Brook v. Wertz
| Decision Date | 24 October 1916 |
| Docket Number | 5163. |
| Citation | 160 P. 903,61 Okla. 238,1916 OK 894 |
| Parties | BROOK ET AL. v. WERTZ ET AL. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Nov. 14, 1916.
Syllabus by the Court.
Under section 4696, Rev. Laws 1910, it was not error for the court to make Brook & Brook parties defendant in this action.
Where a purchaser in good faith at a void guardian's sale pays the purchase price thereof to the guardian, the said guardian holds the same as a trust fund for the use and benefit of the purchaser, and where the title to said property, fails on account of the proceedings being void, it is the duty of the guardian to refund the money to the purchaser. And any party with knowledge of the trust receiving any part thereof acquires no title to said fund as against the true owner, and an action to recover the same in favor of the true owner will lie against the party to whom said fund was transferred contrary to the trust.
Commissioners' Opinion, Division No. 3. Error from District Court, Wagoner County; R. C. Allen, Judge.
Action by Tooka Apueka against the Walton Trust Company and others and Eck E. Brook and another, doing business under the firm name of Brook & Brook, were brought in as parties defendant. From an adverse judgment, defendants Brook & Brook bring error. Affirmed.
Brook & Brook, of Muskogee, for plaintiffs in error.
Rittenhouse & Drake and Watts & Watts, all of Wagoner, and Furry & Motter and Jay P. Farnsworth, all of Muskogee, for defendants in error.
On the 23d day of March, 1912, Tooka Apeuka instituted a suit in the district court of Wagoner county against the Walton Trust Company, B. F. Wertz, and J. P. Farnsworth, and in her petition filed in said action she alleged that she was a full-blood Creek Indian, regularly enrolled upon the approved rolls of the Creek Tribe of Indians and that she was the owner of the real estate involved here, but that the same was in the unlawful possession of the defendants above named, and she further alleged that said defendants claim an interest in and to said lands which constitutes a cloud upon her title and in said action she sought judgment for the price of the lands, and that the defendants be required to deraign their title and to make profert thereof, and that she be restored to the possession of said property, and that said defendants and each of them, be barred from asserting any title, claim right, or interest in said property adverse to plaintiff.
Said defendants filed an answer in which they denied that plaintiff was the owner of said property, and said that on the 23d day of April, 1906, the plaintiff was a minor of the age of 12 years, and that by a judgment of the proper court one Daniel B. Childers was appointed her guardian, and he thereupon executed a bond and qualified as required by law, and that on the 1st day of June, 1911, her guardian filed a petition in the county court of Wagoner county, Okl., said court having jurisdiction of the guardianship cause of the plaintiff, asking for a sale of the real estate involved here, and that thereafter, on the 3d day of July, 1911, the county court of Wagoner county made an order directing the guardian to sell said real estate, and that, in pursuance to said order of sale and the proper proceedings had thereunder, the said Daniel B. Childers, as guardian of the plaintiff, sold said real estate to one B. F. Wertz for the sum of $7,700, which sale was afterwards confirmed, and a deed made by the guardian to the purchaser therefor, and that thereupon the said B. F. Wertz entered into possession of said property, and claimed the same adversely in fee simple from that time until the institution of said suit; that the said B. F. Wertz paid to the said guardian of the plaintiff the sum of $7,700 as the purchase price for said land, and that in order so to do he borrowed from the Walton Trust Company the sum of $5,700, to secure which he executed a mortgage upon said property, and he likewise borrowed from J. P. Farnsworth the sum of $2,000, and in order to secure the payment thereof he executed a mortgage upon this property; that no part of said mortgaged indebtedness had been repaid to said mortgagees, and it is further alleged that said money was in the possession of the guardian and under his control, and thereupon said defendants asked the court that said guardian and his bondsmen be made parties defendant to this action, and that said guardian be required to pay said money into court to await the decision of the court, and it further appears that the court did make said guardian and his bondsmen parties defendant, and that a receiver was appointed by the court to take charge of the real estate involved here, and also to take charge of the money in the hands of the guardian, in order to preserve the same pending a decision of this cause. It further appeared that $770 of this money paid by B. F. Wertz to the guardian had under an order of the county court been paid to Brook & Brook, attorneys for the guardian in the proceeding for the sale of said property, and the aforesaid defendants requested the court that Brook & Brook be made parties to this action, and that they be required to pay the money in their hands into court, in order that the receiver might take charge of the same to await the final action of the court. And thereupon, said Brook & Brook were made parties to this case. Thereupon the plaintiff filed a reply in which she stated that at the time said application was filed in the county court of Wagoner county asking for a sale of her property she was of age, and that all of the proceedings had in said cause from that time on were void and of no force, for the reason that she was not a minor. Upon the trial of said cause the parties thereto entered into an agreed statement of facts, which were substantially as alleged above, together with the agreed stipulation that the plaintiff below nor no one for her ever received the portion of the purchase price for said land as above stipulated, and it was further stipulated that at the time the order was made in the county court of Wagoner county for a sale of plaintiff's property she was of age, and not a minor. Thereupon the court rendered a judgment in favor of the plaintiff, restoring to her the possession of all of said land free and clear from all incumbrances, and directed that the mortgagees be returned their money, and further rendered a judgment in favor of B. F. Wertz against Brook & Brook for the sum of $770, being the money paid by Childers to Brook & Brook, for legal services in said action; they having declined to pay the money to the receiver herein. To reverse this judgment Brook & Brook have appealed to this court.
It is contended by the plaintiffs in error that no contractual relation existed between them and B. F. Wertz, the purchaser of said property, that they, Brook & Brook, received this money as compensation for services rendered Childers as guardian of the plaintiff, and that, if the same was unlawfully paid to them, the purchaser, B. F. Wertz, is not entitled to recover or to maintain an action against them therefor, and that only the guardian, if any one, could maintain an action against them for matters arising therefrom; while the defendants in error contend that this $7,700 was paid by B. F. Wertz, the purchaser at said guardian sale, into court for a specific purpose, and that purpose was the purchase price of the property of the supposed ward, the plaintiff here. The title to said property having failed, the purpose of the trust cannot be...
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