Davis v. Wallace

• Decision Date: 16 October 1934
• Docket Number: Case Number: 22147
• Citation: 169 Okla. 497,37 P.2d 602,1934 OK 523
• Parties: DAVIS v. WALLACE et al.
• Court: Oklahoma Supreme Court

1934 OK 523

37 P.2d 602

169 Okla. 497

DAVIS v. WALLACE et al.

Case Number: 22147

Supreme Court of Oklahoma

Decided: October 16, 1934

Syllabus

¶0 1. Trial--Demurrer to Evidence--Consideration of Evidence Uncontradicted and Favorable to Party Demurring.

In the consideration of a demurrer to the evidence in a law case, the presence of evidence which is uncontradicted and favorable to the demurring party does not require the submission of the case to the jury, but the trial court should consider such evidence in arriving at his decision upon the demurrer to the evidence.

2. Same--Demurrer to Evidence in Equity Case, How Considered.

A demurrer to the evidence in a strict equity case is not a proper proceeding and when offered should be considered by the court is a motion for judgment in favor of the defendant upon the testimony before the court.

3. Appeal and Error--Pleading--Discretion of Court as to Allowance of Amendments During Trial.

Amendments to the pleadings during the l rial may be permitted or denied, at the discretion of the court, and unless the same is abused, the ruling there on will not be disturbed upon appeal.

4. Trial--Demurrer to Evidence of Plaintiff Suing to Cancel Mineral Deeds Held Properly Sustained.

Where plaintiff in an action prays for the cancellation of mineral deeds on the ground of fraud in their execution and discovers before payment that the deeds signed were deeds instead of oil and gas leases and that the deeds cannot be returned because the interests have been conveyed, held, the trial court on a demurrer to the evidence is authorized to consider the undisputed admissions of the plaintiff and the entire record, and commits no error in sustaining the demurrer to the evidence of the plaintiff and dismissing her petition.

Appeal from District Court, Major County; O. C. Wybrant, Judge.

Action by Mary A. Davis against O. O. Wallace and others. Judgment for defendants, and plaintiff appeals. Affirmed.

H. R. Christopher, for plaintiff in error.

Hunter L. Johnson, Floyd E. Staley, and Wedgwood & Houk, for defendants in error.

PER CURIAM.

¶1 This action filed in the district court of Major county, Okla., prayed for the cancellation of certain mineral deeds transferring interests in section 23, township 23 north, range 10 west, in Major county, and sections 12 and 13, township 23 north, range 10 west, in Alfalfa county. The petition alleged fraud and misrepresentation in the execution of said instruments by Mary A. Davis, plaintiff in error. It was alleged that the instruments were executed in blank, and that the plaintiff thought she was signing only oil and gas leases, but found later that she had executed mineral deeds at the same time. She alleged that the printed forms of the oil leases and mineral deeds were so commingled that she was misled in the execution of the mineral deeds.

¶2 The answers of the defendants admitted the ownership of undivided mineral oil and gas rights in said sections above described. They alleged the purchase of the interests with no knowledge of the alleged fraud and misrepresentation and no knowledge of any facts that would put them on notice, and that they were innocent purchasers of said interests for value. They further denied any participation in the alleged fraud. They all claimed to be bona fide purchasers of the interests claimed by them, and prayed that the title to their interests set out be quieted in them as against the plaintiff and her grantees. A reply in the form of a general denial made up the issues in the case.

¶3 At the conclusion of plaintiff's evidence, the plaintiff asked leave to amend her petition to allege other acts of a similar character to be a part of a general scheme to defraud by various acts of misrepresentation and trickery, to which the defendants objected, which objections the court sustained and denied the request to amend the petition.

¶4 The evidence of the plaintiff disclosed that the plaintiff, a widow, Mary A. Davis, had been a school teacher for some time, and had owned 640 acres of land in Major and Alfalfa counties for 30 years; that she had leased the land in both counties for oil and gas previously. On September 8, 1927, one O. O. Wallace, one of the defendants, came to her farm where she and her daughter-in-law were, and was brought to the house by her son who introduced Mr. Wallace to her. He desired to lease her land. He remained in her home for about an hour, and during that time Mrs. Davis signed certain instruments --eight in number--which later proved to be four oil and gas leases and four mineral deeds. Payment was made shortly for three of the leases and four deeds. Later a change in the fourth instrument was desired, and it was sent by the Exchange National Bank of Tulsa to Helena Bank for correction. This was the first time that the plaintiff knew that she had signed any mineral deeds. This was October 25, 1927. Mrs. Davis, on October 25, 1927, wrote one of the defendants, the Provident Royalties Corporation, stating that the mineral deed which had been "assigned" to them from John A. Hooker, another defendant, had no doubt been obtained from the "agent" who had misrepresented matters to her, and that she had learned that it lasted "forever" and wished to get the deed back and remove the cloud from her land.

¶5 This involved the N.E. 1/4 of section 1223-10 in Alfalfa county. The Provident Royalties Corporation offered to return her deed if reimbursed for the amount paid by them for the same. On November 4th, in response to her letter of October 31st, asking return of her oil lease, the Exchange National Bank of Tulsa wrote Mrs. Davis, sending back the cashier's check which she had mailed them. stating her request could not be granted as the lease had been delivered, and that the check was previously sent her as consideration for the lease upon instructions given at the time of the delivery of the lease to it. Mrs. Davis wrote defendant Wallace on November 10th, stating: "I do not object to lease and 1/2 royalty, as I fully understood that, but to mineral deed which you said nothing about until when I signed up it was for minerals." She stated she had not deposited the check on the S.E. 1/4 section 12-23-10, but would see an attorney first, and asked the return of her instruments. On November 25, 1927, the check of $ 160, dated October 26, 1927, above referred to, was cashed by Mrs. Davis as shown by the punched date on the same. Mrs. Davis stated on cross-examination as to her understanding of the term "1/2 royalty:"

"Q. You thought at the time you understood it. What did you think you understood at that time? A. Well, I thought it was half of the eighth. Q. The half of the eighth? A. Yes, sir. Q. The oil and gas lease provided that the lessor or person who owns the lease is to get one-eighth of the oil? A. Yes. (C.-M. p. 108) (Q. You say here, you put that in the present tense, 'I do not now,' after hearing of the mineral deeds, you understood it was royalty? A. No, I understood I had signed a lease and I thought the half royalty was 50 cents I got after the first year. That is what I thought the half royalty was. (C.-M. pp. 109-110). Q. You cashed that, Mrs. Davis, after you learned about the mineral deeds, though? A. Well, I had learned that they couldn't--that it couldn't be changed at that time. It was on record and I learned the business had all gone through and I cashed it, yes. (C.-M. p. 112) Q. And you were to get a dollar an acre for the first year? A. Yes, Q. And then you were to get 50 cents an acre after the first year? A. Yes. Q. That's all. The Court: And you understood that 50 cents meant that word 'royalty'? A. That's what I thought was royalty. That is the understanding I had of what he told me. That's what I meant." (C.-M. p. 116).

¶6 At the close of plaintiff's evidence, the defendants demurred to the same, and the court sustained the demurrer and dismissed the petition. A motion for a new trial was later overruled.

¶7 The brief of plaintiff ill error urges the reversal of the judgment, grouping the assignments of error under three heads as follows. (1) Excluding plaintiff's testimony. (2) entering judgment for defendants on the demurrer- (3) sustaining the demurrer.

¶8 A demurrer to the evidence was recognized al common law and has been used in the practice in Kansas and in Oklahoma for many years, both before and since statehood. 3 Blackstone's Commentaries, sec. 373: Thayer's Preliminary Treatise on Evidence, p. 236. 5 Wigmore on Evidence (2d Ed.) sec. 2495, p. 462- 6 Ency. Pl. & Pr. p. 439; 21 R. C. L. p. 606, sec. 140; 4C. J. p. 904, sec. 2873; Jansen v. City of Atchison (1876) 16 Kan. 358- Kansas Pac. Ry. Co. v. Taylor (1877) 17 Kan. 566; Kansas City, Ft. S. & G. R. Co. v. Foster (1888) 39 Kan. 329, 18 P. 285; Jackson v. Kincaid (1896) 4 Okla. 554. 46 P. 587;Frick v. Reynolds (1898) 6 Okla. 638, 52 P. 391; Shawnee L. & P. Co. v. Sears (1908) 21 Okla. 13, 95 P. 449; St. L. & S. F. R. Co. v. Loftis (1910) 25 Okla. 496. 106 P. 824; Nance v. Okla. Fire Int. Co. (1912) 31 Okla. 208, 120 P. 948. Cameron & Co. v. Henderson (1914) 41) Okla. 648, 140 P. 404.

¶9 The effect of a demurrer to the evidence of the plaintiff is to request the court to determine whether the evidence offered is sufficient to justify the further consideration of the case. The demurrer admits the truth of all competent evidence of the plaintiff. In the consideration of the record on the demurrer, the court may withdraw from consideration all evidence unfavourable to the plaintiff which raises an issue of fact and may restrict it consideration to the evidence favorable to the plaintiff.

¶10 The court may, however, exclude incompetent evidence admitted over the objection of the defendant. Gillett v. Ins. Co. (1894)53 Kan. 108, 36 P. 52. Lee v. Mo. Pac. Ry. Co. (1903) 67 Kan. 402. 73 P. 110; Gernert v. Griffin (1911) 28 Okla. 733, 116 P. 439.

¶11 In Nance v. Okla. Fire Ins. Co. (1912) 31 Okla. 208, 120 P. 948...