Armstrong v. Phillips
| Decision Date | 08 March 1921 |
| Docket Number | 11448. |
| Citation | 198 P. 499,82 Okla. 82,1921 OK 81 |
| Parties | ARMSTRONG v. PHILLIPS ET AL. |
| Court | Oklahoma Supreme Court |
Rehearing Denied May 31, 1921.
Syllabus by the Court.
Where in a case properly triable to a jury, a jury is waived, and the case is tried to the court, the findings of the court in favor of one of the parties will, upon review here, be given the same weight as the verdict of the jury, and the findings of fact will not be disturbed where there is competent evidence reasonably tending to support such findings, and "in a case of purely equitable cognizance the findings of the trial court will not be disturbed on appeal unless the same are clearly against the weight of the evidence.
The provisions of the act of Congress of May 27, 1908, removed the restrictions on the alienation of the allotments of minor Cherokee Indians having less than one-half Indian blood, and provided that such allotments may be sold under the order and supervision of the probate courts of the state, and in no other way; but necessarily no question arising under the act relates to any property acquired by such allottees otherwise than by and through the allotment of the lands belonging to the tribe, because the act does not purport to deal with any property except that.
Section 1, art. 1, c. 13, Session Laws 1909, authorized female persons of the age of 18 years, being otherwise qualified thereto, owning real estate, to mortgage, convey, or otherwise dispose of or make any contract relating to real estate or any interest therein. Section 3832 et seq. of Wilson's Rev. & Ann. Statutes of Oklahoma 1903 provides that the district court for the several counties shall have authority to confer upon minors the rights of majority, so that every act done by the person so authorized shall have the same force and effect in law as if done by persons at the age of majority. Held, that this provision applies to a female of three-eighths Indian blood; (b) that the judgment of the district court in a proceeding brought under these provisions of the statute conferring such majority rights is not subject to collateral attack, and confers upon her the right to contract in relation to any property acquired by her otherwise than by and through the allotment of the lands belonging to such Indian Tribe only, but does not apply to allotted lands or to trust funds derived therefrom.
Where a party plaintiff sues to cancel her deed, absolute upon its face, and to recover the land, alleging that such conveyance was intended to operate as a mortgage, and offers to return the purchase price with accrued interest, and the defendant is a subsequent vendee, and pleads that he is an innocent purchaser for value and without notice, the burden of proving that the instrument was intended to operate as a mortgage is upon the plaintiff, and the evidence must satisfy the high standard of probative force requiring that the same must be cogent, convincing, clear, and satisfactory; otherwise such proof must fail, and the defendant will be entitled to retain the land and to full and complete relief.
Record examined, and held, that the judgment of the court is not clearly against the weight of the evidence, and the same is affirmed.
Additional Syllabus by Editorial Staff.
A proceeding for the removal of the disabilities of minority is not an action as defined in section 4644, Rev. Laws 1910, but is a special proceeding as defined in section 4645.
Appeal from District Court, Washington County; Preston A. Shinn Judge.
Suit by Minnie Armstrong against Frank Phillips and others. Judgment for defendants, and plaintiff appeals. Affirmed.
Norman Barker, of Bartlesville, B. T. Hainer, of Oklahoma City, and McGuire & Devereux, of Tulsa, for plaintiff in error.
Rowland & Tolbott, John H. Kane, and R. H. Hudson, all of Bartlesville, and Burford, Miley, Hoffman & Burford, of Oklahoma City, for defendants in error.
This is the second appeal to this court in this cause, and involves the N.W. 1/4 of the N.E. 1/4 of section 6, township 26, range 13 east, containing 40 acres, situated in Washington county, Okl.
The record discloses that the original petition was filed in the district court of Washington county on February 15, 1917. It alleges, in substance, that Minnie B. Armstrong was a three-eighths Cherokee Indian; that on May 15, 1909, she purchased from one John Hildebrand the land in this litigation; that said land was purchased from moneys received by her as the proceeds derived from her restricted allotted and inherited lands, and from no other source; that on February 28, 1910, she conveyed said land to Arthur Armstrong, who thereafter leased for oil and gas purposes to A. H. Huling and J. C. Bixler, who later assigned to McCandless, Beatty, and Congdon; that on June 19, 1915, Arthur Armstrong conveyed said lands to Frank Phillips, who had developed the same for oil and gas, and had removed large quantities of oil therefrom; that her deed to Arthur Armstrong was made without the supervision of the county court of Washington county, and was therefore void. Copies of all instruments were attached, and plaintiff prayed for cancellation of said deed, that her title be quieted, and that she recover $25,000 damages for oil and gas taken from the land.
On March 17, 1917, defendant Frank Phillips filed motion to strike portions of plaintiff's said petition, which motion was by the court sustained, and on May 13, 1917, plaintiff filed an amended petition. In this amended petition plaintiff abandons the theory that said lands were purchased with moneys derived from her allotted lands. She alleges that she is the owner of the lands, and that the defendant Frank Phillips unlawfully keeps her out of possession thereof. She further alleges that on the 8th day of June, 1908, she executed a deed to said lands, to one V. J. Knisley, but that said deed was void for the reason that she was at that time a minor, and for the further reason that said deed was obtained by fraud; that while the title stood in Knisley's name he mortgaged the land to the Citizens' Bank & Trust Company, of which Frank Phillips was president; that Knisley's title was set aside by the court, but that the bank was threatening to foreclose its mortgage, and because of such threats she conveyed the land to Arthur Armstrong to procure money to pay said mortgage; that her deed to Arthur Armstrong was intended as a mortgage; and that the bank and Frank Phillips had knowledge of these facts. She prays for cancellation of all conveyances, but offers to redeem from the alleged mortgage to Arthur Armstrong.
On May 24, 1917, plaintiff filed a second amended petition. In this second amended petition, she still makes no reference to any claim that the land was purchased with moneys derived from her allotment. She joins the Lewcinda Oil Company as party defendant, alleging that Phillips had leased the lands to said company, and that the company had knowledge that her deed to Arthur Armstrong was a mortgage. She alleges that said deed was void, because of her minority, and further alleges that said deed was intended as a mortgage, and offers to redeem therefrom.
The defendant Frank Phillips filed an answer which was subsequently adopted by each of the other defendants. The answer denied all the allegations of the petition, alleged ownership in Phillips and the Lewcinda Oil Company, denied knowledge of any mortgage transactions between plaintiff and Arthur Armstrong, and set up proceedings in the district court of Washington county for the removal of plaintiff's disabilities of minority and decree of the court removing disabilities and conferring upon plaintiff the rights of majority and the right to do business as an adult person.
The answer further alleged that after the removal of her said disabilities, and on February 2, 1909, plaintiff purchased certain lots near Bartlesville (referred to throughout the proceedings as the Gilkey lots), and that on May 15, 1909, she traded the lots to Hilderbrand for the land in question. The answer pleaded estoppel, laches, and that the action was not brought within one year after majority, and pleaded the one, two, and three year statutes of limitations. The answer also pleaded estoppel by reason of plaintiff's knowledge of operations on the lands by the defendants, and the expenditure of large sums of money in the development of the lands for oil and gas, the plaintiff standing by without objections from the time defendants purchased the land until a long time after the development and production of oil.
Plaintiff filed a reply, alleging that the proceedings conferring the rights of majority upon plaintiff were void, for the reason that the court was without jurisdiction to confer the rights of majority upon her. She denied the allegations of laches. She admits the purchase of the Gilkey lots, and alleges that she paid $300 for said lots, which sum she says was "proceeds from her individual allotment set aside to her as a Cherokee minor," admits that she exchanged the lots for the Hilderbrand land, but says that she paid an additional consideration of $250 cash which she says was also derived from her allotment.
Upon these pleadings the case went to trial, and at the close of plaintiff's evidence demurrer thereto, interposed by defendants, was sustained by the court. The case was brought to this court, and the judgment of the trial court was reversed; this court holding that plaintiff's evidence upon the mortgage question was sufficient to withstand a demurrer. 76 Okl. 192, 181 P. 715. Upon rehearing the original opinion was modified, the court still holding that as against a demurrer to the evidence, the proof was sufficient upon the mortgage question, and that the...
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