Bradburn v. McIntosh

• Decision Date: 04 February 1947
• Docket Number: No. 3299.,3299.
• Citation: 159 F.2d 925
• Parties: BRADBURN v. McINTOSH et al.
• Court: U.S. Court of Appeals — Tenth Circuit

159 F.2d 925 (1947)

BRADBURN v. McINTOSH et al.

No. 3299.

Circuit Court of Appeals, Tenth Circuit.

February 4, 1947.

COPYRIGHT MATERIAL OMITTED

Creekmore Wallace and Don Anderson, both of Oklahoma City, Okl. (B. E. Harkey, of Oklahoma City, Okl., on the briefs), for appellant.

Alfred Stevenson, of Holdenville, Okl., and Charles Champion, of Tulsa, Okl., for appellees.

R. A. Hockensmith, of Okmulgee, Okl., on the brief for Wilbur C. McIntosh and Mamie T. McIntosh.

Charles P. Gotwals, of Tulsa, Okl., and Wm. A. Killey and James D. Gibson, both of Muskogee, Okl., on the brief for The First Nat. Bank of Muskogee, Okl.

Before PHILLIPS and MURRAH, Circuit Judges, and BROADDUS, District Judge.

PHILLIPS, Circuit Judge.

Nancy Bradburn is a full-blood Creek Indian enrolled opposite Number 4973. She is the daughter of Cussehta Yarhola and the sister of Lessey Yarhola Hawkins Chisholm. Nancy was formerly married to William Severs.

On December 15, 1914, H. B. Seddicum, a government farmer, and a friend of Nancy, filed a petition under 58 Okl.St.Ann. § 851 in the County Court of Okfuskee County, Oklahoma, for the appointment of a guardian of Nancy on the ground that she was an incompetent. On January 12, 1915, the County Court found that Nancy had a large estate, that she had no business experience, was unable to count money, did not know the number of days in a week nor the number of weeks in a month, and was incapable of handling her estate, and entered its order appointing Fred L. Strough guardian of Nancy's person and estate. On January 29, 1923, the County Court appointed H. C. Skinner co-guardian of Nancy's person and estate.

On August 18, 1921, Strough, as guardian, loaned $15,000 of Nancy's funds to Wilbur C. and Mamie T. McIntosh. To evidence such loan, the McIntoshes executed and delivered to Strough, as guardian, their promissory note for $15,000, bearing interest at 7 per cent per annum, dated August 18, 1921, due August 18, 1926, and to secure such note, executed and delivered to Strough, as guardian, a mortgage on certain real property situated in Okemah, Okfuskee County, Oklahoma. The loan was duly approved by the County Court of Okfuskee County.

Thereafter, Strough resigned as guardian and endorsed the note without recourse to Skinner, as guardian.

On December 24, 1915, Nancy filed a petition in the County Court of Okfuskee County in which she alleged that she was not an incompetent, and that if she had at any time been an incompetent, which she denied, she had been fully restored to capacity and was fully able, competent, and capable of attending to her own affairs and selecting and designating her agents and representatives, and that she fully understood the nature of the proceeding. The petition came on for hearing on January 19, 1916. Nancy appeared in person and by counsel, and Strough, as guardian, appeared by counsel. After hearing evidence, the County Court denied the petition by order entered January 29, 1916. On appeal, that order was affirmed by the District Court of Okfuskee County, Oklahoma, by order entered February 15, 1916. On appeal, the order of the District Court was affirmed by the Supreme Court of Oklahoma.

On January 10, 1923, Nancy and her husband, William Severs, filed a petition in the County Court of Okfuskee County to have Nancy restored to capacity. The petition came on for hearing on January 26, 1923. Nancy appeared in person and by counsel, and Strough, as guardian, appeared in person and by counsel. W. E. McKinney, a protestant, appeared by counsel. After the hearing, the petition was voluntarily dismissed by the petitioners.

On June 14, 1924, Nancy and her husband, William Severs, filed a petition in the County Court of Okfuskee County, seeking Nancy's restoration to capacity. In the petition, they alleged that since the appointment of her guardian, she had matured and had gained experience, knowledge, and information enabling her to thoroughly protect and care for her estate without the intervention of a guardian, and that she was entirely competent. On the same day, counsel for petitioners, Nancy and William Severs, filed an application in which they alleged that they did not believe that the county judge could fairly and impartially try the issues on the petition for restoration to capacity. On the same day, the county judge filed a written certificate reciting in part as follows: "* * * I, William L. Seawell, * * * do hereby certify my complete disqualification to hear and determine the issues presented" in such petition. On the same day, counsel for Nancy and William Severs and counsel for Skinner, as guardian, entered into and filed a written stipulation agreeing that E. Huser, a member of the Oklahoma State Bar and a practicing attorney, should act as special county judge to hear and determine the issues presented by the petition. On the same day, E. Huser took and filed a written oath as special county judge and proceeded to hear the petition. At the hearing, Nancy and William Severs appeared in person and by counsel. Skinner, as guardian, appeared in person and by counsel. Strough had theretofore resigned as guardian of Nancy. Cussehta Yarhola, Nancy's father, appeared in person. All parties announced they were ready for trial. The court proceeded to hear evidence, and thereupon found that Cussehta Yarhola is the father of Nancy, that the mother of Nancy has been dead for many years, that William Severs is the husband of Nancy, that Nancy and William Severs are residents of Okfuskee County, that Nancy was theretofore adjudged incompetent by the County Court of Okfuskee County, that Nancy is now entirely sane and in all respects competent to manage and control her own estate, that Skinner, as guardian, has in his hands notes, cash, and other personal property belonging to Nancy, and entered an order adjudging Nancy to be sane and competent, and discharging the guardian, and directing him to deliver to Nancy all property of whatever description belonging to her in his hands as guardian.

After the order restoring Nancy to capacity was entered, and on June 14, 1924, Skinner endorsed and delivered the McIntosh note to Nancy and assigned and delivered the McIntosh mortgage to Nancy. Thereafter, on the same day, Nancy endorsed the note to House or order and assigned the mortgage to House. On July 9, 1924, House endorsed the McIntosh note to The First National Bank of Muskogee, Oklahoma,¹ and assigned the mortgage to the bank.

The bank acquired the note before maturity, for value, and in good faith. The note had not been previously dishonored. It was complete and regular on its face. The bank had no notice of any defect or infirmity in House's title thereto.

House and Nancy had entered into a contract under which she agreed to pay him 10 per cent of her estate if he succeeded in having her restored to capacity. The note was endorsed and delivered by Nancy to House, in payment for House's services in having her restored to capacity.

The McIntoshes paid the first two instalments of interest on the note to Nancy's guardian. On August 17, 1924, the McIntoshes paid the third instalment to the bank. On November 22, 1924, they paid the note in full. The McIntoshes had no notice of any defect or infirmity in House's title or the bank's title to the note. The bank marked the note paid and executed a release of the mortgage.

On September 22, 1942, Nancy, by Sukey Jenkins, her daughter and next friend, brought this action against the McIntoshes, the bank, and House. Nancy sought a decree vacating the order restoring her to capacity, canceling the transfers and assignments of the note and mortgage, and awarding her judgment on the note for the principal amount thereof, interest thereon from its date at 7 per cent per annum, and 10 per cent of the principal and interest as attorney's fees, and for the foreclosure of the mortgage.

As grounds for the relief sought, Nancy alleged that the proceeding in the County Court commenced on June 14, 1924, and the order entered therein restoring her to capacity are void; that she is incompetent in fact; and that House, the McIntoshes, and the bank entered into a scheme to cheat and defraud her and brought about the transfers and assignments of the note and mortgage through fraud and deceit.

The trial court found that Nancy was competent in fact on and after June 14, 1924; that the evidence wholly failed to establish the alleged fraud; that the bank was a holder of the note in due course; and that the funds with which the loan was made were unrestricted. From a judgment for the McIntoshes dismissing the action, Nancy has appealed.

At the trial, J. R. Preston, a physician and surgeon, testified that he located in Weleetka, Oklahoma, in January, 1918; that he had known Nancy for 28 years; that he became her family physician shortly after he located at Weleetka; that he had been in her home frequently; that Nancy was a good housekeeper and a good cook; that he had eaten meals at her home; that she was clean and dressed neatly; that she was able to converse with him in the English language; that when she paid her bills she knew the number of calls he had made at her home and the charge for each call; that she was able to count change; that, in his opinion, she was a woman of average intelligence; and that he believed she would understand the meaning and effect of a deed, oil lease, contract, mortgage, or note if the same were fully interpreted to her.

Ruby Hendrix testified that she lived in Weleetka; that she conducted a ladies' ready-to-wear business there from 1925 to 1931; that thereafter she was employed in the ladies' ready-to-wear department of a store known as Brown Trading; that she had known Nancy since 1925; that Nancy was a customer of hers; that Nancy purchased staple merchandise; that on one occasion she accompanied Nancy to Dallas to purchase merchandise; that Nancy was a good judge of the value and quality of...