had seen | Sol Ketchum concerning the occupation of the premises for the year 1907; and that said Ketchum had agreed that defendant Ed Couch could use and occupy the premises under his contract for that year. Plaintiff alleges that relying upon these representations and each of them, and believing them to be true, and that defendants had a right to use and occupy the premises - during the year 1907, and the right to rent same to him, he executed a rental contract with them and paid as a consideration therefor the sum of $100 in cash and agreed to build a smokehouse upon the leased premises at a cost of $15. He alleges that he had built the smokehouse and had begun to move his property thereon, preparatory to taking full possession thereof, when he received a notice from Sol Ketchum to quit and deliver over to him possession of the premises; and that he thereupon made investigation and ascertained that the land in question belonged to a minor child of said Ketchum; and that no lease had ever been executed by the guardian of said child to defendants or either of them; and that Ketchum was without any right or authority to lease said land to the defendants; and that, by reason of such facts, plaintiff was compelled to and did rent from the guardian of said child the land for the year 1907, and paid the rent thereon to the guardian. He alleges that in addition to the sum of $115 paid by him as a consideration for the rental contract, on account of the false and fraudulent representations so made to him by defendants and relied upon by

loss of time to his damage in the sum of $100, and prayed judgment for the sum of $215.

After answer and trial to a jury, verdict was returned and judgment rendered against defendants for the sum of $115. To reverse that judgment, this appeal is prosecuted.

Defendants demurred separately and jointly to plaintiff's petition. One of the grounds of their demurrers was that the court was without jurisdiction of the subject-matter of the action, and, since our decision upon this question renders a decision upon the other questions presented by this appeal unnecessary, we shall consider only the question of the trial court's jurisdiction.

By section 12, art. 7, of the Constitution, it is provided: "The county court shall not have jurisdiction in any action for malicious prosecution, or in any action for divorce or alimony, or in any action against officers for misconduct in office, or in actions for slander or libel, or in actions for the specific performance of contracts for the sale of real estate, or in any matter wherein the title or boundaries of land may be in dispute or called in question; nor to order or decree the partition or sale of real estate not arising under its probate jurisdiction."

As was said by this court in Marshall v. Burden, 25 Okl. 554, 106 Pac. 846, the foregoing provision of the Constitution is comprehensive in that it provides that the county court shall not have jurisdiction of cases wherein the title to land not only may be in dispute, but also may be "called in question." We think it is plain upon the face of plaintiff's petition that to try the cause he attempts to allege will bring into question title to the land leased. In order for him to establish the false and fraudulent representations alleged by him to have been made by the defendants, it will be necessary for him to prove that title to the land in controversy was not in Sol Ketchum at the time he leased the same to defendants, which, indeed, plaintiff alleges to be the case; and that the title was in another person, to wit, a minor child of said Ketchum. Plaintiff sought to have the county court determine that his lessors, the defendants, and those under whom they held, had no right or title whatever in the land, and their representations to him that they had the right of possession for the year 1907 were therefore false and fraudulently made. In order to determine this question, title to the land must necessarily be drawn in question (Brooks v. Delrymple, 1 Mich. 145), and the county court was therefore without jurisdiction.

In Loeb v. Loeb, 24 Okl. 384, 103 Pac. 570, it was held that in an action brought by a grantee solely for the purpose of recovering money paid for taxes against which his grantor had covenanted in his deed did not involve the title to the land or draw the same into question, and that a county court therefore

SEVY V. STEWART et al.

(31 Okl. 589)

(Supreme Court of Oklahoma. March 12, 1912.)

(Syllabus by the Court.) LANDLORD AND TENANT (§ 53*)—Transfer

OF LEASED PROPERTY.

Tenants of a grantor, by implication, as a general rule become the tenants of his grantee. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 129-131, 134, 135; Dec. Dig. § 53.*] 2. COURTS (§ 163*)-COUNTY COURT-JURIS

had jurisdiction of such an action. In reach-
ing this conclusion, the court followed princi-
pally cases from the Supreme Court of Ne-
braska, but that court has held, under a stat-
ute denying jurisdiction to a justice of the
peace of actions in which the title to real es-1.
tate is sought to be recovered or may be
drawn in question, that a justice of the peace
has no jurisdiction of an action to recover
damages for breach of a covenant for quiet
enjoyment in a deed conveying real estate,
where such breach consists of an eviction by
one having a paramount title. Holmes v.
Seaman et al., 72 Neb. 300, 100 N. W. 417,
101 N. W. 1030, approved in Powers v. Bo-
huslav, 84 Neb. 179, 120 N. W. 942. In those
cases, as in the case at bar, plaintiff's right
to recover involved the question whether the
paramount title to the land was in another
person than defendant's grantees.

It is not necessary to oust the court of jurisdiction that the court will be required under the issues to render judgment decreeing the title to be in one or other of the parties.

In Marshall v. Burden, supra, plaintiff brought his action in a justice court to recover for the use and occupation of certain

DICTION-TITLE TO REALTY.

H. leased a certain theatre building in T. to be occupied by T., beginning with May 1, 1908. S., prior to August 1, 1908, entered as a subtenant under T. T. vacated prior to August 1, 1908. S. continued to occupy two rooms in said building during the months of On August, September, and October, 1908. August 3, 1908, H. sold and conveyed said theatre building to E. J. S., who brought suit against S. to recover the rents on said two rooms for said months of August, September, and October. S. answered, denying plaintiff's ownership. A trial was had and evidence introduced, none of which tended to prove a want of title or ownership in said plaintiff. Held, that the county court was not ousted of ju

risdiction.

[Ed. Note. For other cases, see Courts, Cent. Dig. §§ 410-411; Dec. Dig. § 163.*]

Error from Tulsa County Court; N. J. Gubser, Judge.

Action by Ella J. Sevy against George A. Stewart and another. From an order set

ting aside judgment against defendants and dismissing the cause, plaintiff brings error. Reversed and remanded, with directions to reinstate the judgment.

Chas. N. Simon, for plaintiff in error. Philip Kates, for defendants in error.

land. Defendant in his answer admitted owing somebody for the use of the land, but alleged that a third person claimed title to the land and the right to payment for its use and occupation. Said third person filed his interplea in the action, defendant paid the money into court, and the trial was between plaintiff and the interpleader upon an agreed statement of facts to determine who held the paramount title to the land defendant occupied. The right of the interpleader by his interplea to raise a question of title, thereby ousting the court of jurisdiction, was not WILLIAMS, J. The plaintiff in error, as questioned in that proceeding, for the trial plaintiff, sued the defendants in error, was upon the issues presented by the agreed George A. Stewart and. Charles E. Stewart, statement of facts. It was held by this court as defendants, in a justice of the peace court that, since the agreed statement of facts call-in Tulsa county, alleging, in substance, that ed into question title to the land, a justice she was, during the months of August, Sepcourt was without jurisdiction. So, in the tember, and October of 1908, the owner and case at bar, it is evident upon the face of in the possession of the Palm Theatre buildthe petition that the trial court, in order to ing, now called the Bijou Theatre, located in determine whether there had been any false the city of Tulsa; that said defendants used representations by defendants as to their and occupied two rooms in said building right and title to the land in controversy, during said months, being allowed to remain must determine whether the same at that and use and occupy the same by her, and time belonged to a minor, by whose guardian that the use and occupation thereof by the no lease had ever been executed or convey said defendants during said months was by ance made to any one; that Sol Ketchum and with her knowledge, sufferance, and conhad no right or title, and therefore conveyed sent, and of the reasonable value of $10 per none to defendant by his lease. The demur-month each; that the said defendants owe rer to the petition should have been sustain- the said plaintiff the sum of $60 for such use ed. Hammer v. Garret, 15 Idaho, 657, 99 and occupation, which is due and unpaid. The defendants answered by general deniThe judgment of the trial court is accord-al. On appeal from the justice court to the ingly reversed and the cause remanded, with county court, trial de novo was had on said direction to dismiss. issues which resulted in a judgment in favor of the plaintiff.

Pac. 124.

TURNER, C. J., and WILLIAMS, KANE, and DUNN, JJ., concur.

[2] Afterwards the defendants moved the court to set aside said judgment and dis

miss said cause for want of jurisdiction on | up a want of title to the land, is not, of itthe ground that the county court has not jurisdiction of any action in any matter wherein the title or boundaries of land may be in dispute or called in question. Section 12, art. 7, Constitution.

In Couch et al. v. McKoon, 122 Pac. 544, decided at this term, it was held in an action in the county court against certain persons for falsely representing themselves to have the right of possession and use of a tract of land for a given year, by which representation they induced plaintiff to lease the land from them for said year and to pay a valuable consideration therefor, the plaintiff having alleged in his petition that the title to said land was in another person under whom defendants claimed, and no valid lease had been made by the owner to defendants, the petition on its face shows that the title to the land is drawn in question, and that by reason of section 12, art. 7, of the Constitution, the county court was ousted of jurisdiction.

self, sufficient to oust the jurisdiction of the court without evidence on the trial tending to bring the title into question." The petition in this cause stated a cause of action of which the county court had jurisdiction. The general denial put in issue not only the alleged ownership of the plaintiff of the land, but also the allegations that defendants occupied the premises with the assent of the plaintiff.

The evidence tended to prove that the defendants used and occupied two rooms in said theatre during the months as alleged and of the value as alleged; that the plaintiff became the owner of said property on the 3d day of August, 1908; that from May 1, 1908, until some time in July of the same year, O. E. Tansey occupied the said theatre under a lease from C. H. Hatcher, Jr., entered into on February 18, 1908, but that he vacated said premises some time in July of that year; that the defendants in this case went into the possession of said premises as subtenants under said Tansey; that on August 3, 1908, the said Hatcher conveyed and sold the said theatre to the plaintiff. The evidence further shows that on August 6, 1908, the said Hatcher entered into a lease contract with certain parties for other rooms

In Marshall v. Burden, 25 Okl. 554, 106 Pac. 846, it was held that, where it was apparent from the evidence or from an agreed statement of facts made in an action pending in the county court that the title of land was in dispute or called in question, the court should refuse to take further cog-in said building, but that, while said connizance of the case, and, by reason of the provisions of section 12, art. 7, Const., dismiss the same for want of jurisdiction.

In Loeb v. Loeb et al., 24 Okl. 384, 103 Pac. 570, it was held that an action brought by a grantee solely for the purpose of recovering money paid for taxes against which his grantor had covenanted in his deed did not involve the title of the land to draw the same in question, and that the county court therefore had jurisdiction of such an action. Section 4075, Comp. Laws 1909 (Sess. Laws 1901, p. 141), provides: "Any person in the possession of real property, with the assent of the owner, is presumed to be a tenant at will, unless the contrary is shown, except as herein otherwise provided."

In Thruston et al. v. Hinds, 8 Ark. 118, it was held that justices of the peace possess no jurisdiction in actions for use and occupation where the title to the land comes in controversy, but that, where there is no controversy as to title, it is not essential to the jurisdiction of a justice of the peace that there be an express agreement or contract for rent.

Whenever the relation of landlord and tenant exists as a rule, the tenant cannot put the title in issue in an action by the landlord against the tenant for the recovery of rent. Nolen v. Royston, 36 Ark. 561; Matthews v. Morris, 31 Ark. 222; Byrd v. Chase, 10 Ark. 603.

In Bramble v. Beidler, 38 Ark. 200, it was held: "An answer in a justice court to an action for the purchase price of land, setting

tract was made in his name individually, it was as agent for the plaintiff. There is no substantial evidence in this record showing any conflict in the title.

[1] The tenants of a certain grantor, as a matter of law, by implication, as a general rule. become the tenants of his grantee. Gibbons v. Dillingham, 10 Ark. 9, 50 Am. Dec. 233. The court erred in holding that it did not have jurisdiction of this action.

The order of the lower court in setting aside the judgment against the defendants and dismissing the cause is hereby reversed and the cause remanded, with directions to reinstate said judgment. All the Justices

(Supreme Court of Oklahoma. Feb. 6, 1912. Rehearing Denied April 2, 1912.)

(Syllabus by the Court.) 1. APPEAL AND ERROR (§ 639*)-ABSTRACTS -COUNTER ABSTRACTS-AFFIRMANCE.

Rule 25 (20 Okl. xii, 95 Pac. viii) of this court provides that: "Where a party complains on account of the admission or rejection of testimony, he shall set out in his brief the full substance of the testimony to the admission or rejection of which he objects, stating specifically his objections thereto. * Abstracts shall be indexed and shall refer to the pages of the record," etc. And where said rule is not complied with by plaintiff in error, but the defendant in error makes a counter abstract which is not replied to by plaintiff in error, and under such abstract as made by defendant in error, no error is shown,

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 122 P.-35

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes