The opinion
*583 Supplemental Opinion on Rehearing
PER CURIAM.
Plaintiffs in error urge on rehearing that this court overlooked several of their contentions which are decisive. The appeal herein was from order of the trial court granting a new trial to certain of the defendants. In concluding that the trial court did not err, we deemed it appropriate to decide certain meritorious questions for the guidance of trial court and counsel upon another trial of the cause. The remaining contentions of plaintiffs in error will now be considered.
The first contention is, as follows:
“The granting of a new trial is error, where:
“(a) Defaulting parties have not moved for a new trial, and the granting of a new trial for them is at a different term.
“(h) Where the cross-petitioners who did file motion for new trial had neither a claim nor cause of action”.
In support of this proposition, it is argued:
“There were about forty-one defendants named. None appeared. Wilson Tiger, Jr., not named as a defendant, without notice, leave or process, filed cross-petition. Default decree was granted against some thirty-three defaulting defendants. The court vacated these default judgments two years after the decree.”
The judgment of the trial court in favor of plaintiffs was entered on October 19, 1955. It recites: “ * * * the defendant Wilson Tiger, Jr., appearing in person and by his attorney, W. F. Semple, * * * the defendants Colbert Turkey, Lucy Deer, nee Tiger, Alice Lee, Nellie Starr, Rachel Kelly, Walter Kelly and Betty Kelly, as defendants-cross petitioners appearing by their attorney W. F. Semple. * * * ”
On October 20, 1955, Motion for New Trial was filed by W. F. Semple as attorney on behalf of “defendants and cross-petitioners.”
The order of the trial court granting a new trial, dated November 1, 1957, recites: “there comes on for hearing the Motion for New Trial of the defendants and cross-petitioners Colbert Turkey, Lucy Deer, nee Tiger, Wilson Tiger, Jr., Alice Lee, Nellie Starr, Alexander Kelly, Rachel Kelly, Walter Kelly and Betty Kelly; * * * and the other defendants appearing not; and orders and adjudges that the Motion for a New Trial of the defendants and cross-petitioners, Colbert Turkey group, should be and the same is hereby sustained, * *.”
All of the above-named defendants are parties to this appeal. Our decision affirmed the action of the trial court in sustaining their motion for new trial. We are unable to see the pertinency of paragraph (a) of the proposition. Paragraph (b) is, we think, adequately disposed of by our decision herein holding that the property involved was restricted and non-taxable in the absence of approved conveyances by the full-blood heirs, and that the cross-petition of said defendants was timely filed.
Plaintiffs in error contend that the failure of cross-petitioners to tender taxes and penalties bars their action to cancel the resale tax deed. In Cherry v. Crown Hill Cemetery Trust, 200 Okl. 35 , 191 P.2d 591 , we held that where the pleadings contain a prima facie showing that the land was non-taxable, no tender of taxes is necessary prior to determination of that issue.
Next, plaintiffs in error contend that' cross-petitioners are judicially estopped by judgment from litigating the question of taxability, alienability and restrictions on the land as previously adjudged against them in the district court of Tulsa County. The argument advanced in support of this proposition is as follows:
“It has been three times heretofore judicially finally established and adjudged that this allotment to the heirs of Eliza Tiger was 'taxable’; the tax sales and tax resales thereof was valid; the heirs of Eliza Tiger and the Five *584 Civilized Tribes were judicially excluded as having no interest in such allotment.”
The three judgments referred to by plaintiffs in error were rendered in the following causes in the district court of Tulsa County, Oklahoma:
No. 78869, Sears-McCullough Mortgage Company, J. W. Hobgood and Nora E. Hobgood v. Eliza Tiger, Creek Roll No. 7963, et al.
No. 79190, A. G. Carlson et al. v. The Unknown Heirs etc. of Eliza Tiger, deceased, et al.
No. 88472, Fred A. Losey v. The Unknown Heirs, etc. of Eliza Tiger, deceased.
The rule of “estoppel by judgment” was well stated in the syllabus in Woodworth v. Town of Hennessey, 32 Okl. 267 , 122 P. 224, 226 , as follows:
“A fact or question which was actually and directly in issue in a former suit, and was there judicially passed upon and determined by a domestic court of competent jurisdiction, is conclusively settled by the judgment therein, so far as concerns the parties to that action, and persons in privity with them, and cannot be again litigated in any future action between such parties or privies, in the same court or in any other court of concurrent jurisdiction, upon the same or a different cause of action.”
See, also, Wilkey v. Southwestern Greyhound Lines, Okl., 322 P.2d 1058 .
We note that the tract which is the subject-matter of this action was not involved in any of the cases referred to, although it was a part of the allotment of Eliza Tiger, deceased, as were the tracts involved in those cases, and that at least some of the defendants and cross-petitioners in the instant case were either parties to or privy to the parties in the cases referred to.
In Cause No. 78869, title was not designed prior to 1949. The judgment generally quiets title in plaintiffs as against all defendants but there is no allegation or determination that the lands involved therein were unrestricted or taxable.
The judgments in Nos. 79190 and 88472 included findings that Mahaley Kelly, Nancy Tiger, Wadley Kelly and Wesley Tiger were the sole and only heirs of Eliza Tiger, deceased, and that they had conveyed all their right, title and interest in and to said property.
Under the law of our decision, the restrictions on said land would have been removed by approved conveyances by the full-blood heirs, in which event the lands would have been liable for ad valorem taxes, as adjudged.
We must presume that the judgments were valid and responsive to the evidence. Mulhall v. Mulhall, 3 Okl. 304 , 41 P. 109 ; Ashinger v. White, 106 Okl. 19 , 232 P. 850 ; Cox v. Warford, 34 Okl. 374 , 126 P. 1026 ; Raymer v. First Nat. Bank of Berwyn, 184 Okl. 392 , 87 P.2d 1097 . Inhering therein were findings of every fact and every conclusion of law (uncontradict-ed by the judgment roll) that were necessary to support them. Murphy v. Walkup et al., Okl., 258 P.2d 922 , 928 and Woodrow v. Ewing, Okl., 263 P.2d 167, 172 , and cases there cited.
The case cited by plaintiffs in error, Barnett v. Newcomer, Okl., 307 P.2d 148 , is clearly distinguishable. In that case, the judgment which was pleaded as estoppel found that the land involved was not then restricted imder any act of Congress.
It follows that the judgments relied upon by plaintiffs in error cannot properly be construed as having decided that the lands included in the allotment of Eliza Tiger, deceased, were unrestricted and taxable prior to approved conveyances by her full-blood heirs, and therefore they cannot constitute an estoppel as to that issue. The general findings that said heirs had no right, title or interest in the tracts involved in those actions could not bind the heirs as to the tract involved in the instant case.
Plaintiffs in error next contend that the conveyance by Wesley Tiger in July, 1913 *585 ‘‘sufficiently started the statute of limitations against his cotenants.” They cite Kanuebbe v. McCuistion, 168 Okl. 165 , 33 P.2d 1088 , which is clearly distinguishable. In that case, the widow and children of the original allottee conveyed, with court approval, all their right, title, and interest in the land involved therein in 1909, and the grantee and his successors had been in actual open, notorious, adverse and exclusive possession from that date to the date of commencement of the action in 1929.
In the present case we held that the prescriptive period of fifteen years was applicable, but that plaintiffs in error had failed to prove the requisite adverse possession for the prescribed period.
The final contention of plaintiffs in error is that there is no right of action in any of the defendants and cross-petitioners (parties to this appeal) to determine the heirs of Eliza Tiger. In this connection, it is argued that the statutes of this state do not provide a right of action to determine heirs, nor to quiet title, unless the deceased ancestor was in fact at some time or another actually in possession of the property, and that, since Eliza Tiger died before enrollment, she could never have been in possession of the lands included in her allotment. Plaintiffs cite the language of 84 O.S.1951 § 257 as authorizing an action to determine persons entitled to real property, “where any person dies intestate, possessed of real property in this State * *
Said statute further provides:
“or where the grantees in any deed, or deed of patent made and issued or designated as ‘the devisees,’ of ‘the heirs at law’ or ‘the legal representatives’ of a named deceased person, without naming them, or by any other description or designation which leaves at large the names or individual identity of the particular persons embraced therein, the name and individual identity of (such persons) may be judicially determined * *
The land involved in the instant case was allotted by deed of March 26, 1904, to “The Heirs of Eliza Tiger, Creek Indian Roll No. 7963 (deceased).” Under the quoted language of the statute, said defendants had a right to have the identity of the “Heirs” determined.
Furthermore, the answer and cross-petition of the defendants alleged a cause of action in the nature of ejectment for possession of the land in question and to quiet title thereto. It is well settled that one not in possession may bring an action for possession and to quiet title by cancellation of a deed which constitutes a cloud on the title. 12 O.S.1951 § 1141; Sarkeys v. Martin, Okl., 286 P.2d 727 ; Sooner Pipe & Iron Co. v. Bartholomew, 207 Okl. 191 , 248 P.2d 225 . In the last cited case, at page 227 of the Pacific Reporter, we said:
“Plaintiffs in error further contend that the defendants in error were not in possession and therefore could not maintain an action for quieting title. The petition delineates the chain of title showing that the land was the allotment of James W. Phillips, an Osage Indian, and was sufficient to maintain an action to quiet title and for possession of the premises under Title 12, § 1141, O.S.1941.”
Rehearing is denied.
DAVISON, C. J., WILLIAMS, V. C. J., and WELCH, HALLEY, JOHNSON, JACKSON and IRWIN, JJ., concur.