Balbridge v. Smith

Decision Date23 September 1919
Docket NumberCase Number: 6690
Citation184 P. 153,1919 OK 264,76 Okla. 36
PartiesBALBRIDGE et al. v. SMITH et al.
CourtOklahoma Supreme Court
Syllabus

¶0 1. Guardian and Ward--Administrators--Sales--Appeal--Quieting Title.

A purchaser at an administrator's or guardian's sale cannot maintain an action to quiet title, and thereby attempt to indirectly defeat the right of appeal of minors, especially where the effect of it is merely to subject the same parties to repeated litigation over the same subject-matter.

2.Judgment--Vacation--Jurisdiction--Fraud.

The district courts of this state, in exercising their equitable jurisdiction, have power to vacate and annul orders or judgments of other courts in a proceeding brought for that purpose for fraud in inducing or entering into such order or judgment, where such fraud is extraneous to the issues in the proceeding attacked, and especially where the court has been imposed upon by such fraud.

3.Infants--Guardian ad Litem--Necessity For.

Under section 4957, Mansfield's Digest, the failure to appoint a guardian ad litem for an infant defendant when properly served is not such a jurisdictional defect as will render the judgment void, but at most it is voidable, and hence the judgment remains in full force and effect until it is reversed on appeal or error or set aside by direct proceedings, but is not subject to collateral attack.

4. Executors and Administrators--Sales--Confirmation--Vacation of Judgment.

The evidence has been examined and held, that is sufficient to warrant the court in the exercise of its equitable powers to cancel deed made by the administrator to certain lands, and to annul the order of the county court confirming the same. $ 100.

Error from District Court, Wagoner County; Fred P. Branson, Judge.

Action by Nathan W. Smith against Hiram Smith and others. From judgment for defendants, the substituted plaintiffs bring error. Reversed in part and affirmed in part.

Jess W. Watts, Charles G. Watts, and Alvin F. Molony, for plaintiffs in error.

Bailey, Wyand & Moon, for defendants in error.

McNEILL, J.

¶1 This action was commenced on the 15th day of June, 1911, in the district court of Wagoner county by Nathan W. Smith (who after the commencement of the action died and the same has been revived in the name of his administrator and his heirs) against Hiram Smith and Beulah Smith and Frank Smith, minors, and their guardian, W. D. Fly, as defendants. After the commencement of the action, but before judgment. Hiram Smith died, leaving as his heirs the defendants Frank Smith and Beulah Smith, and prior to the trial of the case Beulah Smith became of age and refused to prosecute, leaving the issues to be tried between Frank Smith, a minor, and the plaintiff. Nathan W. Smith. Said action was brought to quiet title in Nathan W. Smith to lots 9 and 11 in block 340 and block 512, all in the town of Wagoner, Oklahoma.

¶2 The defendant, Frank Smith, through her guardian, filed an answer and cross-petition alleging that she was the owner of a one-half interest in said property. She further alleged she was the child of Frank Smith and Kittie E. Smith. That Frank Smith, her father, died March, 1899, and her mother died February, 1901. That all of said land was the property of her father and mother, and after the death of her mother the patents to said land were issued to the heirs of Kittie E. Smith. That prior to the time of issuing the patent, Nathan W. Smith was appointed administrator of the estate of Kittie E. Smith and by certain fraudulent acts and transactions sold all of block 512 and one-half interest of lots 9 and 11, block 340, by proceeding in the United States Probate Court, sitting at Wagoner, while he was administrator, but that said sale was fraudulent, and she asked to have the administrator's deed and the order confirming the sale of said property set aside and held for naught. She further alleges that there was a conspiracy existing between Andeline J. Smith, the mother of the plaintiff herein, and the plaintiff whereby he allowed a large indebtedness purporting to be owing to said Andeline J. Smith against said estate for the purpose of selling and disposing of said property. That thereafter Andeline J. Smith filed suit in the United States District Court of Wagoner wherein she brought suit against the defendant to complete the title to said premises in Andeline J. Smith, and that the same was a part of the original fraud entered into between Andeline J. Smith and Nathan W. Smith to cheat the defendant out of her property, and she asked that said judgment in the United States District Court be set aside and held for naught. She further alleges that after the plaintiff, as administrator and as guardian of said estate, sold the premises to Andeline J. Smith and when the title was perfected in Andeline J. Smith, she reconveyed the same to Nathan W. Smith. The plaintiff answered denying all of said facts, and setting up the different records in the United States Probate Court and the judgment in the United States District Court. Upon the trial of the case, the court found the issues in favor of the defendant on her cross-petition, and against the plaintiff, and made certain findings of fact, the material ones being as follows: That Hiram Smith, and defendants, Frank Smith and Beulah Smith, are the children and only heirs at law of F. E. Smith, who departed this life in March, 1899, and Kittie E. Smith, his wife, who departed this life February 4, 1901. That lots 9 and 11, block 340, in the city of Wagoner, being a part of the land involved in this suit, were scheduled to Ernest E. Smith and Nathan W. Smith, administrator of the estate of Kittie E. Smith, deceased, on the 23rd day of August, 1901. That block 512 of said city, the remainder of the property involved in this suit, was scheduled to Nathan W. Smith, administrator of the estate of Kittie E. Smith, deceased, on the 23rd day of August, 1901, all of which schedules were approved by the town site commission.

¶3 On the 7th day of June, 1904, a patent was issued conveying to the heirs of said Kittie E. Smith, deceased, lot 9, in block 340, city of Wagoner, which was approved by the Secretary of Interior February 2, 1905, and filed for record the 13th day of February, 1905. That on October 15, 1904, a patent was issued conveying to the heirs of Kittie E. Smith, lot 11, block 340, which was also approved by the Secretary of Interior. The court further found that Hiram Smith after the institution of this suit died intestate, and left as his only heirs, the defendants, Frank Smith and Beulah Smith, and that Beulah Smith is now of age, and is not prosecuting her suit, and by reason of her not prosecuting the same, the court held that Nathan W. Smith was the owner of an undivided one-half interest in all of said property, being the interest that she would have inherited. The court further found that the plaintiff, Nathan W. Smith, who was a brother of the father of these children in this action, was appointed administrator of the estate of Kittie E. Smith, deceased, and guardian of the three minor children. The court further found that pursuant to the order of the United States District Court of the Northern District of Indian Territory sitting at Wagoner, Nathan W. Smith, as administrator of the estate of Kittie E. Smith, undertook to sell au undivided one-half interest in lots 9 and 11, block 340, and all of block 512; that at the sale Andeline J. Smith bid in said property and the sale was confirmed in Andeline J. Smith on August 2, 1904. The court further found that Andeline J. Smith had reconveyed or sold all of said property to the plaintiff, Nathan W. Smith. The court further found that the sale by Nathan W. Smith, administrator, to Andeline J. Smith was fraudulent. The court further found that in the suit instituted in the United States District Court by Andeline J. Smith against Ernest Smith, Hiram Smith, Beulah Smith and Frank Smith, the latter two of whom were minors, the plaintiff, Nathan W. Smith. who was the guardian of said minors, failed to file any answer or make any defense in said action, and that no guardian ad litem was appointed, and by reason of said fact said decree was null and void as to the defendant Frank Smith. The court then rendered judgment in favor of Frank Smith against the plaintiff, Nathan W. Smith, for an undivided one-half interest in and to all of said property and judgment for certain rents and profits due therefrom. From said judgment, Nathan W. Smith has appealed and alleges eight separate and distinct assignments of error.

¶4 The first assignment of error is as follows:

"Under the facts in this case as disclosed by the record the plaintiff cannot maintain this action and his petition ought to be dismissed as against the defendant Frank Smith; neither can said defendant maintain her cross-action against the plaintiff and her cross-petition ought also to be dismissed; and the costs ought to be equally divided between the parties."

¶5 As to the first portion of the assignment No. 1, plaintiff in error admits that under the rule adopted in the case of Sawyer v. Ware, 36 Okla. 139, 128 P. 273:

The plaintiff has no standing in court to quiet title against the defendant and his action should be dismissed.

¶6 With this we agree; under the rule adopted in the above entitled case, plaintiff could not maintain his action to quiet title against the minors, to correct the probate proceedings, or prevent them from bringing a direct proceeding to set aside said proceedings on the ground of fraud or from appealing, during the time provided by statute.

¶7 Now the second proposition, that the defendant cannot maintain her cross-petition against the plaintiff, and her cross-petition ought to be dismissed. With this we cannot agree. The cross-petition of the defendant was a direct proceeding to set aside the order and judgment in the probate proceedings and also to set aside a...

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