Elrod v. Adair
| Decision Date | 23 November 1915 |
| Docket Number | 5855. |
| Citation | 153 P. 660,54 Okla. 207,1915 OK 948 |
| Parties | ELROD ET AL. v. ADAIR. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Dec. 21, 1915.
Syllabus by the Court.
The evidence has been examined and summarized in the opinion; and it is held that it is sufficient to warrant the court, in the exercise of its equitable powers, to cancel the deeds made by the guardian to the lands of the minor, and to annul the order of the county court confirming same.
The district courts of this state, in exercising their equity jurisdiction, have the power to vacate and annul orders or judgments of other courts, in a proceeding brought for that purpose, for fraud, inducing and entering into such order or judgment, where such fraud is extraneous to the issues in the proceeding attacked, and especially where the court has been imposed upon by such fraud.
Commissioners' Opinion, Division No. 1. Error from District Court, Nowata County; T. L. Brown, Judge.
Action by Levi C. Adair, a minor, by Samuel Adair his father and guardian against George A. Elrod and others. Judgment for plaintiff, and defendants bring error. Affirmed.
W. A Chase and W. J. Campbell, both of Nowata, Dean S. Benton, of Los Angeles, Cal., and Tillotson & Elliott, of Nowata, for plaintiffs in error.
Alvah C. Hough and W. D. Humphrey, both of Nowata, for defend- in error.
This suit was brought by Levi C. Adair a minor, by Samuel Adair his father and guardian, in the district court of Nowata county, for the purpose of canceling a deed ordered by the county court of Sequoyah county, and the orders of court confirming same, and made to Sam F. Wilkinson, and also, a deed from said Wilkinson to Geo. A. Elrod, in which was conveyed the E. 1/2 of the W. 1/2 of the N.W. 1/4, and the W 1/2 of the N.E. 1/4 of the N.W. 1/4 of section 10; and the S.W. 1/4 of the N.W. 1/4 of the S.E. 1/4 of section 3, all in township 27 north, range 15 east, containing 70 acres, and situated in Nowata county, for the reason and upon the grounds, as alleged, that the sale of said lands and the deeds thereto, and the order of court confirming same, were procured through the fraud, collusion, and contrivance of the said guardian and the said purchasers, by which said fraud the court was imposed upon through the suppression of bidding, through all of which the lands of the minor were sold and conveyed for a sum greatly below their value. The court found in favor of the plaintiff and entered a decree, annulling the deeds, the order of court confirming same, ordering an accounting, into which the amount of consideration paid should be figured, and protecting the rights of the insurance company, which appears to have been treated as an innocent mortgagee. To reverse this decree this appeal is prosecuted, and the grounds chiefly relied upon for reversal are: (1) That the evidence is not sufficient; (2) that the court is without jurisdiction to grant the relief sought; (3) that the guardian participated in the fraud, if any is shown, and that therefore equity will withhold relief. We will consider the points mentioned in the above order.
1. Both the record and the briefs in this case are voluminous; but we will set out here a general summary of the situation presented by the evidence: Both this plaintiff and his father are Cherokee Indians. They lived, and the guardianship was pending, in Sequoyah county. The lands involved were a part of the minor's allotment, situated in Nowata county. Two other minor children, sisters of plaintiff, had allotted lands near or adjoining plaintiff's. The father and mother also had allotted lands adjoining. On March 5, 1910, the guardian and his wife entered into a written contract with Wilkinson for the sale of their own lands, and also for the sale of the lands belonging to the three minors, for a cash consideration of a lump sum of $4,760. The father and mother owned 50 acres each; Levi, this plaintiff, 70 acres; his sister Edna, 60 acres; and Susan 50 acres--making a total acreage to be conveyed, under the contract for the $4,760, of 280 acres. Nothing was said in the contract about how the consideration should be divided; but to give an idea as to how they were to proceed under it, we excerpt the following passages:
After the execution of the contract and the deposits made in the bank as stipulated therein, the probate proceeding was commenced to effect the sale of the lands. Separate petitions were filed for each of the minors, and they proceeded along simultaneously in the county court until June 6, 1910, the initial day for the reception of bids. On that date Wilkinson was in Sallisaw, and Elrod went there for the admitted purpose of bidding on the lands. It seems that Wilkinson met him at the depot, and had several conversations with him, and took him to the bank and trust company and showed him deeds from the guardian and his wife to their own lands. There is some doubt as to whether Elrod was shown the contract above referred to, but the court found as a fact that he was in fact well aware of same, and the evidence and inferences properly deducible therefrom justified the finding. During the day, Wilkinson and Elrod were together at different times in the office of the attorney handling the proceedings. Wilkinson made a bid of $10 per acre for plaintiff's land. Elrod says that he, about the same time, made out a written bid there in the office of the attorney, and thought it was filed. He does not give the amount of the bid, and says that he did not know how much Wilkinson's bid was. However this may be, no bid from Elrod found its way into the hands either of the clerk or the judge of the court. After the meeting between Elrod and Wilkinson, negotiations began between them, which resulted in an agreement, later that evening reduced to writing and signed, and in which contract the following appears:
"Wherefore, said party of the first part agrees to deed upon receiving the guardians' deeds from Samuel Adair, guardian of Levi C. Adair, Susan Adair and Edna B. Adair, all of the above named minors' land and including Samuel Adair, Mary Adair, his wife, their land in fee, and Jennie M. Blair, née Adair, land in fee, for the cash consideration of $25 per acre all around. * * *"
The court ordered the sale to Wilkinson on his bid; and in compliance with his contract, Wilkinson conveyed all the land, both adult and minor, to Elrod. None of these contracts or negotiations between these parties, we are very glad to say, were known to the court. On June 20, 1910 thereafter the sale of these various lands to Wilkinson was confirmed by the county court; and on that day it appears that Wilkinson made payment for the lands in pursuance of his original contract with the guardian for their purchase, and distributed the proceeds, the $4,760, so that Samuel Adair and his wife received for their 100 acres $3,000; the present plaintiff, $700; his sister Edna, $600, and Susan, $500--which sums, added together, make a sum slightly in excess of that named in the original contract prior to the probate proceedings. In other words, the guardian and his wife received $30 per acre, and the minors $10 per acre for their lands. It appears that the lands were of the...
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