Cotton v. Mcclendon

• Decision Date: 13 September 1927
• Docket Number: Case Number: 17277
• Citation: 128 Okla. 48,261 P. 150,1927 OK 263
• Parties: COTTON et al. v. McCLENDON.
• Court: Oklahoma Supreme Court

1927 OK 263

261 P. 150

128 Okla. 48

COTTON et al. v. McCLENDON.

Case Number: 17277

Supreme Court of Oklahoma

Decided: September 13, 1927

Syllabus

¶0 1. Appeal and Error--Review--Necessity for Motion for New Trial Though Evidence Uncontroverted. Where a case is tried upon documentary evidence and oral testimony, the law does not dispense with the necessity of a motion for a new trial where it is sought to present the case to this court for a review. That the documentary evidence and oral testimony is not controverted does not change the rule that it is evidential in its nature and from which material ultimate facts may be inferred, but in regard to which there is no agreement.

2. Indians--Enrollment Record as Conclusive Evidence of Exact Age. Under the Act of Congress of May 27, 1908, chapter 199, 35 Stat. 313, providing that the enrollment record of the Commissioner to the Five Civilized Tribes should be conclusive evidence as to the age of an enrolled citizen, the enrollment record giving the age of an Indian as four years in 1902 and specifically finding that he was born on July 6, 1898, is conclusive that he reached his majority on July 6, 1919.

3. Indians--Invalidity of Deed by Minor. A deed executed by a Chickasaw Indian minor to lands allotted to him, not being made by his guardian pursuant to an order of a county court having jurisdiction, is null and void.

4. Same--Deed not Validated by Subsequent Decree of District Court Quieting Title. Such Indian minor being legally incompetent to execute a conveyance of land allotted to him, except pursuant to an order of a county court having jurisdiction, a district court is without jurisdiction to give validity to a void conveyance executed by such minor, and a decree of the district court in an action between the said minor and his grantee, quieting title in such grantee, being void for want of jurisdiction, does not divest such minor of his title.

Malcolm E. Rosser, for plaintiffs in error.

J. S. Arnote, for defendant in error.

CLARK, J.

¶1 This cause presents error from the district court of Haskell county. This case was brought by defendant in error, J. W. McClendon, against the plaintiffs in error, Fred Cotton and Alliance Trust Company, in the district court of Haskell county. Petition was filed on the 5th day of May, 1924, which alleged in substance that defendant in error was the owner of certain land located in Haskell county, and that said land was patented by the Choctaw and Chickasaw Nations to Frank Harris, a citizen by blood of the Chickasaw Nation enrolled opposite Roll No. 4686; that Frank Harris, joined by his wife, on August 4, 1919, for a valuable consideration sold and conveyed said land to J. W. McClendon; that Fred Cotton was in the unlawful possession of the same; and asked damages for the unlawful detention of said premises.

¶2 Defendant in error further alleged that on August 17, 1917, said Frank Harris, then a single man, by warranty deed attempted to convey the land and premises described in first cause of action to Fred Cotton; that said deed is void for the reason that at the date of execution and delivery of said deed, Frank Harris was a minor under the age of 21 years, and Frank Harris being a member of the Five Civilized Tribes, a Chickasaw Indian by blood, and enrolled as such under Roll No. 4686; that Fred Cotton obtained no interest in or to said premises by reason of said deed. Defendant in error further alleged that Frank Cotton on the 22nd day of November, 1918, executed and delivered to the Alliance Trust Company a mortgage upon said land and premises. Defendant in error prayed the deed from Frank Harris to Fred Cotton be canceled and mortgage from Fred Cotton to Alliance Trust Company be canceled, and that he have judgment for possession, and damages for unlawful detention, and that his title be quieted.

¶3 The Alliance Trust Company filed its answer in which it admitted holding the mortgage and alleged that Frank Harris had attained his majority on the 17th day of August, 1917, as shown by the entire enrollment records of the Commission to the Five Civilized Tribes; that the deed from Frank Harris to Fred Cotton was valid and conveyed fee-simple title; that on the 15th day of January, 1918, Fred Cotton brought an action in the district court of Haskell county against the said Frank Harris to quiet title to said premises; that Frank Harris appeared in said action and filed an answer; that said case was tried on the 20th day of September, 1918, and judgment was rendered in said action quieting the title of said Fred Cotton; that Frank Harris appealed from said judgment to the Supreme Court of the state of Oklahoma; that said appeal was dismissed for want of prosecution; that the claim set up by plaintiff in this action was adjudicated, determined, and adjudged against the said Frank Harris, and was binding and effective upon and against the plaintiff, and bars plaintiff, defendant in error, from claiming any right by reason of said conveyance from Frank Harris.

¶4 Fred Cotton filed separate answer, in substance, the same as that of the Alliance Trust Company. Defendant in error filed a reply and alleged that the purported judgment entered in No. 1817 by the district court of Haskell county, wherein Fred Cotton was plaintiff and Frank Harris was defendant, and referred to in plaintiff in error's answer, was void for the reason that said action was brought and the purported judgment rendered therein while the said Frank Harris was under 21 years of age, said Frank Harris being a citizen by blood of the Chickasaw Nation, as fully set forth in plaintiff's petition; that said action was not brought upon a bona fide issue, but was brought for the purpose of endeavoring to convey title by judgment of said court while the said Frank Harris was under 21 years of age.

¶5 Defendant in error, plaintiff below, further alleged that he was not a party to said action, and that at the time he purchased said land from the said Frank Harris, he had no notice or knowledge of said judgment for the reason an abstract of said land did not contain said judgment; that the judgment was a cloud upon the title of defendant in error, and prayed that same be canceled. Defendant in error also filed a reply to answer of Fred Cotton which in substance was the same as reply to the answer of Alliance Trust Company. Upon the issues joined a trial was had to the court. The court found the issues in favor of the defendant in error, plaintiff below, J. W. McClendon. The trial court found that the warranty deed executed and delivered by Frank Harris and his wife, Myrtly Harris, to J. W. McClendon on the 4th day of August, 1919, was a valid deed and conveyed the title to said real estate from Frank Harris to plaintiff, J. W. McClendon, and that plaintiff is the owner and entitled to recover the possession of said real estate.

¶6 The court found the rental value of the real estate to be $ 500 per year. The court found that Frank Harris, a part of whose allotment is involved in this action, is a Chickasaw Indian, being enrolled under Roll No. 4686, and was born July 6, 1898, and that he did not reach his majority, the age of 21, until July, 1919, The court found that the deed executed and delivered by Frank Harris to defendant Fred Cotton, dated August 17, 1917, and recorded in Haskell county, was executed while said Frank Harris was a minor, and is void, and that plaintiff was entitled to have said deed canceled and canceled of record.

¶7 The court further found that the mortgage executed by Fred Cotton and his wife, Majorie Cotton, to the Alliance Trust Company, Ltd., on November 22, 1918, was executed by Fred Cotton and wife without having title thereto, and at a time when Frank Harris, the owner of said land, was a minor, and that said mortgage is void and plaintiff is entitled to have the same canceled and canceled of record. The court further found that in the action filed in the district court of Haskell county by Fred Cotton, plaintiff, against Frank Harris, as defendant, on or about January 5, 1918, which action was to quiet title to land and premises involved in this action, upon which action of Fred Cotton against Frank Harris judgment was rendered September 30, 1918, that said trial was begun and all proceedings thereunder were had while said Frank Harris was a minor, and that the court had no jurisdiction of said action and that the judgment rendered therein is void and that plaintiff is entitled to have same canceled and set aside.

¶8 The court rendered judgment in favor of plaintiff, defendant in error, and canceled the deed from Harris to Cotton and the mortgage from Cotton to the Alliance Trust Company, Ltd., adjudged defendant in error, plaintiff below, to be the owner of said land, and gave him judgment for possession of same and judgment against Fred Cotton for $ 2,000 rent, and canceled the judgment in case No. 1817 in the district court of Haskell county, entitled "Fred Cotton v. Frank Harris." Plaintiffs in error filed motion for a new trial, which was overruled, and they brought the case here for review. Defendant in error filed motion to dismiss appeal. Defendant in error admits that if motion for new trial was necessary to review error complained of, then case-made was served in time, but contends that a motion for a new trial was unnecessary. Section 572, C. O. S. 1921, provides:

"A new trial is a re-examination in the same court of an issue of fact after a verdict by a jury, the approval of the report of a referee, or a decision by the court."

¶9 Defendant in error cites many cases in support of this motion. We think this case is clearly within the rule announced by this court in the case of Jones et al. v. Fearnow et al., 47 Okla. 586, 149 P. 1138, in which this court said:

"Where a case is tried upon an agreed statement of facts and upon admissions of counsel, documentary evidence, and oral testimony, the law does not dispense with

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