Baker v. Cureton
| Decision Date | 27 July 1915 |
| Docket Number | 6350. |
| Citation | 150 P. 1090,49 Okla. 15 |
| Parties | BAKER v. CURETON. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
In a cross-action to quiet title, where it is shown on the face of the record of the county court, introduced in evidence in support of a guardian's deed relied on to vest title in defendant, that, inasmuch as the minor appeared in open court and testified that he was 18 years old, and that his father and mother were dead, no notice was given by the judge to any one before making the appointment of a guardian nominated by the minor, assuming that such notice was required to be given by Rev. Laws 1910, § 6522, as a condition precedent to vest the county court with jurisdiction to make the appointment held, the county court being a court of general jurisdiction as to probate matters, we will presume from the fact of the appointment that the court heard further evidence, and at that time found the fact to be that the minor was in the care of no one and had no relatives residing in the county, and hence there was no one to whom the judge could give the notice prescribed by said section, and that said appointment was good. And held, further, that the record of the county court cannot be collaterally attacked by evidence aliunde that the minor was at the time in the care of some one and had relatives residing in the county.
Where a minor above the age of 14 years nominates his own guardian it is the duty of the county court to satisfy itself of every fact necessary to vest the court with jurisdiction to make the appointment, and, if the court makes the appointment, the presumption is that he heard the evidence and found every fact to justify the appointment, and unless the contrary appears on the face of the record, the proceedings of the court cannot be collaterally attacked on that ground.
As by Rev. Laws 1910, § 3333, a special guardian has power over the property of his ward "unless otherwise ordered," it seems that such guardian has power to sell the land of his ward pursuant to an order of the county court.
Where from an order of sale a notice of appeal and bond are filed but no affidavit as required by Rev. Laws 1910, § 6503 held, that such affidavit filed by an applicant for appeal from the decision of the county court ordering a guardian's sale of land is a prerequisite to the granting of an appeal and essential, not only to the jurisdiction of the court allowing it, but to confer jurisdiction thereof on the district court.
Error from District Court, Wagoner County; R. P. De Graffenried, Judge.
Action by Earl Baker against Otis R. Cureton, with cross-petition by defendant. Judgment for defendant, and plaintiff brings error. Affirmed.
B. B. Blakeney and J. H. Maxey, Jr., both of Muskogee, for plaintiff in error.
John B. Campbell, of Muskogee, and Wm. O. Beall, of Bristow, for defendant in error.
On February 27, 1913, Earl Baker, plaintiff in error, in the district court of Wagoner county sued Otis R. Cureton, defendant in error, to clear his title to the northwest quarter of the northwest quarter of section 36, township 18, range 15 east, in Wagoner county, alleging himself to be in possession and the owner thereof in fee. For answer defendant made general denial, and by way of cross-petition alleged that he was the owner in fee and in possession of the land, set up the various deeds of record under which he claimed, and prayed that his title thereto be cleared. There was trial to the court and judgment for defendant as prayed, and plaintiff brings the case here. Both sides allege the land to have been the homestead allotment of one Doctor Ballard, a Cherokee freedman, and concede that he reached his majority September 1, 1911. Plaintiff deraigned his title by warranty deed from Ballard purporting to convey the land to W. E. McIntosh, made, executed, and delivered September 1, 1911, a deed from McIntosh made executed and delivered the same day, purporting to convey the land to Ollie M. Baker, and a deed from the latter made, executed, and delivered, purporting to convey the land to plaintiff, dated January 16, 1913.
Defendant based his title upon a guardian's deed made, executed, and delivered to him August 30, 1911, by Joseph C. Casaver, as guardian of the estate of said Ballard, pursuant to proceedings in the county court of Wagoner county. Whether plaintiff should of right prevailed, as he did, turns upon the validity of said deed. It is assigned by plaintiff that said deed is void because, he says, the records of the county court introduced in evidence in support thereof show on their face that no valid appointment of a guardian for Ballard was ever made. Of course, if the records of that court disclose that the court had no jurisdiction to make the appointment complained of, the order of appointment is void on its face, and the subsequent sale and guardian's deed passed no title to the land. On this point the record discloses that on October 7, 1908, at which time Ballard was a minor over the age of 14 years, there was filed in the county court of Wagoner county the following:
State of Oklahoma, Wagoner County--ss.:
And thereafter this order:
Pursuant to which letters of guardianship thereafter duly issued to said Hawkins, which, plaintiff says, because it thus appears upon the face of the record that they were issued without notice, said appointment was void for want of jurisdiction in the court to make it. In support of his contention that such notice was necessary to vest the court with jurisdiction to make the appointment he relies on Rev. Laws 1910, § 6522. It reads:
It seems, as this appointment was made on the petition of Hawkins, that the point is well taken, and that the notice contended for was required by the statute. But let that be as it may, assuming that it was necessary to its validity that the judge gave notice of the appointment of Hawkins "to any person having the care of Ballard" and "to such relatives of the minor residing in the county as the judge may deem proper," while it might be said from the face of the record that no such notice was given, can we not indulge the presumption from the fact of the appointment that the court heard evidence and found every fact necessary to justify the appointment? In other words, the county court of Wagoner county being a court of general jurisdiction as to probate matters (Eaves v. Mullen, 25 Okl. 679, 107 P. 433), and its records entitled to have accorded them the effect and legal presumption in favor of the validity of the appointment, it not appearing on the face of the record that Ballard had relatives residing in the county or was in the care of any one, can we not presume that, his father and mother being dead, he was in the care of no one and had no relatives living in the county, and that hence there was no one to whom the judge could give the notice prescribed by said section? We can and will; and hold that the record...
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