Carter v. Oil

• Decision Date: 12 October 1915
• Docket Number: Case Number: 6386
• Citation: 1915 OK 770,58 Okla. 365,160 P. 319
• Parties: * CARTER v. PRAIRIE OIL & GAS CO. et al.
• Court: Oklahoma Supreme Court

1915 OK 770

160 P. 319

58 Okla. 365

* CARTER v. PRAIRIE OIL & GAS CO. et al.

Case Number: 6386

Supreme Court of Oklahoma

Decided: October 12, 1915

Syllabus

¶0 1. JURY--Suits in Equity--Quieting Title. A suit to clear title to 120 acres of land, part of her allotment, by a citizen of the Creek Nation, on the ground that her deed thereto was procured by fraud and was also executed in violation of section 19 of an act of Congress approved April 26, 1906 (chapter 1876, 34 Stat. 144) which provides: "And every deed executed before, or for the making of which a contract or agreement was entered into before the removal of restrictions, be and the same is hereby declared void"--is, pursuant to Rev. Laws 1910, sec. 4994, properly triable by the court, subject to its power to order any issue or issues of fact tried by a jury.

2. APPEAL AND ERROR--Presenting Questions in Trial Court--Mode of Trial. Where, without objection, such cause is tried to a jury and a general verdict returned upon which a judgment was rendered and entered by the court as in a suit at law, held, that such was error; but, being uncomplained of in the trial court, it is too late to complain of it here for the first time.

3. APPEAL AND ERROR--Disposition of Cause--Rendition of Judgment. Where such is the state of the record, this court on appeal will consider the whole record and weigh the evidence, and, where the same is uncontroverted, render, or cause to be rendered, such judgment as the trial court should have rendered.

4. INDIANS--Lands--Conveyances--Validity. A citizen of the Creek Nation received $ 300 of the recited consideration of $ 3,600, and on July 2, 1907, prior to the removal of her restrictions, made, executed and delivered a deed to a part of her allotment, void under section 19 of an act of Congress approved April 26, 1906. At the same time she took back from the grantees therein their two promissory notes, one for $ 1,700, payable August 9, 1907, the other for $ 1,600, payable August 9, 1908, and agreed to meet them at the same place on August 9, 1907, which she did. There on that day, her restrictions in the meantime being removed by operation of law, they took up both notes, paid her the note for $ 1,700, and took from her another deed for the same land, which recited the same consideration, and that $ 2,000 of it was that day cash in hand paid, and executed and delivered to her their note for $ 1,600, payable one year thereafter, Held, that, although executed at different times, both deeds were evidence of or part of one and the same transaction, and should be construed together; that, the first deed being void as in fraud of the statute, not only in that for the making of which an agreement was entered into before the removal of restrictions, but in that a part of the consideration of the first entered into the consideration for the second deed, the taint of illegality in that deed tainted the second, and that both are void. Held, further, that, being void, the subsequent purchaser of the land took no title.

5. CONTRACTS--"Agreement." An "agreement" is a coming together of parties in opinion or determination; the union of two or more minds in a thing done or to be done; a mutual assent to do a thing.

6. INDIANS--Lands--Restrictions an Alienation--"Transaction." As "transaction" is derived from the Latin words "trans," meaning across, and "agere," to drive, evidence examined, and held that the transaction here involved was putting, or driving, across the title to the land from plaintiff to the defendant grantees, and that the two deeds executed for that purpose were evidence of or part of that transaction, and should be construed together, not only to determine what the contract or agreement evidenced thereby was, but with what intent it was made.

* Appealed to tie Supreme Court of the United States.

Error from District Court, Creek County; Wade, S. Stanfield, Judge.

Action by Annie Carter against the Prairie Oil & Gas Company and others. Judgment for defendants, and plaintiff brings error. Reversed and remanded, with directions.

Kane, C. J., and Thacker, J., dissenting.

Fred M. Carter, Frank P. Smith, and Samuel W. Hayes, for plaintiff in error.

McDougal & Lytle, for defendants in error.

TURNER, J.

¶1 On January 4, 1914, in the district court of Creek county; Annie Carter, plaintiff in error, sued Senes W. Anthony, Charles H. Anthony, and Prairie Oil & Gas Company, defendants in error, to clear her title to 120 acres of land, her surplus allotment as a citizen of the Creek Nation, on the ground that a warranty deed, purporting to convey the same, made, executed, and delivered by her to the defendants Anthony, dated August 9, 1907, was: (1) Procured by fraud; and (2) was executed in violation of section 19 of an act of Congress, approved April 26, 1906, c. 1876 (34 Stat. at L. 144), which reads:

"And every deed executed before, or for the making Of which a contract or agreement was entered into before the removal of restrictions, be and the same is hereby declared void."

¶2 Aside from the allegations of fraud in procuring the deed, the petition, substantially states that, before the removal of her restrictions, she made, executed, and delivered to the defendants Anthony a warranty deed to the land in controversy, dated July 2, 1907, which, she says, was void and not susceptible of ratification, and that on August 9, 1907, she made, executed, and delivered to them another like deed, purporting to convey the same land, in violation of said statute; that said second deed was an attempted ratification of the prior deed, and was also void, although executed after the removal of her restrictions, by reason of the sixteenth section of the Supplemental Agreement (Act June 30, 1902, c. 1323, 32 Stat. 500). It was further alleged that the Prairie Oil & Gas Company claimed some interest in the land adverse to that of plaintiff. After the Anthonys had answered, in effect, a general denial, they admitted the execution and delivery of both deeds, but denied that the deed of August 9th was executed in fraud of the statute, and set up the same as an independent transaction for a valuable consideration, and not in ratification of the former deed, as charged. They alleged themselves to be the owner of the land, and for cross-relief prayed that their title thereto be quieted.

¶3 Prairie Oil & Gas Company for separate answer set up that they were purchasers of 40 acres of the land in good faith and for a valuable consideration, and deraigned title by mesne conveyances from the Anthonys, and, further, that since acquiring title thereto it had erected valuable and lasting improvements on the land, and taken therefrom vast quantities of oil, to the amount of more than $ 84,000, and for cross-relief prayed that its title to the 40 acres be quieted.

¶4 After issue joined by reply there was trial by a jury and a general verdict for defendants, upon which the court, without reviewing the evidence and reaching the same conclusion as the jury or making any findings of fact, rendered and entered judgment, and plaintiff brings the case here.

¶5 This being an action of purely equitable cognizance, the court erred in sending it to the jury and in entering judgment upon the verdict as in a common-law action. Apache State Bank v. Daniels, 32 Okla. 121, 121 P. 237, 40 L.R.A. (N. S.) 901, Ann. Cas. 1914A, 520; Watson v. Borah et al., 37 Okla. 357, 132 P. 347. Rev. Laws 1910, sec. 4993, provides:

"Issues of law must be tried by the court, unless referred. Issues of fact arising in actions for the recovery of money, or of specific real or personal property, shall be tried by a jury, unless a jury trial is waived, or a reference be ordered, as hereinafter provided"

--and section 4994:

"All, other issues of fact shall be tried by the court, subject to its power to order any issue or issues to be tried by jury. * * *"

¶6 This, not being an action for the recovery of money or of specific personal property, was properly triable to the court, who had a right to send or not to send issues of fact arising therein to the jury for specific findings. The proper practice is stated in the syllabus in Success Realty Co. v. Trowbridge, 50 Okla. 402, 150 P. 898. There we said:

"In a case purely of equitable cognizance, neither of the litigants is entitled, as a matter of right, to a trial by jury. In the trial of equity cases the court may call in a jury for the purpose of advising the court upon questions of fact, and the court may either adopt or reject their conclusions as to the same as he sees fit."

¶7 But as this error was uncomplained of in the trial court, and it is too late to complain of it here (Nowlin v. Melvin, 47 Okla. 57, 147 P. 307), we will not reverse the case on that account, but will dismiss the subject in the language of Dunphy v. Kleinschmidt et al., 78 U.S. 610, 11 Wall. 610, 20 L. Ed. 223:

"Now, it is perfectly obvious that, with the exception of the verdict being rendered by nine jurors, the trial was altogether conducted as a trial at common law, and that the decree was rendered on the verdict precisely as a judgment is rendered on a verdict at common law. This was clearly an error. The case, being a chancery case, and being instituted as such, should have been tried as a chancery case by the modes of proceedings known to courts of equity. In those courts the judge or chancellor is responsible for the decree. If he refers any questions of fact to a jury, as he may do by a feigned issue, he is still to be satisfied in his own conscience that the finding is correct, and the decree must be made as a result of his own judgment, aided, it is true, by the findings of the jury. Here the judgment is pronounced as the mere conclusion of law upon the facts found by the jury."

See, also, Lake Erie, etc., v. Griffin et at., 92 Ind. 487; Hall v. Doran et al., 6 Iowa 433; Milk et al. v. Moore, 39 Ill. 584. Or, as stated in Ayers v. Scott, Ky. Dec. (2 Ky.) 162:

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