First Nat. Bank of Anadarko v. Orme

• Decision Date: 07 December 1926
• Docket Number: Case Number: 17169
• Parties: FIRST NAT. BANK OF ANADARKO v. ORME.
• Court: Oklahoma Supreme Court

1926 OK 967

256 P. 748

125 Okla. 114

FIRST NAT. BANK OF ANADARKO v. ORME.

Case Number: 17169

Supreme Court of Oklahoma

Decided: December 7, 1926

Syllabus

¶0 1. Appeal and Error--Review and Disposition of Equity Cause. In an equitable cause of action, on appeal to this court, it is incumbent upon the Supreme Court to examine the whole record and this court may affirm the judgment of the trial court or reverse the same and render such judgment as should have been rendered.

2. Appeal and Error--Necessity for Motion for New Trial--Action in Overruling Demurrer to Petition. The action of the trial court in overruling a demurrer to a petition where the defendant has pleaded further will not be reviewed by this court unless it is presented to the trial court in a motion for a new trial. Van Zant et al v. Reed et al., 109 Okla. 88, 234 P. 623.

3. Mortgages--Cancellation for Lack of Mental Capacity in Mortgagor. Whenever there is a great weakness of mind in a person executing a conveyance of land, arising from age, sickness, or other cause, and the mind of the party executing the conveyance has ceased to be a safe guide to her actions, it is against conscience for one who has obtained the conveyance to derive any advantage from such conveyance, and it is a peculiar province of a court of conscience to set such a conveyance aside. That a court of equity will interpose in such a case, is among its best settled principles.

4. Same--Judgment Canceling Mortgage and Note Sustained.

Record examined, and held, the same fully and clearly sustains the judgment of the trial court in finding the plaintiff was of unsound mind at the time of the execution of the mortgage and note, sought to be canceled.

Bailey & Hammerly, Prewett & Wamsley, Lydick & McPherren, and Kittie C. Sturdevant, for plaintiff in error.

Morris, Johnson & Wilhite, for defendant in error.

RUTH, C.

¶1 While Pearl Orme, hereinafter designated as plaintiff, brought her action against the First National Bank of Anadarko, hereinafter called defendant, wherein the plaintiff seeks to have canceled a certain note and mortgage, said mortgage covering her homestead allotment, and to have her title to the lands quieted, and plaintiff alleges that, if she ever executed the note and mortgage, she has no knowledge of her act, as at the time the same purports to have been signed she was of unsound mind and wholly incapable of using discretion in the transaction of her business affairs, and incapable of entering into a binding contract. Plaintiff further alleges fraud in that defendant took advantage of her weakened mental and physical condition and procured her signature to the instruments.

¶2 Plaintiff further alleges want of consideration and that defendant secured her signature to the note and mortgage on November 19, 1923, but withheld it from record until June 13, 1924, and defendant afterwards released the mortgage of record, and thereafter, on August 19, 1924, refiled the same and caused the same to be recorded in the office of the county clerk of Caddo county.

¶3 To the petition defendant filed its demurrer for that there is a defect of parties plaintiff. Upon the overruling of the demurrer, the defendant excepted, and thereafter filed its answer admitting it was a banking corporation and was the owner and holder of the note and mortgage, otherwise denying generally.

¶4 The cause was tried to the court and judgment rendered for plaintiff, and defendant appealed and presents this case for review upon petition in error and case-made.

¶5 The first proposition presented is that this is an equitable cause of action and it is incumbent upon this court to examine the whole record, and if the judgment of the trial court is clearly against the weight of the evidence, this court shall render such judgment as should have been rendered. With this we are in perfect accord and it is useless to cite authorities.

¶6 The next proposition presented is that the plaintiff's husband, O. R. Orme, is a necessary party plaintiff, and the trial court erred in overruling the demurrer of defendant to the plaintiffs petition, citing sections 218, 220, 224, and 268, C. O. S. 1921, providing, in substance that all parties having an interest in the subject-matter of the action and in obtaining the relief sought may be joined as plaintiffs, but if they refuse to join as plaintiff they may be made parties defendant, and that the court may determine any controversies between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights, but when a determination of the controversy cannot be had without the presence of other parties, the court must order them brought in and a defendant may demur to the petition when it appears from the face thereof that there is a defect of parties plaintiff.

¶7 It appears from the record the demurrer was overruled February 2, 1925, and defendant elected to take 20 days to answer, and the petition in error was filed in this court February 4, 1926. In defendant's motion for a new trial the question of the alleged error of the court in overruling the demurrer is not presented, and this court has held:

"The action of the trial court in overruling a demurrer to a petition, where the defendant has pleaded further, will not be reviewed by this court unless it is presented to the trial court in a motion for a new trial." Commercial Investment Trust v. Ferguson, 96 Okla. 163, 220 P. 925; Van Zant et al. v. Reed et al., 109 Okla. 86, 234 P. 623.

¶8 We have examined the very able opinion of this court, delivered by Mr. Justice Harrison in Simon v. Hine, 78 Okla. 224, 190 P. 264, cited by plaintiff in error, but find it is not in point, as in the cited case a reformation of a deed was prayed and the court could not substitute one instrument for another without having before it all parties signing the original instrument, but no such condition obtains in the instant case.

¶9 The third proposition argued by defendant is the question of fraud in procuring the signature of plaintiff and this is so interwoven with the fourth and fifth propositions, to wit, that plaintiff was of unsound mind, and want of consideration, that they will be considered together.

¶10 The record discloses plaintiff, with her husband and four children, were living on plaintiff's homestead allotment in Caddo county. In June, 1923, she was delivered of a child, and afterwards became ill with what the physicians described as "septic multiple neuritis." On September 22, 1923, she was brought to Dr. Postelle's sanitarium in Oklahoma City, where she remained until October 13, 1923. Dr. Postelle testified plaintiff had delusions and hallucinations, that when she heard children's voices coming from the street, she would want to get out of bed and go to them, declaring they were her children, notwithstanding her children were at home more than 70 miles from the sanitarium. In response to a question as to whether her mental condition was such that she could concentrate so as to be able to transact business in an intelligent way, Dr. Postelle answered, "Well, for the first week or two or three she was here, absolutely no." After three weeks at Dr. Postelle's, plaintiff was conveyed to a private residence in a section of Oklahoma City known as Capitol Hill, where she remained for a few days, and then transported to Dr. Hyroop's sanitarium in Oklahoma City, where she remained until November 5, 1923. Dr. Hyroop testified she entered his sanitarium with paralysis in both limbs, paralysis condition of the hips; that her state cf mind was about that of a child 8 or 9 years of age; she could not remember anything; that they would give her a dinner and in a few minutes thereafter she would declare she had no dinner and would want another dinner; that she would object to taking treatment and after they would treat her against her will, she would declare they had not given her treatment and demand another treatment. She would ask for stationery, saying she wanted to write a "big" letter, and after obtaining the stationery, would write perhaps one word and throw the paper away and lie with the pencil in her mouth staring into vacancy; sometimes she would answer intelligently and at other times, when a question was asked, she would just lie there and stare at him. These were daily occurrences. On November 5, 1923, they took plaintiff on a stretcher, put her in a baggage car and transported her to Anadarko and took her to the home of her father-in-law and mother-in-law. Plaintiff was hysterical and cried for her baby, but when they brought it to her she renounced it, declared they had taken her baby and substituted another. After several days and several presentations of the baby, she was finally convinced it was her baby. Defendant argues that a young baby changes so rapidly in appearance that she could not recognize it, but this argument is not convincing. Mothers love is the strongest emotion of which the human heart or soul is capable. Mother's intuition is unerring when her baby is concerned, and we know of no stronger proof of a disordered mind than the repudiation of a baby by a mother who has only been absent from it for a period of six weeks, after having it at her side for three months previous thereto, and who during the separation was constantly crying for her baby.

¶11 During her stay at her mother-in-law's, Dr. Curley called on her, as he had attended her in childbirth. He appeared as a witness for defendant, but testified he treated plaintiff from the time she was delivered of the child in June until she was taken to Dr. Postelle's sanitarium in September, and during the greater part of that time she was delirious, but after she was brought back to Anadarko in November her condition appeared to have improved, and although she suffered intense pain and was helpless and had little use of her arms and hands, he thinks her mental condition was such that she knew what she...