Allison v. Crummey

• Decision Date: 12 September 1916
• Docket Number: Case Number: 7393
• Citation: 64 Okla. 20,166 P. 691,1916 OK 776
• Parties: ALLISON v. CRUMMEY et al. (Two Cases.)
• Court: Oklahoma Supreme Court

1916 OK 776

166 P. 691

64 Okla. 20

ALLISON v. CRUMMEY et al.(Two Cases.)

Case Number: 7393

Supreme Court of Oklahoma

Decided: September 12, 1916

Syllabus

¶0 1.Indians -- Allotments -- Restriction of Alienation--Removal.

All restrictions upon the alienation of the allotments of minor allottees of the Five Civilized Tribes having less than half Indian blood, and the restrictions upon the alienation of all lands except homesteads of said allottees, enrolled as mixed blood Indians of half or more than half, and less than three-quarters, Indian blood, are removed by Act Cong.May 27, 1908, c. 199,35 Stat. 312, pt. 1.

2.Same--Validity of Deed.

A deed executed by a minor allottee of said tribes, whose restrictions have been removed by said act, to his allotted lands, is void, and title thereto can only be obtained through proceedings in the county court as provided by the statutes of this state.

3.Guardian and Ward--Sale of Ward's Land--Fraud--Setting Aside Sale.

Where a guardian sells the lands of his ward, upon a secret understanding that the purchaser shall not pay for same and the sale is confirmed by the court and deed executed and delivered to the purchaser, such facts constitute a fraud upon the estate of the ward, and the sale may be set aside in an action by the ward against said purchaser, or any other person who acquires rights in said lands with notice of such secret fraud.

4.Same--Sale of Ward's Estate--Purchase by Guardian.

A guardian cannot, directly or indirectly, purchase any property belonging to the estate of his ward, nor must he be interested in any sale thereof.

5.Same--Sale of Ward's Land--Validity.

A sale by a guardian of real estate belonging to his ward to himself through the interposition of a third person is not void absolutely, but is voidable in an action brought to set aside same as against the purchaser or guardian or some one claiming under him with knowledge of the circumstances of the sale, or one who was not a bona fide purchaser or incumbrancer for good and sufficient consideration and without notice.

6.Principal and Agent--Relation--Agency for Loan Company.

One who on behalf of a loan company takes applications for loans and sends them to the company, who passes upon the application and the security offered and then sends to such person notes and mortgages to be executed by the borrower, which is done under the supervision of such person, and returned to the loan company, who thereupon sends a check for the amount of the loan to that person to be delivered to the borrower, is the agent of the loan company.

7.Same--Knowledge of Agent--Imputation to Principal.

Where the agent of a loan company performing the duties set out in the preceding paragraph of this syllabus obtains notice or knowledge of fraud in a guardian's sale of a minor's lands, such notice or knowledge will be imputed to his principal, where obtained by the agent prior to the payment of the sum loaned to the borrower.

8.Mortgages--Sale of Ward's Land--Non-payment--Notice to Mortgagee of Non-payment of Price.

Where an order of sale directs a guardian to sell lands of his ward for cash and same are sold for a sum to be paid in cash upon confirmation of the sale by the court, and the execution and delivery of a guardian's deed, and a loan company takes a mortgage upon said lands from the purchaser six days before the sale is confirmed and guardian's deed executed and delivered, said company is charged with notice apparent upon the face of the record that the purchase price of said lands has not been paid.

9. Same.

Though a second mortgage be subsequently taken and the first mortgage released because title to ten acres of land embraced therein is not good, this will not relieve the loan company of the consequences of the notice imputed to it at the time the first mortgage was taken.

Error from District Court, Jefferson County; Frank M. Bailey, Judge.

Suit by Josie Allison against George W. Crummey, Deming Investment Company, E. E. Ford, and others, consolidated with suit by Wade Allison, by next friend, against the same defendants.Judgment for defendantsDeming Investment Company and E. E. Ford, and plaintiffs bring error.Reversed, and cause remanded.

J. B. Moore, for plaintiffs in error.

Cottingham & Hayes, Bridges & Vertrees, H. A. Kroeger, and Charles B. Mitchell, for defendants in error.

HARDY, J.

¶1George W. Crummey, as guardian of his minor stepchildren, Wade Allison and Josie Allison, sold under order of the county court of Jefferson county certain lands of his wards to one Joseph T. Dillard for a consideration to be paid in cash upon the execution and delivery of deeds to purchaser.Deeds were executed and delivered, but no consideration was paid at the time.Dillard executed mortgages upon said premises to the Deming Investment Company and to E. E. Ford, and afterwards executed a deed to one Nick Souse, who conveyed the lands to Crummey, the guardian.Josie Allison in her own right, and Wade Allison, by next friend, brought suit for possession of the lands alleged to belong to them, respectively, and a trial resulted in judgment for defendantsDeming Investment Company and E. E. Ford, and plaintiffs bring error.

¶2The plaintiffs were both minors at the time of the guardianship proceedings in which the sales were had, and were of one-half Chickasaw Indian blood, and it is contended that the lands in controversy, which were the surplus portion of their allotments, were restricted from alienation, and that such restriction could only be removed and valid conveyances made thereto through proper proceedings in the county court.The regularity of the probate proceedings is not questioned save in this: That a sale was authorized for cash, and the order of confirmation directed the execution and delivery of deeds upon the payment in cash of the sum bid, and that a deed was in fact executed without requiring the payment of said bid or any part thereof, and it is argued that by reason thereof the restrictions upon the alienation of said lands have not been removed, and the deeds executed thereto are void, and no title passed thereunder, and all subsequent conveyances are likewise invalid.Section 1 of the act of Congress of May 27, 1908, is in part as follows:

"That from and after sixty days from the date of this act the status of the lands allotted heretofore or hereafter to allottees of the Five Civilized Tribes shall, as regards restrictions on alienation or incumbrance, be as follows: All lands, including homesteads of said allottees enrolled as intermarried whites, as freedmen, and as mixed blood Indians having less than half Indian blood including minors shall be free from all restrictions.All lands, except homesteads, of said allottees enrolled as mixed blood Indians having half or more than half and less than three-quarters Indian blood shall be free from all restrictions."

¶3Section 2 of said act is in part as follows:

"* * * And provided further, that the jurisdiction of the probate courts of the state of Oklahoma over lands of minors and incompetents shall be subject to the foregoing provisions, and the term minor or minors, as used in this act, shall include all males under the age of twenty-one years and all females under the age of eighteen years."

¶4Section 6 provided:

"That the persons and property of minor allottees of the Five Civilized Tribes shall, except as otherwise provided by law, be subject to the jurisdiction of the probate courts of the state of Oklahoma. * * *"

¶5 And it is further provided in said section that:

"Provided [further], that no restricted lands of living minors shall be sold or incumbered, except by leases authorized by law, by order of the court or otherwise."

¶6Section 5 declares void any attempted alienation or incumbrance of allotted lands prior to the removal of restrictions therefrom.Sections 1,2, and6 of said act were considered in Jefferson v. Winkler, 26 Okla. 653, 110 P. 755, and it was there held that:

"By reason of sections 1,2, and6 of said act of May 27, 1908, c. 199,35 Stat. 312, pt. 1, the restrictions on the alienation of the allotments of minor freedmen and minor Indians of the Creek Tribe of Indians having less than half Indian blood are removed, and allotments of such allottees may be sold under the order and supervision of the probate courts of the state."

¶7The act applies to all Five Civilized Tribes, and this construction of its terms would be equally applicable to plaintiffs.It was said in Tirey v. Darneal, 37 Okla. 606, 133 P. 614, that section 6 of the act of Congress of May 27, 1908, was in the nature of a restriction upon the alienation of lands belonging to minor allottees which could only be removed in a regular proceeding as provided by statute through the instrumentality of the county court, and that a deed executed by a minor, even though married, without an attempt to comply with said law, was void.In Truskett v. Closser, 236 U.S. 223, 35 S. Ct. 385, 59 L. Ed. 549, the Supreme Court of the United States approved the decisions of this court in Jefferson v. Winkler, and in Tirey v. Darneal, and counsel, taking these decisions as a premise, argue that because the consideration was not paid for said lands, the proceedings resulting in the sale thereof were not regular, and therefore the restrictions upon the alienation thereof were not removed and no title passed.This position is based upon the proposition that the restrictions upon the alienation of said lands were not removed by the act of Congress of May 27, 1908, and could only be removed through the medium of probate proceedings resulting in a sale thereof, which must be regular in every requirement.Section 1 of said act specifically declares that restrictions upon the alienation of lands of the class here involved are removed by said act, and jurisdiction to decree a sale thereof is conferred upon the probate courts of the state.If the restrictions are not...