Cummings v. Inman

• Decision Date: 18 May 1926
• Docket Number: Case Number: 16275
• Citation: Cummings v. Inman, 247 P. 379, 119 Okla. 9, 1926 OK 472 (Okla. 1926)
• Court: Oklahoma Supreme Court
• Parties: CUMMINGS v. INMAN et al.

1926 OK 472

247 P. 379

119 Okla. 9

CUMMINGS v. INMAN et al.

Case Number: 16275

Supreme Court of Oklahoma

Decided: May 18, 1926

Syllabus

¶0 1. Limitation of Actions--Right to Second Action in One Year After Dismissal--Suit by Ward to Cancel Guardian's Deed.

Where an action for the recovery of real property sold by a guardian, commenced by the ward within three years after reaching her majority as provided by section 1496, C. S. 1921, is dismissed without prejudice, a new action may be commenced within one year after such dismissal.

2. Guardian and Ward--Invalidity of Guardian's Sale Six Months After Notice Date. A guardian's sale of real estate at private sale, made more than six months after the day fixed in the notice of sale on or after which the sale would be made, is without notice and void.

3. Same--Lack of Jurisdiction to Confirm Sale. Where the guardian's return of sale shows upon its face that the sale was made more than six months after the day fixed in the notice of sale on or after which the sale would be made, the county court is without power to enter an order of confirmation.

4. Judgment--Presumptions Favoring Validity--County Court's Judgment in Probate Matters. A county court being a court of general jurisdiction in probate matters, every reasonable presumption in favor of the validity of its orders, judgments, and decrees will be indulged, and where the record of the court is silent upon the subject, it will be presumed, in support of the proceedings, that the court inquired into and found the existence of facts authorizing the rendition of a particular judgment But where the record shows to the contrary, the presumption no longer exists.

T. H. Ottesen, for plaintiff in error.

J. C. Denton, J.

H. Crocker, and R. H. Wills, for defendant in error Atlantic Petroleum Corporation.

Warren D. Abbott, for defendant in error Burk-Hoffield Oil Company.

Cheatham & Beaver, for other defendant in error

RAY, C.

¶1 This suit is by a full-blood Creek Indian brought, after reaching her majority, for cancellation of her guardian's deed executed during her minority, for possession, and to quiet title, upon the ground that the sale was in violation of the statutes, and therefore void. William N. Inman and wife, defendants in possession, deraigned title by deed from the purchaser at the guardian's sale. The defendants Atlantic Petroleum Company and Burk-Hoffield Oil Company claimed leasehold interests in the land under oil and gas mining leases from Inman and wife. From an adverse judgment, plaintiff appeals.

¶2 The first question to be decided is whether the action was barred by the statute of limitation. Section 1496, C. S. 1921, known as the three-year limitation statute, is the applicable section. Minehart v. Littlefield, 94 Okla. 249, 222 P. 253. Plaintiff filed suit in the district court of Creek county to recover the land within three years after reaching her majority. That suit was dismissed without prejudice, and the second action, the one now on appeal, was filed within one year thereafter. The contention of the defendants is that, section 1496 being a special statute, section 190, C. S. 1921, which saves to the plaintiff who fails in his case otherwise than upon the merits the right to commence a new action within one year thereafter, does not apply. If that argument is sound, then the present action was barred by section 1496. No case is cited by either party directly in point.

¶3 It has been held by the Kansas court, and by this court, that a suit brought to foreclose a mechanic's lien within the one year statute, applicable in such cases, where plaintiff failed otherwise than on its merits, could be brought within one year thereafter under the provisions of section 190. Seaton v. Hixon, 35 Kan. 663, 12 P. 22; Hobbs v. Spencer, 49 Kan. 769, 31 P. 702; Draper v. Miller, 92 Kan. 275, 140 P. 890; Amsden v. Johnson, 74 Okla. 295, 158 P. 1148; Wheatley v. Riddle, 97 Okla. 218, 223 P. 680.

¶4 Section 182, found in article 11, Procedure-Civil, is a general statute relating to limitation of actions. It provides:

"Civil actions can only be commenced within the periods prescribed in this article, after the cause of action shall have accrued; but where, in special cases, a different limitation is prescribed by statute, the action shall be governed by such limitation."

¶5 In the Minnehart Case it was held that section 1496 was in the nature of a special case within the meaning of section 182, and was therefore not in conflict with any of the limitation sections contained in the procedure act. Section 190; also a part of article 11 of the procedure act, and a general statute, reads:

"If any action be commenced within due time, and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if he die, and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure."

¶6 It will be observed that the language of this section is broad and applies to any action commenced in due time, where the judgment far the plaintiff is reversed, or he fail in such action otherwise than upon the merits and the time limited for the action shall have expired. It being provided by section 182 that, where in special cases a different limitation is prescribed by statute than that prescribed in the general statute relating to limitation of actions, the action shall be governed by such limitation, and section 190, being made applicable to any action commenced within due time, without any limitation placed upon its application, we think it was the intention of the Legislature that it should apply in all cases, including special cases where limitation is prescribed by statute different from that prescribed in the general statute relating to limitation of actions. We, therefore, hold that section 190 is applicable in this case, and that the action was not barred by the statute of limitation.

¶7 Was the guardian's sale void and subject to collateral attack? The order of sale was made February 19, 1910. Pursuant to that order the guardian gave notice, regular in form and duly published, that the land would be sold at private sale at the courthouse on or after March 16, 1910. The guardian's return of sale showed that pursuant to the order of February 19th, he caused public notice to be given that he would sell the land at private sale on or after Wednesday, the 16th day of March, 1910, and that on the 16th day of November, 1910, he sold the land to H. U. Bartlett for $ 504 cash. After due notice the sale was confirmed November 26, 1910. In the order confirming the sale it was recited that the sale was made November 16, 1910.

¶8 The records of the county court disclosing that the guardian's sale was made more than six months from the day fixed in the notice of sale on or after which the sale would be made, it is contended by the plaintiff that the sale was in violation of section 1279, C. S. 1921, which provides that the notice of sale at private sale must state a date on or after which the sale will be made, and the sale must not be made before that day, but must be made within six months thereafter.

¶9 The defendants contend that that portion of section 1279, which provides that in the sale of estates of decedents in administration proceedings, the sale must be made within six months after the day fixed in the notice of sale, on or after which the sale will be made, has no application to, and does not control, the guardian's sale of the ward's land for the reason that section 1479 expressly and specifically provides that such sale may be had within one year after the rendition of the order authorizing and directing the same.

¶10 Section 1478 provides:

"All the proceedings under petition of guardians for sales of property of their wards, giving notice and the hearing of such petitions, granting and refusing an order of sale, directing the sale to be made at public or private sale, reselling the same property, return of sale, and application for confirmation thereof, notice and hearing of such application, making orders, rejecting or confirming sales and reports of sales, ordering and making conveyances of property sold, accounting and the settlement of accounts must be had and made as provided and required by the provisions of law concerning the estates of decedents unless otherwise specifically provided herein."

¶11 Section 1279 is the applicable section, concerning the sale of estates of deceased persons. It reads:

"When a sale of real estate is ordered to be made at private sale, notice of the same must be posted up in three of the most public places in the county in which the land is situated, and published in a newspaper, if there be one printed in the same county; if none, then in such paper as the court may direct, for two weeks successively next before the day on or after which the sale is to be made, in which the lands and tenements to be sold must be described with common certainty. The notice must state a day on or after which the sale will be made, and a place where offers or bids will be received. The day last referred to must be at least 15 days from the first publication of notice, and the sale must not be made before that day, but must be made within six months thereafter. The bids or offers must be in writing, and may be left at the place designated in the notice, or delivered to the executor or administrator personally, or may be filed in the office of the judge of the county court to which the return of the sale must be made, at any time after the first publication of notice, and before the making of the sale. If it is shown that it will be for the best interest of the estate, the court or judge may, by an order, shorten the time of notice, which shall not, however, be less than one week, and may provide that the sale may be made on

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