Coody v. Coody

• Citation: 136 P. 754,1913 OK 649,39 Okla. 719
• Decision Date: 18 November 1913
• Docket Number: Case Number: 3026
• Parties: COODY v. COODY et al.
• Court: Oklahoma Supreme Court

1913 OK 649

136 P. 754

39 Okla. 719

COODY v. COODY et al.

Case Number: 3026

Supreme Court of Oklahoma

Decided: November 18, 1913

Syllabus

¶0 1. APPEAL AND ERROR--Ruling on Demurrer--Presumption. Where the two defendants in an action file separate demurrers to a petition, charging (1) a misjoinder of causes of action, (2) that the petition failed to state facts sufficient to constitute a cause of action against the demurrant, and the court sustains the demurrer generally, and the record being silent as to the ground or grounds of the decision, it will be presumed that the demurrer was sustained upon the latter ground.

2. PLEADING--Demurrer--Misjoinder. The test of whether there is more than one cause of action stated or attempted to be stated in a petition in a suit in equity is whether there is more than one primary right sought to be enforced or one subject of controversy presented for adjudication. If there is, the pleading is demurrable.

3. SAME. Where a general demurrer is filed to a petition as a whole, if any paragraph of the pleading is good and states a cause of action, a demurrer should be overruled.

4. DEEDS--Assent--Intoxication. A deed, executed by a person so destitute of reason as not to know the nature or consequences of his act, though his incompetency be produced by intoxication, is voidable and may be avoided by himself, though the intoxication was voluntary and not produced by the circumvention of the other party.

5. INDIANS--Disaffirmance of Contract--Inability to Restore Consideration. In a suit in equity brought by a Cherokee Indian, immediately upon attaining his majority, to cancel certain leases and a mortgage given by him during minority on his allotted lands, a petition which charged that all of the money paid him on account thereof during his minority had been spent and squandered prior to attaining his majority sufficiently excused the failure of an offer to return the consideration received.

Haskell B. Talley, for plaintiff in error.

P. J. Carey and W. C. Franklin, for defendants in error.

SHARP, C.

¶1 On September 13, 1909, plaintiff in error, plaintiff below, brought suit in the district court of Washington county against defendants in error, defendants below, seeking the cancellation of certain leases, a mortgage, and a deed on lands in said county theretofore owned by him. It appears from the petition: That plaintiff was a one-fourth blood Cherokee citizen, and the lands covered by the instruments sought to be cancelled constituted his allotment of lands in the Cherokee Nation. That at all times prior to August 31, 1909, plaintiff was a minor, under the age of 21 years, and was poorly educated, being scarcely able to read and write the English language, and totally ignorant and inexperienced in business affairs. That he had executed instruments affecting said lands as follows: Oil and gas lease during the month of January, 1909, to the defendant D. R. Coody; mortgage to defendant O'Keiffe during the month of March, 1909; oil and gas mining lease also to the defendant O'Keiffe during the same month; oil and gas mining lease during the month of May, 1909, to the defendant O'Keiffe; and warranty deed August 31, 1909, to the defendant O'Keiffe. That during the month of March, 1909, the oil and gas lease, executed to defendant Coody, was by him assigned to the defendant O'Keiffe, and that all of said instruments had been recorded in the office of the register of deeds for Washington county. That the total consideration received by him on account of the said several instruments did not exceed the sum of $ 400, $ 75 of which was paid at the time of the execution of the warranty deed. Various grounds for setting aside the said instruments are charged in the amended petition, among which are: (1) Legal disability of infancy at the time of the execution of said instruments, except that of August 31, 1909; (2) that, at the time all of said instruments were executed, plaintiff was under the influence of intoxicants and wholly unable to transact business and understand the nature of the instruments signed; (3) undue influence practiced upon him by a kinsman and confidential adviser, the defendant D. R. Coody; (4) conspiracy to defraud; (5) duress; (6) inadequacy of consideration. To the petition as amended the defendants filed their separate demurrers, each upon the same grounds, namely: (1) That the petition did not state facts sufficient to constitute a cause of action against the demurring defendant; (2) that several causes of action were improperly joined. These demurrers were sustained, but upon what ground the journal entry does not show. Had the court sustained them upon the ground of misjoinder of causes of action, it would have been its duty to so state at the time in order to afford plaintiff an opportunity to move to be allowed to file separate petitions, each to include such of said causes of action as might have been joined, and had them each docketed pursuant to section 4743, Rev. Laws 1910. Weber v. Dillon, 7 Okla. 568, 54 P. 894; Goldsborough v. Hewitt, 23 Okla. 66, 99 P. 907; Owen et al. v. City of Tulsa et al., 27 Okla. 264, 111 P. 320. As the court made no such indication, and counsel were therefore afforded no opportunity, it is but fair to presume that the court sustained the demurrer upon the ground that the petition failed to state a cause of action. In passing, however, we may say that it has been said upon high authority (Abbott's Trial Brief, Pleadings, pp. 739, 740) that the test of whether there is more than one cause of action stated or attempted to be stated in a petition in a suit in equity is whether there is more than one primary right sought to be enforced or one subject of controversy presented for adjudication. If there is, the pleading is demurrable. Our statute (section 4738, Rev. Laws 1910) provides for the uniting of several causes of action in the same petition, whether they be such as have heretofore been denominated legal or equitable, or both, where they all arise out of one of the classes therein named. Under this provision of the statute, claims affecting several defendants, such as might have been brought within the compass of a single suit in equity, may be regarded as one cause of action; and in such suits, therefore, equitable rules as to the joinder of parties defendant are still applicable. The second ground of demurrer being general, no attempt being made to specify distinctly the grounds of objection urged to the petition, if there is one paragraph in the petition which states a cause of action, such demurrer must be overruled. Hanenkratt v. Hamil, 10 Okla. 219, 61 P. 1050; Berry v. Geiser Mfg. Co., 15 Okla. 364, 85 P. 699; Cockrell v. Schmitt, 20 Okla. 207, 94 P. 521, 129 Am. St. Rep. 737; Emmerson v. Botkin, 26 Okla. 218, 109 P. 531, 29 L.R.A. (N.S.) 786, 138 Am. St. Rep. 953. The amended petition charges that the defendants, acting together, wrongfully conspired to cheat and defraud plaintiff of his land, and that the said deed of August 31, 1909, was the final consummation of a scheme theretofore entered into by said defendants at and during the time said leases and the said mortgage were taken, and that, at the time all of said instruments were made, the plaintiff was under the influence of intoxicants and wholly unable to transact business and understand the nature of the instruments by him signed. Without passing upon the sufficiency of the petition as to the other grounds upon which relief was sought, we think the court erred in sustaining the defendants' demurrers, for if, at the time the deed of August 31, 1909, was executed, plaintiff was so under the influence of intoxicants as to be wholly unable to transact business and to understand the nature of the deed which he signed, he may plead his disability from such drunkenness in an action to cancel the deed. Intoxication which is absolute and complete, so that the party is for the time entirely deprived of the use of his reason and is wholly unable to comprehend the nature of the transaction and of his own acts, is a sufficient ground for setting aside or granting other appropriate affirmative relief against conveyance or contract made while in that condition, even in the absence of fraud, procurement, or undue advantage by the other party. Pomeroy's Equity Jurisprudence, sec. 949. The following texts announce the rule applicable to the question presented by the demurrer: Story on Contracts, p. 15:

"Drunkenness must be such as to incapacitate the party from the proper exercise of his judgment and prevent him from understanding his contract."

¶2 Clark on Contracts, pp. 274, 275:

"A contract made by a person while he is so drunk as to be incapable of understanding its nature and effect is voidable, * * * (but his intoxication) must be so excessive as to render him incapable of knowing what he is doing."

¶3 In Bishop on Contracts, secs. 980, 981, it is said:

"Intoxication so deep as to take away the agreeing mind (in other words, to disqualify the mind to comprehend the subject of the contract and its nature and probable consequences) impairs such contract, if made while it lasts, the same as insanity. To have this effect, it must render the party non compos mentis for the action."

¶4 Anson on Contracts, p. 150:

"The contract of a * * * drunken person is voidable, at his option, if it can be shown that at the time of making the contract he was absolutely incapable of understanding what he was doing."

¶5 1 Benjamin on Sales, sec. 30:

"A drunkard, when in a state of complete intoxication, soas not to know what he is doing, has no capacity to contract."

¶6 In 1 Pothier, Obligations on Contracts, 49:

"It is evident that drunkenness, when it goes so far as to absolutely destroy the reason, renders a person in this state, so long as it continues, incapable of contracting, since it renders him incapable of consent."

¶7 11 A. & E. Enc. L. p. 773:

"An express contract, entered into

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