TURNER v. McNEAL

TURNER v. McNEAL
1926 OK 544
247 P. 39
118 Okla. 238
Case Number: 16699
Decided: 06/08/1926
Supreme Court of Oklahoma

TURNER et ux.
v.
McNEAL.

No. 16699.

June 8, 1926.

Syllabus by the Court

¶0 A petition which alleges that the plaintiffs are the owners in fee and in the actual, peaceable possession of real property, describing it, and that the defendant claims an interest therein adverse to plaintiffs, and that the claim of the defendant is a cloud upon the plaintiffs' title, sufficiently states a cause of action.

Woodson E. Norvell and Edward E. Harvey, both of Tulsa, for plaintiffs in error.
O. R. Fowler, of Tulsa, and James H. Gernert, of Henryetta, for defendant in error.

RAY, C.

¶1 The question here for decision is, Was the defendant's general demurrer to plaintiffs' petition properly sustained? The facts alleged are, in substance, that the plaintiffs Leland E. Turner and Lora Edith Turner are husband and wife, and that on or about the 18th day of September, 1920, they bought lot 20, block 1, in Beauchamp addition to the city of Tulsa for a homestead, and that they had continually occupied and claimed it as such since that time; that the defendant, P. A. McNeal, claims to have a lien upon the premises so owned and occupied by the plaintiffs as their homestead by reason of a certain judgment entered in the district court of Tulsa county in cause No. 25945, entitled M. Hughes, Trustee Central Savings & Loan Association of Marshall, Missouri, Plaintiff, v. Nellie B. McLeod, M. F. McLeod, L. E. Turner, and Frank Hackathorn, Defendants, in the sum of $450 but that the judgment under which a lien is claimed was not rendered on account of any claim or demand for any unpaid portion of the purchase price, nor for any improvements constructed thereon, nor for any claim for mechanics' or materialmen's lien against the property, nor for any mortgage, tax, or special assessment made or levied against the real estate, or any part thereof; that the plaintiffs own and hold the real estate free and clear of any claim or demand of the defendant whatsoever; that the plaintiffs had applied to the Home Building & Loan Association for loan of money to pay off and discharge certain liens and incumbrances upon the real estate; that the loan so applied for had been duly approved by the loan association; and that the defendant, with wrongful and fraudulent designs of oppressing, harassing, and defrauding these plaintiffs, had demanded that they pay him the sum of $100 to release the judgment and to remove the cloud from the title of these plaintiffs to their homestead. It is further alleged that plaintiffs had been put to additional expense in interest accumulations, court costs, counsel fees, and loss of time in an effort to secure from defendant an oral or written statement or admission that he does not claim any lien against plaintiffs' homestead by reason of the judgment, and that, by reason thereof, the plaintiffs have sustained actual damage in the sum of $500. It is further alleged that, by reason of the acts of oppression, malice, fraud, and unlawful demand so made by the defendant, the plaintiffs are entitled to recover exemplary damages in the sum of $25,000.

¶2 Plaintiffs prayed judgment removing the cloud from the title and quieting title against the defendant and any and all persons claiming by, through, or under him, and for damages in the sum of $25,000.