Cooper v. Flesner

• Decision Date: 15 May 1909
• Citation: 103 P. 1016,24 Okla. 47,1909 OK 137
• Parties: COOPER v. FLESNER et al.
• Court: Oklahoma Supreme Court

103 P. 1016

24 Okla. 47, 1909 OK 137

COOPER v. FLESNER et al.

Supreme Court of Oklahoma

May 15, 1909

Syllabus by the Court.

The question presented to a trial court on a motion to direct a verdict or which presents itself in the consideration of such action on its own motion is whether, admitting the truth of all the evidence which has been given in favor of the party against whom the action is contemplated, together with such inferences and conclusions as may be reasonably drawn from it, there is enough competent evidence to reasonably sustain a verdict should the jury find in accordance therewith. Where the evidence is conflicting and the court is asked or on its own motion considers the direction of a verdict, all facts and inferences in conflict with the evidence against which the action is to be taken must be eliminated entirely from consideration, and totally disregarded, leaving solely the evidence for consideration which is favorable to the party against whom such action is leveled.

An estoppel must be pleaded in order to enable a party to avail himself of it on the trial, and must be pleaded with particularity in order to constitute either a cause of action or defense. No intendments are indulged in favor of such plea, but it is incumbent upon the party pleading to aver all the facts essential to its existence.

Where a deed has been once recorded, a subsequent burning or other destruction of the records will not render the same ineffectual as notice to subsequent purchasers.

The words "actual notice" do not always mean in law what in metaphysical strictness they import. They more often mean knowledge of facts and circumstances sufficiently pertinent in character to enable reasonably cautious and prudent persons to investigate and ascertain as to the ultimate facts.

One who purchases land with knowledge of such facts as would put a prudent man upon inquiry, which, if prosecuted with ordinary diligence, would lead to actual notice of rights claimed adversely to his vendor, is guilty of bad faith if he neglects to make such inquiry, and is chargeable with the "actual notice" he would have received.

Error from the District Court, Payne County; John H. Burford Judge.

Action by Lou Cooper against Gerd Flesner and others. Judgment for defendants, and plaintiff brings error. Reversed and remanded.

In the absence of a statute to the contrary, the record of a deed continues to be constructive notice, notwithstanding its destruction.

The plaintiff in error, who was plaintiff below, began her action in the district court of Payne county against Gerd Flesner and others to have adjudged and decreed to her an undivided one-half interest in and to the E. 1/2 of the S.E. 1/4 section 8, and the W. 1/2 of the S.W. 1/4 of section 9, in township 19 N., range 2 E., of the Indian meridian, Payne county, Okl., and have her declared to be entitled to the common possession of the premises with the said defendant during the years from 1901 to 1907, inclusive, and praying an accounting for the value of the use and occupancy of the premises during said time; also asking for partition of the same. To this petition the defendant filed an answer denying all of the averments of the petition, except that he was in the actual and sole possession of the land. A trial of the cause was had to a jury, and at the conclusion of the evidence of both parties the court instructed the jury to return a verdict for the defendant, which was accordingly done, and, on judgment being rendered thereon, plaintiff took the case to the Supreme Court of the Territory of Oklahoma by proceedings in error, and the same now comes to us for review by virtue of our succession to that court.

The controversy grows out of the following facts: George W Gardenhire on the 1st day of December, 1890, commuted on the tract of land in controversy, and on the 2d day of March 1891, made a warranty deed to the same to his son, Clide, who on March 24, 1891, executed a warranty deed to the same tract of land to William G. Scott, who, plaintiff alleges, prior to the 9th day of December, 1895, executed and delivered a warranty deed to Jacob Gardenhire, her husband, to whom she was married on the 20th day of September, 1894, and who died on or about January 5, 1895. It is plaintiff's claim that this warranty deed was duly recorded, but that the record of the same was destroyed at the time of the destruction of the courthouse of Payne county by fire on December 27, 1894, and that the original deed she was unable to find or produce. On January 7, 1895, William G. Scott executed and delivered to George W. Gardenhire a quitclaim deed which was duly filed for record with the register of deeds of Payne county, March 15, 1898. On November 20, 1899, George W. Gardenhire made, executed, and delivered to the defendant Flesner his bond for a deed to this tract of land for a consideration of $3,500, $700 of which was duly paid in cash at the time of the execution and delivery of the said bond, and Flesner in March following took actual possession of the tract of land, and on May 16, 1901, received from George W. Gardenhire a warranty deed for the tract, having paid in full the consideration agreed upon. The next payment made after the $700 payment was on the 15th day of January, 1901. At the time of Jacob Gardenhire's death he was without issue and left surviving him his wife and father, so that under our law of descent and distribution they would each inherit a one-half interest in this land, provided the conveyance contended for could be established, and evidence thereof being in such a condition as to charge Flesner with knowledge or notice. At the time Flesner purchased he was not a resident of Payne county, and was virtually a stranger therein. He made, however, several trips to the vicinity of Stillwater before finally coming to an agreement with his grantor and moving on the land.

The testimony adduced by plaintiff is to the effect that on one of his visits to that vicinity in January or February, 1900 he stopped at the home of Louis M. Cooper, the father of plaintiff's present husband, who lived about three-quarters of a mile from the land in controversy. Mr. Cooper testified in answer to interrogatories as follows in reference to what he told him about plaintiff's claim of right and interest in and to the land involved: "Q. Now, this day that Mr. Flesner and Mr. Shaffer was at your house, you say Mr. Flesner said something about buying this east half of the southeast of 8, and the west half of the southwest of 9, the old Gardenhire land, or the Jake Gardenhire land. You may state to the jury what he said about it. A. Well, he came there and called for dinner, as I stated, rather late. We had our dinner, and I told him we never turned any one off, and, if he would wait until my wife could fix dinner, he could have his dinner. While he was sitting there eating dinner he told his business, said he was around looking up a location, and wanted to buy a farm and wanted to know if I knew of any. Well, I knew of several farms for sale, but I don't know that I named the Gardenhire place. He said, though, he was stuck on the Gardenhire place. Q. He told you that? A. Yes, sir, and I asked him: 'For why?' He said it was close to the college, close to school, and he believed he would like to own it. 'Well, now,' I says, 'you are a stranger in the neighborhood, and my advice would be to let that farm alone'; that George Gardenhire didn't own it, that if he bought it he would buy trouble; that Jake's widow had married into my family, married one of my sons, and some day they would commence suit for her rights. Well, they asked the question then if there was any heirs, and I told him no. Well, he said then he wasn't afraid to buy it, and I told him the way I understood the statute she was entitled to one-half of that land, and he said, 'No,' she wasn't entitled to nothing. 'Well,' I says, 'that is your opinion, and my opinion is the other way, but my advice would be to let it alone, and not buy it, for you will buy a lawsuit if you do.' Q. What, if anything, did you say to Flesner about Jake having a deed to that land at any time? A. Well, I told him how the thing happened-- Q. Just go on and tell fully to the jury that conversation with him. A. I don't know as I could tell it all. Q. Tell the jury all you remember you said to him. A. I told him Mr. George Gardenhire had told me he had deeded the farm away, and Mr. Scott told me also he had deeded it to Jake Gardenhire, and Jake Gardenhire told me also he had a deed for it, it was his, and asked me what I thought about the trade, in exchanging his farm directly north for that. 'Well,' I says, 'I don't know how you traded, but I think you made a good trade, a good exchange.' 'Well,' he says, 'I did that, and got a deed for it.' Q. You told Mr. Flesner that, did you? A. Yes, sir; I did tell him that to keep him out of trouble, because I didn't want any trouble in my family, and didn't want him to buy it, or any other stranger." This testimony is corroborated to a considerable degree by the witness's son and his wife, who testified that they were present and heard it. The defendant Flesner testified that he did not so remember this conversation. In answer to questions on cross-examination, he testified as follows: "Q. You don't remember of anything further being said until Mrs. Cooper stepped into the room? What did she say then? A. Why, she said, as she was walking in, I think it was with a dish of fruit, she said, addressing rather Mr. Cooper, as I took it and his answer to her question, says: Is this the old George's place that they are talking about? Q. Then what did you say, or what did Cooper say? A. He says: 'Oh, no; this man wouldn't buy that,...