Flesner v. Cooper
| Decision Date | 23 January 1917 |
| Docket Number | 7783. |
| Citation | 162 P. 1112,62 Okla. 263,1917 OK 104 |
| Parties | FLESNER v. COOPER. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where in a second or subsequent appeal of the same cause to this court, legal questions are raised which have been decided upon the former appeals, the former decisions of this court in the same case are the law of the case, in so far as they are applicable.
The essential elements of an "equitable estoppel" are First, there must be a false representation or concealment of facts. Second, it must have been made with knowledge, actual or constructive, of the real facts. Third, the party to whom it was made must have been without knowledge, or the means of knowledge, of the real facts. Fourth, it must have been made with the intention that it should be acted upon. Fifth, the party to whom it was made must have relied on or acted upon it to his prejudice. The representation or concealment mentioned, may arise from silence of a party under imperative duty to speak; and the intention that the representation or concealment be acted upon may be inferred from circumstances. Case of Brusha et ux. v. Board of Education of Oklahoma City, 41 Okl. 595, 139 P. 298, L. R. A. 1916C, 233 distinguished.
When an action is not barred by the statute of limitations, the doctrine of laches does not apply where plaintiff does not ask for equitable relief, but only seeks to enforce a plain legal title in a court of law, except in so far as such laches may constitute an element of estoppel.
A resulting trust arises by operation of law upon the intent of the parties, where the legal estate in property is disposed of, conveyed, or transferred, but the intent appears or is inferred from the terms of the disposition, or from accompanying facts and circumstances, that the beneficial interest is not to go to or be enjoyed with the legal title; but the law will not operate upon an intent which involves a fraud upon a third person, or an illegality; and, where a disposition, conveyance, or transfer of real estate is made by general warranty deed, purporting to convey the entire title, it being the intention of the grantor thereby to create a secret trust, with the beneficial interest in himself, for the purpose of defrauding a third party by the appearance of record that the entire title is owned by the grantee, a resulting trust will not arise from such conveyance and intent, and the law will not disturb the legal title, but will leave the parties in the position in which it finds them; and the grantee may set up such fraudulent intent in avoidance of an attempt by grantor to enforce such secret trust.
Rule of this court, as to requisites of showing on motion for new trial on the ground of newly discovered evidence, stated; and held, that motion for new trial in this case meets the rule, and new trial should have been granted.
Commissioners' Opinion, Division No. 3. Error from District Court, Payne County; A. H. Huston, Judge.
Suit by Lou Cooper against Gerd Flesner. Judgment for plaintiff, and defendant brings error. Cause reversed and remanded for a new trial.
Burdick & Wilcox, of Stillwater, for plaintiff in error.
This is a suit between Lou Cooper, defendant in error, as plaintiff, against Gerd Flesner, plaintiff in error, as defendant, filed in the district court of Payne county upon July 25, 1905, for the recovery of an undivided one-half interest in 80 acres of land.
This is the third appeal to this court. See Cooper v. Flesner, 24 Okl. 47, 103 P. 1016, 23 L. R. A. (N. S.) 1180, 20 Ann. Cas. 29, and Flesner v. Cooper, 39 Okl. 133, 134 P. 379. While defendant in error has not filed a brief upon this appeal, on account of the long pendency of the litigation, we have examined with extreme care the entire record and authorities upon both sides of questions raised. Although we have reached the conclusion that the cause must be reversed on the ruling of the lower court upon a motion by defendant for a new trial on the ground of newly discovered evidence, in view of the important possibility that such action may tend to expedite the future termination of the litigation we conceive it to be the duty of this court to determine the law of the case, as presented upon this appeal, in so far as it has not been determined on the prior appeals.
The facts disclosed by the evidence, so far as material here, are as follows:
George W. Gardenhire homesteaded the land in question in 1889, obtaining final receipt from the government upon December 1, 1890. Upon March 2, 1891, George W. Gardenhire and wife executed to their son, Clyde Gardenhire, a general warranty deed to the land, for an expressed consideration of $1,500, though in fact there was no actual consideration therefor. Upon March 24, 1891, Clyde Gardenhire and wife executed to William G. Scott a warranty deed purporting to convey the land; this deed also being without any actual consideration, but having an expressed consideration of $1,800. Neither Clyde Gardenhire nor Scott went into possession of the land, but continued to recognize George W. Gardenhire as the owner; the latter remaining in possession during their tenure of the legal title. There was evidence tending to show that George W. Gardenhire made and procured the execution and recording of these deeds for the purpose of creating the outward appearance that ownership of the land by an innocent third purchaser had intervened so as to eliminate the probability of contests of his entry of the land or action by the government to cancel the entry upon the ground that he (George W. Gardenhire) had entered the territory before the date of its opening to settlement, and his own consequent disqualification to make the entry of the land.
While the legal title stood in the name of Scott, a patent to the land was issued by the government upon February 18, 1892, in the name of George W. Gardenhire, as patentee.
In December, 1894, the courthouse and records of conveyances of real estate of Payne county were destroyed by fire.
Upon January 7, 1895, the said William G. Scott executed to George W. Gardenhire a warranty deed, for a purported consideration of $2,500, but with no actual consideration, purporting to reconvey the title to this land. During the latter part of the year 1899, the plaintiff in error purchased the land from George W. Gardenhire for a consideration of $3,500, $700 having been paid in cash and the balance in installments running through the course of several years, at the time receiving a bond for title. The deferred payments were completed and warranty deed delivered on May 16, 1901.
Jacob Gardenhire, a son of George W. Gardenhire, died intestate in the month of December, 1894, and shortly after the destruction of the county records, leaving as his sole heirs at law plaintiff, his widow, and George W. Gardenhire, his father.
At the trial, it was contended by plaintiff that, at some unknown and undisclosed date, prior to the burning of the county records and after the conveyance by Clyde Gardenhire to William G. Scott, Scott executed to Jacob Gardenhire a warranty deed to the land in question, which deed was contended by plaintiff to have been recorded upon the records of Payne county which were burned in December, 1894. By virtue of this deed, the plaintiff claimed by inheritance from Jacob Gardenhire an undivided one-half interest in this land.
As above stated, Jacob Gardenhire died shortly after the destruction of the county records. George W. Gardenhire became insane shortly before the filing of this suit, and died a short time after the action was instituted and before the first trial. Scott testified that he did not receive or know of any consideration or reason for the execution by him of the deed to Jacob Gardenhire, and only remembered the fact of its execution by himself at the request of one of the interested parties. The death of Jacob Gardenhire and the insanity and death of his father, George W. Gardenhire, removed the only two witnesses who had personal knowledge of the reasons or intentions of the parties in the transaction, and resulted in the loss of all of the original deeds above mentioned as having been executed prior to the destruction of the county records. By mutual concession, secondary evidence was used at the trial to replace the lost original evidences of title.
The records of a local abstracter were introduced and showed the recording upon the burned records of all of the deeds in defendants' chain of title originating prior to the loss of the county records, including: (1) The deed from George W. Gardenhire to his son, Clyde; (2) and the deed from Clyde to William G. Scott (the deed from Scott back to George W. Gardenhire being shown by later county records). But the abstract records did not show the record of a deed from Scott to Jacob Gardenhire.
The deed from Scott to Jacob Gardenhire, and the fact of its having been recorded, were shown as follows, viz.: (1) By the testimony of Scott that he had executed such a deed; and (2) by the testimony of a woman neighbor to Jacob Gardenhire that, shortly before his death, Jacob had shown her an original warranty deed to this land, purporting to have been executed by Scott to him, and bearing an indorsement to the effect that it had been recorded.
It was conceded that George W. Gardenhire, the father of Jacob, was in possession of the land from time of entry, in 1889, till the year 1893, and from the death of Jacob, in December 1894, till the sale and delivery of possession to defendant in 1899. Jacob Gardenhire farmed the land during the years of 1893 and 1894. The conditions of his possession were in controversy. Plaintiff was married to Jacob about three months before his death, and...
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