Byrd v. McKoy
| Decision Date | 28 June 1938 |
| Docket Number | 27241. |
| Citation | 81 P.2d 315,183 Okla. 209,1938 OK 429 |
| Parties | BYRD v. McKOY. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. In an action of purely equitable cognizance the findings of fact by the trial court will not be disturbed, unless the same are contrary to the clear weight of the evidence.
2. A complaining party has the burden of showing the prejudicial effect of testimony erroneously excluded, where such prejudice is not apparent on the face of the record.
3. A judgment will not be set aside or new trial granted on appeal for the improper rejection of evidence, unless it appears from the entire record that the error complained of has probably resulted in a miscarriage of justice, or constituted a substantial violation of a constitutional or statutory right.
Appeal from District Court, Pontotoc County; Tal Crawford, Judge.
Suit by Fleeta Lee Byrd against Z. K. McKoy and others to cancel a certain deed executed by Johnson Byrd, deceased, and for cancellation of various conveyances, oil and gas leases, and assignments, and for rents and profits and an accounting wherein Ruby Byrd intervened. From a judgment for the defendants, the plaintiff and intervener appeal.
Judgment affirmed.
Roy H Ball, Clay M. Roper, and John D. Chappelle, all of Oklahoma City, for plaintiff in error.
Denver N. Davison, of Oklahoma City, and Robert Wimbish and Robert J. Wimbish, both of Ada, for defendant in error Z. K. McKoy.
W. P. Z. German, Alvin F. Molony, Wm. F. Pielsticker, and Robert M. Turpin, all of Tulsa, for defendant in error Skelly Oil Co.
L. H. Harrell and A. M. Kerr, both of Ada, for defendants in error H. L. Wirick, Fleetborn Oil Corporation, Sam S. Miller, M. T. Townsend, R. W. Simpson, W. A. Delaney, Jr., B. C. King, and R. W. Simpson, Jr.
This suit was instituted in the district court of Pontotoc county by Fleeta Lee Byrd, plaintiff, against Z. K. McKoy, and several others, defendants. The suit was filed on the 10th day of October, 1934, seeking to cancel a certain deed executed in September, 1931, by Johnson Byrd, now deceased, to defendant, Z. K. McKoy; and for cancellation of various conveyances, oil and gas leases, and assignments, all based on said deed, and for rents and profits and an accounting. Prior to the trial of the case Ruby Byrd intervened. The original deed under attack conveyed to McKoy an undivided 1/5th interest in 160 acres of land, which land was the homestead allotment of Emma Byrd Reed, a full-blood Chickasaw Indian, the mother of Johnson Byrd, a full-blood Chickasaw Indian. The deed was approved by the Judge of the County Court having jurisdiction of the settlement of the estate of Emma Byrd Reed, who died in December, 1917. The plaintiff contends that the deed to defendant, McKoy, was void upon the following contentions of fact and law, viz.:
That the deed was obtained by fraud and for inadequate consideration; that Johnson Byrd was an habitual drunkard, and was intoxicated at the time he executed the deed, and was mentally incapable of such a business transaction; that the land in question was in fact the family homestead of Johnson Byrd and his wife, the plaintiff, and that the deed was not signed by the wife and therefore as a matter of law was invalid as against the wife.
Upon the trial of the cause judgment was rendered in favor of the defendant. On the appeal the plaintiff and intervener contend for reversal upon the grounds that the findings of fact are not supported by the evidence and are contrary to the clear weight of the evidence; and that reversible errors of law occurred at the trial.
The transaction was closed in the office of the County Judge who checked into the matter and discussed it with the grantor and interrogated him about it. A few days before the deed was executed the grantor discussed it with the County Judge, and the United States Probate Attorney was also present and discussed it with the grantor and interrogated him about it. There was evidence from which the trial court might have concluded that the grantor's interest was worth some more than the consideration, but there was also evidence justifying the reasonableness of the consideration paid. It is a strong circumstance that both the County Judge and the Probate Attorney deemed the consideration reasonably adequate. There was evidence tending to show that Johnson Byrd was an habitual drunkard and had been drinking when he signed the deed, and there was evidence tending to show the contrary, but there was no evidence that he was intoxicated at the time the transaction was closed and the deed delivered in the presence of the County Judge, or when he discussed the matter with the County Judge and the Probate Attorney a day or two before the deed was executed and the transaction was closed. Upon...
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