Burkhard v. Burkhard

• Court: U.S. Court of Appeals — Tenth Circuit
• Writing for the Court: PHILLIPS, , and BRATTON and HUXMAN, Circuit
• Citation: Burkhard v. Burkhard, 175 F.2d 593 (10th Cir. 1949)
• Decision Date: 19 August 1949
• Docket Number: No. 3799.,3799.
• Parties: BURKHARD v. BURKHARD et al.

175 F.2d 593 (1948)

BURKHARD v. BURKHARD et al.

No. 3799.

United States Court of Appeals Tenth Circuit.

July 5, 1948.

Rehearing Denied August 19, 1949.

A. J. Kriete, Tulsa, Okl. (Arch K. Kriete, Tulsa, Okl., on the brief), for appellant.

Milton W. Hardy, Tulsa, Okl. (Summers Hardy, Tulsa, Okl., on the brief), for appellees.

Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges.

HUXMAN, Circuit Judge.

This was an action by Bernard B. Burkhard against Adeline Dix Burkhard and John S. Burkhard, Jr., to recover possession of and to quiet title to a house and lot in Tulsa, Oklahoma, known as 1208 South Indian. Leo V. Burkhard, nee Rumble, and Yvonne Tanner came into the action and aligned themselves with plaintiff, Bernard B. Burkhard. O. G. Tanner also came into the action and asked for an equitable lien against the property for the sum of $865.12 expended by him for funeral expenses for John S. Burkhard. Leo Rumble was the wife of John S. Burkhard during his lifetime, Bernard and Yvonne were his children, and O. G. Tanner was his son-in-law, husband of Yvonne.

In the fall of 1931, Leo gave a house located on land condemned by the City of Tulsa to Bernard. He purchased the lot at 1208 South Indian with $250.00 which he had. He borrowed approximately $1600.00 from his Father, John, and used it in moving the house thereon and fixing it up. A deed to the lot was executed to Bernard on October 24, 1931, and was recorded. It was agreed between John and Bernard that John was to collect the rents and pay the taxes and expenses against the property until his $1600.00 was repaid. In the early part of 1933, John advised Bernard that he had found a purchaser for the property. He sold it to one Cluck. On January 6, 1933, Cluck executed a note and mortgage to John for $3,150.00. On the same day Bernard executed and delivered a warranty deed to the property to John. This deed was never placed of record. No consideration was received from John for the deed. Bernard contemplated moving to California and the deed was executed to enable John to take care of the property and to execute a deed to the property if the property was sold and the sale was completed. John agreed to destroy the deed in case the contemplated purchaser did not complete the payments for the purchase of the property. The sale to Cluck was not completed. He moved out of the property and John began renting it to various tenants in the fall of 1933 and continuing until the latter part of 1937, when he and Adeline Dix moved into the property. The rent collected during this time was retained by John, Bernard having in the meantime moved to California. Defendant Adeline Dix Burkhard has since remained in possession of the property. John died in 1947. Bernard then, for the first time, returned to Tulsa, found Adeline in possession of the property, and instituted this action in the Northern District of Oklahoma for possession and to quiet his title against her and her minor son, John S. Burkhard, Jr. In his complaint he alleged that he was the owner of the legal estate in fee simple and the equitable estate in and to the property, that the appellees, Adeline and John S. Burkhard, Jr., were in possession claiming adversely to him and refusing to surrender possession, and that they were without right to possession of the property.

Numerous defenses were set up by Adeline and her minor son, John S. Burkhard, Jr., only one of which is necessary to note because it was the one on which the case was tried and disposed of. Adeline alleged in substance that John and she entered into an oral agreement in which it was agreed that she would help him care for and maintain the South Indian property and other property belonging to him; that she would render personal services to him in return for which she and her children, including her minor son, John S. Burkhard, Jr., should receive the property in question; that she performed her part of the contract; that she had no knowledge of the claim or interest of Bernard in the property, or notice of facts which upon inquiry would have given her such knowledge.

The cause was tried as an equitable action with a jury being employed in an advisory capacity. The court limited the issues in the trial, concerning itself only with the question relating to the oral contract, and did not pass upon any of the other asserted claims by Adeline.

The jury, in answer to interrogatories, found:

1. That the deed of Bernard B. Burkhard to his father, John, was not for the purpose of convenience and to allow his father, John, to complete a sale of the property, but rather was intended by the parties as a transfer of title to the property;

2. That John held himself out to be the owner of the property in question to Adeline Dix and exhibited to her a deed to the property from his son Bernard;

3. That Adeline Dix relied upon such holding out;

4. That John entered into an agreement that Adeline was to help care for and maintain this and other property, and render personal services to him, for which she was to receive the property;

5. That Adeline Dix did not have knowledge or notice of the claim or interest of Bernard Burkhard or notice of such facts that upon inquiry would have given her such knowledge;

6. That Adeline performed the services and other matters agreed upon during the lifetime of John S. Burkhard.

The trial court set aside the jury's first finding and found the facts established by clear and convincing evidence to be that John held the property in trust for his son, Bernard. The trial court, however, approved the remaining findings by the jury, adopted them as its own findings, and concluded as a matter of law that Bernard had clothed his father, John, with apparent title to the property and had thus estopped himself to deny such title or authority as against a third person, Adeline, who acted in good faith in her dealings with John, and without knowledge of the true ownership. Judgment was accordingly entered that Bernard Burkhard, the appellant, and the intervenors take nothing as against Adeline and John S. Burkhard, Jr., and that the title to the premises be quieted in Adeline and John S. Burkhard, Jr., as against all claims by appellant or the intervenors and those claiming under them. From this judgment appellant, Bernard Burkhard, appeals.

It is first asserted that Adeline waived her right to a trial by jury and that since she pleaded equitable issues she was not entitled to a trial by jury and that the court thus erred in allowing a jury trial. It is not necessary to decide whether...