Crookum v. Ketchum
| Decision Date | 25 September 1935 |
| Docket Number | Case Number: 25587 |
| Citation | 174 Okla. 468,50 P.2d 710,1935 OK 851 |
| Parties | CROOKUM v. KETCHUM |
| Court | Oklahoma Supreme Court |
¶0 1. Principal and Agent--Principal's Ratification of Stranger's Unauthorized Acts or Contracts by Accepting Benefits.
A principal may ratify unauthorized acts or contracts made on his behalf by a mere stranger or volunteer who has never been agent of the principal, but who has assumed to act as such in the particular transaction, by accepting the benefits therefrom.
2. Mechanics' Liens--Ratification by Wife of Husband's unauthorized Order of Material to Improve Homestead Owned by Wife.
Where material is ordered by the husband to be used in improving the homestead of the husband and wife, the title to same being in the wife, and she retains possession and uses same and obtains the benefit thereof such acts constitute a ratification of the acts of the husband, even though same were unauthorized.
3. Deeds--Absolute Fee Conveyed by Deed in Statutory Form Though Clause Inserted in Restraint of Alienation.
A warranty deed in statutory form by apt language conveys an absolute fee, and this estate is incompatible with a lesser power over it than that of complete possession, enjoyment, and right of disposition. Such an intention being manifest from the language of a warranty deed, any clause inserted therein in restraint of alienation is subordinate to this intention of the grantor, as manifested by the language of the conveyance, and, being subordinate and wholly inconsistent therewith, is inoperative.
Appeal from District Court. Oklahoma County; Harve Melton, Assigned Judge.
Action by H. E. Ketchum against Matilda Crookum and S. D. Crookum, her husband. Judgment for plaintiff, and defendant Matilda Crookum appeals. Affirmed.
S. A. Horton, for plaintiff in error.
W. R. Withington, for defendant in error.
¶1 The plaintiff in error was defendant below, and the defendant in error was plaintiff below, and will be referred to herein as they appeared in the lower court.
¶2 This is an action by H. E. Ketchum against Matilda Crookum and S. D. Crookum, her husband, to recover for certain materials sold under an oral contract with S. D. Crookum and used in the erection of certain improvements upon the homestead of the defendants, Matilda Crookum and S. D. Crookum, and to establish a lien thereon.
¶3 Matilda Crookum filed a separate answer, in which she denies that she ever contracted for the purchase of the material alleged to have been sold, either in person or by an agent, and denies that she promised to pay for same, and further affirmatively alleges that her father, Herman F. Matzke, deeded the land to her, and that the deed contained the following clause:
"Provided, the land described herein shall not be sold, or in any way encumbered for the period et 15 years from this date, and in case any attempt to sell or in any way encumber, or suffer the same to be done, the title shall revert to the grantor or his heirs or assigns."
¶4 The testimony on the part of plaintiff was that plaintiff was in the lumber business, and on the 10th day of September, 1930, sold S. D. Crookum a bill of creosoted posts; that same was delivered on defendants' farm and receipted for by S. D. Crookum, and his wife, Matilda Crookum, was present at the time. That about 30 days thereafter H. A. Brewer, at the home of the defendants, delivered to Matilda Crookum a bill for same; that she told him that they "didn't have the money right then, but would have in a few days for us." At the time he went out for the collection of the bill, the place was partially fenced with creosoted posts, such as plaintiff had sold them, and one could not go into the place without seeing the posts. That a lien claim was filed within the time prescribed by law, and that $ 50 was a reasonable attorney's fee in the foreclosure of this lien.
¶5 Matilda Crookum testified that this was her homestead, deeded to her from her father, and in the deed was a provision that this land should not be sold or in any way encumbered within 15 years from the date; that she knew nothing about these posts, had never seen the posts sued for, and that the posts around her farm were placed there by her tenant, F. A. Brown. She denied being present when the posts were delivered, or that the bill for same was ever presented to her, or that she ever saw or had any conversation with H. A. Brewer, plaintiff's witness, who claimed that he presented her with the bill, or that she told him that they had no money then but would have some for him in a few days.
¶6 The defendant S. D. Crookum testified that the posts he bought and that were delivered to him were used on the clubhouse and around the brooder farm on Lake Overholser.
¶7 This court has frequently held that where there is any competent testimony supporting the decision of the trial judge, this court will not review the testimony or reverse the decision.
¶8 The material in this case having been purchased by the defendant S. D. Crookum, and used on the homestead which was owned by his wife, Matilda Crookum, did not create a lien upon said premises unless she had authorized him to purchase the posts, but under the law in this jurisdiction the owner of the homestead could ratify the act of her husband in buying said material, even though he was not her agent.
¶9 In Wherry et al. v. Luckey, 99 Okla. 239, 226 P. 588, this court held:
"A principal may either ratify unauthorized acts or contracts made on his behalf by a mere stranger or volunteer who has never been his agent, but who has assumed to act as such in the particular transaction, or he may ratify the act of one who is his agent for certain purposes, but who in the particular transaction acted outside the scope of his authority or after the termination of his agency, whereupon the relation of principal and agent is created in respect to matters concerning which none before existed, and the act or contract thereby becomes as effectual as to the principal as though it had been previously authorized."
¶10 See 2 Corpus Juris 470. And the same principle was held by this court in 1913, in the case of Whitcomb v. Oller et al, 41 Okla. 331, 137 P. 709, which states in the 4th syllabus paragraph:
"One who, with knowledge of a given transaction, accepts the benefits flowing therefrom, done by one assuming, though without authority, to be his agent, ratifies the act, and is liable therefor to the same extent, as if authority to act had been previously...
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