Cochran v. Norris

• Decision Date: 29 October 1935
• Docket Number: Case Number: 26194
• Citation: 51 P.2d 736,175 Okla. 126,1935 OK 1036
• Parties: COCHRAN v. NORRIS et al.
• Court: Oklahoma Supreme Court

1935 OK 1036

51 P.2d 736

175 Okla. 126

COCHRAN v. NORRIS et al.

Case Number: 26194

Supreme Court of Oklahoma

Decided: October 29, 1935

Syllabus

¶0 1. Drains--Invalidity of Drainage Assessment Against Allotment of Unrestricted Member of Chickasaw Tribe.

Under the provisions of the Atoka Agreement, embodied in the Act of Congress of June 28, 1898 (30 Stat. 495), by which the lands of the Choctaw and Chickasaw Indian allottees were to remain nontaxable while title remains in the allottee but not to exceed 21 years from date of patent, an assessment for benefits for drainage purposes against the allotment of an unrestricted member of the Chickasaw Tribe is void, when made while title remains in said member and within the 21-year period.

2. Guardian and Ward--County Judge Cannot Authorize Guardian to Mortgage Property for Purpose of Paying Delinquent Taxes.

Under section 1267, Okla. Stats. 1931, the county judge is without Judicial power or authority of law to make an order authorizing the guardian to execute a mortgage or other instrument creating a lien upon the property of his ward for the primary purpose of paying delinquent taxes against the land.

3. Same--Collateral Attack on Void Order or Decree of County Court.

Where the record in a case affirmatively discloses the facts to he such that such court is without power in such case to make the order or decree it assumes to make, the same is void, and therefore is subject to collateral attack for want of jurisdiction to the extent, at least, that such court is without power to make the same.

4. Drains--Contractor Charged With Knowledge of Law Affecting Validity of Special Assessments Levied for Payment of Improvement.

A contractor is charged with knowledge of the law under which a contract for construction of drainage ditches and assessments of benefits may be entered into, and one who contracts to construct such drainage ditches, in consideration of receiving assessments against abutting property in payment of such construction work, should, prior to entering into such contract, ascertain whether or not such assessments are enforceable, and upon failure to do so acts at his peril.

5. Quieting Title--Sufficiency of Petition Against One Claiming Interest by Virtue of Mortgage.

In an action to quiet title, where the petition alleges that the plaintiff is the owner in fee and in the actual peaceable possession of the property in controversy, describing the premises, and that the defendant claims an interest therein adverse to the plaintiff, by virtue of a certain mortgage, it states a cause of action.

6. Insane Persons--Invalidity of Conveyance by One Known to Be Incompetent-- Offer to Restore Consideration not Required.

Where the mental incompetency of the one who has made the conveyance or other contract is known to the other at the time it was made, no allegation of a tender or offer to restore the consideration is a necessary averment of the complaint.

7. Same--Equity -- Maxim Requiring One Seeking Equity to Do Equity not Applicable Against Incompetent.

The maxim that he who seeks equity must do equity will not be applied where to do so will defeat a public policy of the state or destroy the protection afforded an incompetent by section 1267, Okla. Stats. 1931.

Appeal from District Court, Grady County; Will Linn, Judge.

Action by Grover Cochran, an incompetent, by Cecilia Cochran, his guardian, against C. N. Norris, C. C. Ward, and Irvin Polson, to cancel notes and mortgage and quiet title to real estate. Judgment and decree for defendants; plaintiff appeals. Reversed and remanded, with instructions.

Melton & Melton, for plaintiff in error.

Bailey & Hammerly, for defendants in error.

PER CURIAM.

¶1 This was an action filed in the district court of Grady county by Grover Cochran, an incompetent, by J. J. Cochran, his guardian, against C. N. Norris, C. C. Ward, and Irvin Poison, to cancel a certain mortgage on real estate, together with notes thereby secured, and to quiet title to said property. Mrs. Cecilia Cochran, having succeeded J. J. Cochran as guardian of Grover Cochran, was substituted as plaintiff while the cause was pending in the district court.

¶2 The parties will be referred to as they appeared in the trial court.

¶3 On May 7, 1923, Grover Cochran was adjudged incompetent by the county court of Grady county, and J. J. Cochran was appointed guardian of his estate. At the time of the trial in the district court, he was still incompetent and was confined in an insane asylum. Grover Cochran is a Chickasaw Indian allottee, one-eighth blood, and was 37 years of age on September 5, 1932. The lands described in plaintiff's petition are a part of the lands allotted and patented to him by reason of his citizenship in the Chickasaw Tribe of Indians. The title to the property had not passed from the incompetent since it was allotted to him. On August 15, 1925, the guardian filed in the county court of Grady county a petition for authority to mortgage the land of the incompetent, as follows:

"The petition of J. J. Cochran, guardian of the estate of Grover Cochran, incompetent, respectfully represents and shows that he is the duly qualified and acting guardian of Grover Cochran, incompetent, and that said incompetent is the owner of the following described real estate in Grady County, Oklahoma: N.W. 1/4 of S.E. 1/4 and S.W. of S.E. 1/4 and S.E. 1/4 of S.E. 1/4 of sec. 26 twp. 3 N., range 5 W., Grady County Oklahoma.

"That a drainage ditch constructed through said property causes the estate of said incompetent to be indebted to C. N. Norris and C. C. Ward in the sum of $ 1,447; that there is not sufficient cash money in guardian's hands belonging to said estate to pay said indebtedness.

"Wherefore, your petitioner prays the court to grant authority to J. J. Cochran, guardian, to mortgage said real estate in the sum of $ 1,447 for the purpose of paying said debt.

"Dated this 15 day of August, 1925.

"J. J. Cochran, Guardian."

¶4 On August 25, 1925, the county court entered the following order:

"Now on this 25 day of August, 1925, the petition of J. J. Cochran, guardian for the estate of Grover Cochran, incompetent, came on for hearing and it being proven that notice of said hearing had been given as required by law, and that the best interest of the estate demands the mortgaging of the property.

"It is therefore ordered, adjudged and decreed by this court, that said J. J. Cochran, as guardian of Grover Cochran. incompetent, is hereby authorized and empowered to execute a mortgage upon the real estate belonging to said incompetent and described as follows: N.W. 1/4 of S.E. 1/4 and S.W. 1/4 of S.E. 1/4 and S.E. 1/4 of S.E. 1/4 of section 26, twp. 3 north, range 5 west, Grady county, Oklahoma, to the amount of $ 1,447 payable in ten yearly installments beginning January 1, 1929, bearing 6% interest from date, and that said amount be applied to pay the indebtedness now existing on said real estate.

"Witness my hand and the seal of said court the 25 day of August, 1925.

"J. E. Shelton, County Judge. (Seal)"

¶5 On October 1, 1925, J. J. Cochran, as guardian of Grover Cochran, executed to C. N. Norris and C. C. Ward a mortgage on the above land to secure notes executed on that date by the guardian in the sum of $ 1,447.

¶6 The petition for the creation of Rush creek drainage district was filed with the board of county commissioners of Grady county in September, 1924, and an order confirming viewers' report entered by the county commissioners January 5, 1925. The report of the viewers apportioned $ 1,559 of the benefits to the lands of Grover Cochran. The record does not disclose when the construction was started. Norris and Ward, after the assessments had been made on the lands of the incompetent, paid the amount of the assessments to the county treasurer. The notes and mortgage were executed by the guardian to take up the amount of the assessments. The ditch was not completed through Grover Cochran's land when the mortgage and notes were given. They were put in escrow and delivered after the ditch through his farm had been completed. Norris and Ward sold and transferred the notes and mortgage to Irvin Polson after the ditch had been dug through Grover Cochran's farm, but before completion of the entire drainage district work. Polson knew when he purchased the notes and mortgage that they had been executed by the guardian to take up this assessment for drainage district.

¶7 The plaintiff contends: (1) That the assessment was a tax; (2) that the allotment of this incompetent was nontaxable; (3) that the order of the county court purporting to authorize the guardian to execute the notes and mortgage was void for the reason that the county court was without power or authority to authorize the guardian to execute the same; (4) that the mortgage creates a cloud on the title to the lands of the incompetent; (5) that plaintiff has no adequate remedy at law and is entitled to a decree canceling the notes and mortgage and quieting the title to the property in plaintiff.

¶8 The defendants contend: (1) That the assessment is not a tax; (2) that the notes and mortgage were executed in payment for improvements placed on the premises at the direction and with the consent of the plaintiff; (3) that plaintiff has an adequate remedy at taw and is not entitled to maintain an equitable action to quiet title; (4) that the maxim "he who seeks equity must do equity" is applicable and plaintiff is not entitled to any relief, plaintiff having failed to offer to refund or restore the benefits received by plaintiff.

¶9 The district court found, adjudged, and decreed that plaintiff was not entitled to the relief for which he prayed.

¶10 Plaintiff assigns as errors: (1) That the trial court erred in overruling plaintiff's motion for new trial; (2) that the trial court erred in rendering judgment denying plaintiff any relief and declining to cancel the notes and mortgage. Plaintiff presents these...