Crow v. Hardridge
| Decision Date | 30 July 1918 |
| Docket Number | 8747. |
| Citation | 175 P. 115,73 Okla. 136,1918 OK 417 |
| Parties | CROW v. HARDRIDGE et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Sept. 24, 1918.
Syllabus by the Court.
A general demurrer searches the record and reaches the first defective pleading. Where a general demurrer to the answer is filed, if the petition fails to state a cause of action, such demurrer will be sustained to the petition.
The provision of section 6 of an act of the Congress of May 27 1908 (35 Stat. 312), "that the persons and property of minor allottees of the Five Civilized Tribes shall, except as otherwise specifically provided by law, be subject to the jurisdiction of the probate courts of the state of Oklahoma" embraces allotted lands inherited by such minor.
A deed executed by a Creek Indian minor to allotted lands inherited by him, not being made by his guardian, pursuant to an order of the county court having jurisdiction, is null and void.
Such Indian minor being legally incompetent to execute a conveyance of the allotted lands inherited by him, except pursuant to an order of the county court having jurisdiction the 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 said minor and his grantee, quieting title in such grantee, being void for want of jurisdiction, does not divest such minor of his title.
Commissioners' Opinion, Division No. 1. Error from District Court, Okmulgee County; Ernest B. Hughes, Judge.
Action by Charles Crow against Edmond Hardridge and others. Judgment for defendants, and plaintiff brings error. Affirmed.
Jay A Anderson, of Muskogee, for plaintiff in error.
James M. Hays, of Okmulgee, for defendants in error.
This action was commenced by the plaintiff in error, plaintiff below, against the defendants in error, defendants below, to quiet title to certain real estate in Okmulgee county and to vacate and cancel a judgment of the district court of Okmulgee county and to cancel, as clouds upon plaintiff's title, certain deeds from the said defendant Edmond Hardridge to the other defendants.
The defendants answered, and thereafter moved the court for judgment on the pleadings. The plaintiff demurred to the answer of the defendants upon the ground that said answer did not state facts sufficient to constitute a cause of action in favor of the defendants nor defense to the petition of the plaintiff. Upon the hearing of the demurrer to the answer the trial court, applying the rule that a demurrer to an answer searches the record, sustained the demurrer to plaintiff's petition and dismissed the action of plaintiff. Plaintiff prosecutes this proceeding in error to reverse such judgment.
The petition, so far as the same is necessary to be considered in the determination of this case, alleges that the real estate in controversy was originally allotted to Adam Hardridge, a Creek Indian of the half blood; that the said Adam Hardridge died interestate on or before January 1, 1906, leaving surviving him, as his sole heir at law, the defendant Edmond Hardridge, who became the owner of said land upon the death of his said father; that on December 26, 1908, the defendant Edmond Hardridge conveyed said land by warranty deed to Lewis B. Malone, who thereafter conveyed the same to plaintiff. It is further alleged that the defendant Edmond Hardridge, by Robert A.
Grayson, his next friend, commenced an action in the district court of Okmulgee county against said Lewis B. Malone to cancel said warranty deed; that judgment was rendered in said action on May 27, 1911, in favor of Lewis B. Malone, quieting title in said Malone, but requiring said Malone to pay Edmond Hardridge the sum of $1,060 as a balance of the consideration due on the purchase price of said land; that said sum of $1,060 was paid by said Malone to the clerk of said court on May 27, 1911, and that on said date the said clerk paid said sum of money to Robert A. Grayson, the duly appointed, qualified, and acting guardian of said Edmond Hardridge, who was yet a minor. The petition then shows that the judgment pleaded was thereafter opened upon the application of Edmond Hardridge, and that, after further proceeding, judgment was finally rendered in said cause in favor of said Edmond Hardridge, canceling his deed to Lewis B. Malone and quieting title in said land in said Edmond Hardridge upon condition that he pay to said Lewis B. Malone the sum of $1,170, being the sum of $1,060 received by Edmond Hardridge from Malone with interest. The petition then alleges conveyances to the other defendants which are sought to be canceled.
The plaintiff under various assignments of error complains of the sustaining of the demurrer to his petition. The rule is so well established as to need no citation of authority that a demurrer to an answer on the ground that it does not state facts sufficient to constitute a defense searches the record and will reach back to the petition, and, if it be found that no cause of action is stated in the petition the demurrer will be sustained thereto. Sweet v. Boyd, 6 Okl. 699, 714, 52 P. 939.
It remains to be seen whether the petition of plaintiff states a cause of action. It appears from the petition that the defendant Edmond Hardridge is a Creek Indian, and that the lands in controversy were inherited by him from his father, a Creek Indian of the half blood, to whom they were allotted. It further appears from the petition that on May 27, 1911 the defendant Edmond Hardridge was a minor under guardianship. The deed upon which plaintiff rests his title was executed...
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