
    SARKEYS v. EVANS.
    No. 30697.
    Oct. 5, 1943.
    
      141 P. 2d 801.
    
    Chas. E. Wells, of Shawnee, for plaintiff in error.
    Wyatt, Wyatt & Green, of Shawnee, for defendant in error.
   CORN, C. J.

This is an appeal from a judgment of the district court of Pottawatomie county, quieting title to real estate based upon a county deed to property acquired by the county at a tax resale.

The action was brought by Elza Evans, grantee in said county deed, against S. J. Sarkeys, the record owner at the time of the tax sale, and numerous other defendants. Judgment was for the plaintiff, and the defendant Sarkeys appeals.

It is contended by the defendant that the case was not prosecuted by the real party in interest.

At the close of the evidence the defendant demurred to the evidence on the ground that the evidence snows that the plaintiff is not the real party in interest, which demurrer was by the court overruled, and judgment was rendered in favor of the plaintiff.

There may be two theories upon which the plaintiff could maintain the action:

(1) Where he owned the land at the time the action was commenced, and sold it subsequently. Sec. 235, T. 12, O. S. 1941.

(2) Where he was warrantor of the title. Cressler v. Brown, 79 Okla. 170, 192 P. 417; Kingkade v. Plummer, 111 Okla. 197, 239 P. 628; annotation 97 A. L. R. 711.

The record is clear that the plaintiff conveyed the land prior to the date of the trial, and did not own any interest therein at that time. But the record is silent as to when he made such conveyanee and as to whether he warranted the title to the land when he sold it.

Therefore, in the absence of a showing in the record that the plaintiff was a proper party to prosecute the action, the judgment is reversed.

GIBSON, V. C. J., and OSBORN, BAYLESS, WELCH, HURST, DAVISON, and ARNOLD, JJ., concur. RILEY, J., not participating.  