Williams. J.
(after stating the facts as above). The only question essential for the determination of this case is whether or not the court erred in finding that the question of title to real
estate was involved in said case, and discharging the jury and dismissing the same.
Under the laws of the territory of Oklahoma, justices of the peace have original jurisdiction to try actions for forcible entry' and detainer or detainer only, of real property. Section 4929, Wilson’s Rev.
&
Ann. St. 1903; chapter 67, art. 1, § 2, Code Civ. Proc.
McDonald v. Stiles,
7 Okla. 328, 54 Pac. 487. The title to real estate, where the right to possession of the same is in controversy, in a forcible detainer action, may 'not be put in issue so as to adjudicate such title, for in such action the title, as such, cannot be determined; it being merely intended that only the right to possession should be tried in such an action.
Oklahoma City v. Hill, 4
Okla. 531, 46 Pac. 568;
Chisholm v. Weise,
5 Okla. 217, 47 Pac. 1086;
Brown v. Hartshorne,
12 Okla. 121, 69 Pac. 1049;
McQuiston v. Walton,
12 Okla. 130, 69 Pac. 1048;
Conaway v. Core,
27 Kan. 122;
Buettinger v. Hurley,
34 Kan. 585, 9 Pac. 197;
Ow v. Wickham,
38 Kan. 225, 16 Pac. 335;
McClain v. Jones,
60 Kan. 639, 57 Pac. 500.
For the reason that title may not be adjudicated and finally-determined in a forcible detainer action, it is provided that neither before a justice of the peace nor in the district court, in, such action, shall such judgement be a bar to any other action brought by either party. See section 5088, Wilson’s Rev. & Ann. St. 1903; chapter 67, art. 13, § 161, Code Civ. Proc. When a party seeks to have title adjudicated in such an action, or to oust the court of jurisdiction by such an averment, such allegation should be stricken out upon motion. Section 5934, Wilson’s Rev. & Ann. St. 1903 (chapter 67, art. 1, § 7, Code Civ. Proc.), providing that:
“If in any action commenced before a justice it appears to the satisfaction of the justice that the title or-boundaries of land is in dispute in such action, said action shall be stayed before [said justice, and said justice shall, within ten days thereafter, certify ' said case, and transmit all papers and process therein to the clerk of the district court of his county', and said case
shall be docketed and thereafter proceeded within the district court as if originally commenced therein ; * * * ”—
in this jurisdiction does not apply to forcible detainer actions.
McDonald v. Stiles,
7 Okla. 328, 54 Pac. 487;
Armour v. Howe,
62 Kan. 588, 64 Pac. 42.
The case of
Torrey v. Berke,
11 S. D. 157, 76 N. W. 302, in construing section 9, art. 2, c. 1, p. 1075, Rev. Codes S. D. 1903, which provides:
“The parties to an action in a justice’s court cannot introduce evidence upon any matter -wherein the title to, or boundary of, real property in anywise comes in question; and if it appear from the answer of .the defendant, verified by his oath, that the determination of the action will necessarily involve the question of title to, or boundary of, real property, in anywise, the justice must suspend all further proceedings in the action, and certify the pleadings, and if any of the pleadings are oral, a transcript of the same from his docket, to the clerk of the circuit court of the county or subdivision,” etc.— appears to be in conflict with the rule announced by the Supreme Court of Kansas and Oklahoma Territory. But by reference to section 47, art. 8, c. 1, p. 1081, it will be found that, as to forcible entry and detainer actions, it is provided that:
“The complaint must be in writing, and verified by the plaintiff, his agent, or attprney, and the proceedings may be bad before any justice of the peace of the county where the premises are situated, and shall be governed by the same rules as other cases before justices of the peace, except as herein modified: Provided, that when the title to, or boundary of, the real property, in anywise comes in question, the case shall-be certified to the circuit court as in this chapter provided.”
No such provision was contained in the statutes of Kansas or Oklahoma Territory.
For the purpose of this case, under the tender of evidence on the part of the plaintiff in error, it will be assumed that he had the legal title in himself, and that 'the Caddo County Town-site Company, through whom he deraigned title, had the capacity both to acquire and convey to him the property in question.
The question further arises as to whether or not the defend
ant in error occupied said land with such color of title as would defeat this action. The executory contract relied upon by the defendant in error was neither made in the name of the Caddo County Townsite Company, nor was there any proof offered to show that the alleged agents were authorized to make such a contract. Hence it is not essential, under the facts, to determine as to whether or not a contract made in the name of the agent of the owner of real estate, by virtue of parol authority, could bind such owner so as to vest an equitable title in the vendee. There is' no evidence that the townsite company ever received the $50, or any part of it, that was paid to Hungate and Judge, and no question of estoppel therefore could arise; nor do the facts in this record bring the ease within the rule in the case of
Smith v. Kirchner, 7
Okla. 169, 54 Pae. 439, wherein it was held that where the defendant- was in possession of a tract of land under contract to' convey title, same constituting a contract of sale, the right of possession of the defendant rested under such equity, remaining so long as the contract existed, and could not be terminated and converted into a tenancy without the consent of all parties thereto, and the possession could not be construed to be unlawful until the contract was finally determined, which could not be done in an action of forcible entry and detainer. The rule in that case appears to have been followed, also, in the cases of
Dysart et al. v. Enslow,
7 Okla. 386, 54 Pac. 550;
Alderman v. Boeken, 25
Kan. 660 (2d Ann. Ed. 461), and
Kellogg
v.
Lewis,
28 Kan. 535. The ease of
Conaway v. Gore et al., 27
Kan. 122, also appears to harmonize, with the rule announced by the foregoing eases. The defendants in that case proved their equitable title as against the legal title, and possession by virtue of the equitable title from plaintiff defeated the claim of such plaintiff in forcible detainer. The only difference is that, under the rule in the foregoing cases, it appears that, when an occupier of lands and tenements has color of title from the plaintiff or his grantor, the action will not lie, and in effect
Conaway v. Gore ei at, supra,
conforms therewith. Nebraska, which has exact statutes relating
to forcible detainer (sections 1962-1965, Cobbey’s Ann. St. Neb. 1907, vol.
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Williams. J.
(after stating the facts as above). The only question essential for the determination of this case is whether or not the court erred in finding that the question of title to real
estate was involved in said case, and discharging the jury and dismissing the same.
Under the laws of the territory of Oklahoma, justices of the peace have original jurisdiction to try actions for forcible entry' and detainer or detainer only, of real property. Section 4929, Wilson’s Rev.
&
Ann. St. 1903; chapter 67, art. 1, § 2, Code Civ. Proc.
McDonald v. Stiles,
7 Okla. 328, 54 Pac. 487. The title to real estate, where the right to possession of the same is in controversy, in a forcible detainer action, may 'not be put in issue so as to adjudicate such title, for in such action the title, as such, cannot be determined; it being merely intended that only the right to possession should be tried in such an action.
Oklahoma City v. Hill, 4
Okla. 531, 46 Pac. 568;
Chisholm v. Weise,
5 Okla. 217, 47 Pac. 1086;
Brown v. Hartshorne,
12 Okla. 121, 69 Pac. 1049;
McQuiston v. Walton,
12 Okla. 130, 69 Pac. 1048;
Conaway v. Core,
27 Kan. 122;
Buettinger v. Hurley,
34 Kan. 585, 9 Pac. 197;
Ow v. Wickham,
38 Kan. 225, 16 Pac. 335;
McClain v. Jones,
60 Kan. 639, 57 Pac. 500.
For the reason that title may not be adjudicated and finally-determined in a forcible detainer action, it is provided that neither before a justice of the peace nor in the district court, in, such action, shall such judgement be a bar to any other action brought by either party. See section 5088, Wilson’s Rev. & Ann. St. 1903; chapter 67, art. 13, § 161, Code Civ. Proc. When a party seeks to have title adjudicated in such an action, or to oust the court of jurisdiction by such an averment, such allegation should be stricken out upon motion. Section 5934, Wilson’s Rev. & Ann. St. 1903 (chapter 67, art. 1, § 7, Code Civ. Proc.), providing that:
“If in any action commenced before a justice it appears to the satisfaction of the justice that the title or-boundaries of land is in dispute in such action, said action shall be stayed before [said justice, and said justice shall, within ten days thereafter, certify ' said case, and transmit all papers and process therein to the clerk of the district court of his county', and said case
shall be docketed and thereafter proceeded within the district court as if originally commenced therein ; * * * ”—
in this jurisdiction does not apply to forcible detainer actions.
McDonald v. Stiles,
7 Okla. 328, 54 Pac. 487;
Armour v. Howe,
62 Kan. 588, 64 Pac. 42.
The case of
Torrey v. Berke,
11 S. D. 157, 76 N. W. 302, in construing section 9, art. 2, c. 1, p. 1075, Rev. Codes S. D. 1903, which provides:
“The parties to an action in a justice’s court cannot introduce evidence upon any matter -wherein the title to, or boundary of, real property in anywise comes in question; and if it appear from the answer of .the defendant, verified by his oath, that the determination of the action will necessarily involve the question of title to, or boundary of, real property, in anywise, the justice must suspend all further proceedings in the action, and certify the pleadings, and if any of the pleadings are oral, a transcript of the same from his docket, to the clerk of the circuit court of the county or subdivision,” etc.— appears to be in conflict with the rule announced by the Supreme Court of Kansas and Oklahoma Territory. But by reference to section 47, art. 8, c. 1, p. 1081, it will be found that, as to forcible entry and detainer actions, it is provided that:
“The complaint must be in writing, and verified by the plaintiff, his agent, or attprney, and the proceedings may be bad before any justice of the peace of the county where the premises are situated, and shall be governed by the same rules as other cases before justices of the peace, except as herein modified: Provided, that when the title to, or boundary of, the real property, in anywise comes in question, the case shall-be certified to the circuit court as in this chapter provided.”
No such provision was contained in the statutes of Kansas or Oklahoma Territory.
For the purpose of this case, under the tender of evidence on the part of the plaintiff in error, it will be assumed that he had the legal title in himself, and that 'the Caddo County Town-site Company, through whom he deraigned title, had the capacity both to acquire and convey to him the property in question.
The question further arises as to whether or not the defend
ant in error occupied said land with such color of title as would defeat this action. The executory contract relied upon by the defendant in error was neither made in the name of the Caddo County Townsite Company, nor was there any proof offered to show that the alleged agents were authorized to make such a contract. Hence it is not essential, under the facts, to determine as to whether or not a contract made in the name of the agent of the owner of real estate, by virtue of parol authority, could bind such owner so as to vest an equitable title in the vendee. There is' no evidence that the townsite company ever received the $50, or any part of it, that was paid to Hungate and Judge, and no question of estoppel therefore could arise; nor do the facts in this record bring the ease within the rule in the case of
Smith v. Kirchner, 7
Okla. 169, 54 Pae. 439, wherein it was held that where the defendant- was in possession of a tract of land under contract to' convey title, same constituting a contract of sale, the right of possession of the defendant rested under such equity, remaining so long as the contract existed, and could not be terminated and converted into a tenancy without the consent of all parties thereto, and the possession could not be construed to be unlawful until the contract was finally determined, which could not be done in an action of forcible entry and detainer. The rule in that case appears to have been followed, also, in the cases of
Dysart et al. v. Enslow,
7 Okla. 386, 54 Pac. 550;
Alderman v. Boeken, 25
Kan. 660 (2d Ann. Ed. 461), and
Kellogg
v.
Lewis,
28 Kan. 535. The ease of
Conaway v. Gore et al., 27
Kan. 122, also appears to harmonize, with the rule announced by the foregoing eases. The defendants in that case proved their equitable title as against the legal title, and possession by virtue of the equitable title from plaintiff defeated the claim of such plaintiff in forcible detainer. The only difference is that, under the rule in the foregoing cases, it appears that, when an occupier of lands and tenements has color of title from the plaintiff or his grantor, the action will not lie, and in effect
Conaway v. Gore ei at, supra,
conforms therewith. Nebraska, which has exact statutes relating
to forcible detainer (sections 1962-1965, Cobbey’s Ann. St. Neb. 1907, vol. 1), is also in accord with the case of
Smith v.
Kirchner,
supra.
Ohio, also, has the same statutes (sections 6599-660,2, Bates5 Ann. St. Ohio,, vol. 2 [4th Ed.), and the courts of that state are also in accord with the decisions of Oklahoma.
Brennan v. Cist,
9 Ohio S. & C. P. Dec. 18, 6 Ohio N. P. 1;
Schmidt v. Schmidt, 13
Ohio S. & C. P. Dec. 666, 10 Ohio N. P. 177.
In this case, with the assumption that plaintiff had an unbroken legal title and offered to prove that the defendant went into possession of said property as a trespasser, and occupied the same without color of right or title, all the proof having been offered by the defendant to the effect that after he went into possession he entered into a contract with Ilungate and Judge, which contract does not purport to bind the owner of the fee to grant an equitable title to the defendant, and the further claim of a quitclaim deed from a third party, in whom there is no claim that the fee rested, such was not sufficient proof to show that he occupied or held said property under color of title so as to defeat a forcible detainer action.
As to what effect the adjudication by the judgment rendered on April 12, 1907, in the suit for rents, would have, we do not determine in this case, because the question is not briefed. True, that action was instituted before this forcible detainer action; but the judgment, having been rendered after the forcible detainer action was begun, as to what effect that judgment may have in the determination of the forcible detainer action is not passed on in this ease.
Counsel for defendant in error insists that the title of plaintiff in error is void, by virtue of sections 2111 and 2112, Wilson’s Eev.
&
Ann. St. 1903; but can the validity of a deed be raised in a forcible detainer action, a justice of the peace not having the power to determine the question of title? It is not essential to dispose of that question in this case, for the record shows that the defendant in error was not in possession of said premises under color of title for as long a period as one year before the
plaintiff in error procured tbe legal title by deed, and there is no contention that said property was in controversy- in any pending suit at that time.
Jennings v. Brown,
20 Okla. 294, 94 Pac. 557;
Huston v. Scott et al.,
20 Okla. 142, 94 Pac. 512.
v The judgment of the lower court is reversed, with instructions to reinstate this cause and proceed in accordance with this opinion.
All the Justices concur.