
    George W. Mouldin v. L. M. Rice, S. T. Rice, and Estella Bradford.
    (Filed September 5, 1907.)
    (91 Pac. 1032.)
    VENUE — 'Action to Recover Real Estate — County of Defendant’s Residence. By virtue of section 10 of the organic act of this territory, an action to recover the possession of real estate must be instituted in the county Where the defendants or either of them reside or may be found.
    (Syllabus by the Court.)
    
      Error from the District Court of Logan County; before Jno. Hi Burford, Trial Judge.
    
    Affirmed.
    
      Devereux & Hildreth, for plaintiff in error.
    
      Cotteral & Hornor, for defendants in error.
   Per Curiam:

This was an action brought in the district court of Logan county by L. M. Rice, S. T. Rice, and Estella Bradford against George W. Mouldin, a resident of Logan county, to recover the possession of a quarter section of land situated in Garfield county, Oklahoma. To this petition the defendant interposed a demurrer, on the ground that the court had no jurisdiction of the subject-matter of the action, and because the petition failed to state facts sufficient to constitute a cause 'of action. This demurrer was overruled, to which action the defendant at the time duly excepted, declined to plead further, and elected to stand upon the demurrer. Thereupon the court entered judgment upon the pleadings in favor- of the plaintiff and against the defendant, to recover the possession of the land, as prayed for in the petition, from which ruling and judgment the defendant brings the case here for review on a certified transcript of the record.

There was no error in overruling the demurrer to the petition, since the court had jurisdiction of the subject-matter of the action, and the petition stated facts sufficient to constitute a cause of action for the recovery of real estate under our code. On the question of jurisdiction of the subject-matter of the actio,n, the case of Burke v. Malaby, 14 Okla. 650, 78 Pac. 105, is decisive, in which case it was held that:

“An action affecting an interest in real estate in this, territory, 'where the real estate’ is situated in one county and the defendant resides in a different county, must be instituted in the county where the defendant resides.”

In this case the defendant resided in Logan county, and the right of the plaintiffs’ action depended upon the interpretation of an ante-nuptial marriage contract.

We therefore hold that the court had jurisdiction of the subject-matter of the action, and that the petition stated facts sufficient to constitute a cause of action, and the defendant’s demurrer was therefore properly overruled.

The judgment of the court below is affirmed.

Burford, C. J., who presided in the court below, not sitting; Irwin,' J., absent; all the other Justices concurring.  