Le Flore v. Steen
| Decision Date | 14 July 1925 |
| Docket Number | 13253. |
| Citation | 251 P. 1022,123 Okla. 84,1925 OK 604 |
| Parties | LE FLORE v. STEEN et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Feb. 9, 1926.
Application to File Second Petition for Rehearing Denied Jan. 18, 1927.
Syllabus by the Court.
In a guardian's sale of real estate at private sale appraisement is necessary before the order of confirmation and where sale is made, under orders of the county court, and deed is executed, and suit is thereafter brought to cancel the deed and sale proceedings, and there is no issue tendered as to the appraisement in the trial court, and the record is silent as to whether or not there was an appraisement before the date of order confirming the sale, in the county court and the question is raised for the first time on appeal, the presumption in favor of the appraisement must be indulged and the record presents no question for this court to consider.
The guardian of a one-eighth Choctaw Indian by blood filed and presented to the county court of Bryan county July 10, 1908, a petition to sell the surplus allotment of said minor for support and investment, and the court made an order on same day finding the sale necessary, and setting August 8, 1908, for hearing the allegations of the petition on the proof, and directing notice to be given as by law provided, and on said date the court made an order of sale authorizing the guardian to sell the land, which was accordingly done, and by the court confirmed, and deed executed. Held, the land described in the petition to sell was subject to the restrictions imposed by the acts of Congress, and which were not removed by the act of May 27, 1908, till July 26, 1908; held, further, that the status of the facts, as they existed and as stated in the petition at the time the petition was first presented to the court and filed, determines the jurisdiction of the court over the subject-matter of the sale proceedings; held, further, the court was without jurisdiction to authorize the sale or to confirm it, and the deed executed by the guardian was void upon the face of the record.
Commissioners' Opinion, Division No. 3.
Appeal from District Court, Choctaw County; E. L. Lester, Special Judge.
Action by Viola Le Flore against C. C. Steen and others, partners, doing business under the firm name and style of R. E. Holmes & Son, to cancel deeds and for possession of land and for rents and profits. Judgment for defendants, and plaintiff appeals. Judgment vacated and reversed for a new trial.
R. H. Stanley, of Hugo, and Ames, Lowe & Richardson, of Oklahoma City, for plaintiff in error.
Calvin Jones and I. R. McQueen, both of Oklahoma City, and A. A. McDonald and A. W. Trice, both of Hugo, for defendants in error.
The plaintiff in error was plaintiff, and defendants in error were defendants, in the trial court, and for brevity they will be referred to herein as they appeared in the trial court.
The plaintiff brought suit against the defendants for possession of the S.W. 1/4 of section 14, Tp. 6 S., R. 13 E., in Choctaw county, for rents and profits and damages, and to cancel a guardian's deed to defendant Phillips, and deed from Phillips to defendant, Steen, and mortgages from Steen to defendants Holmes & Son, and to quiet title.
As grounds for the action, plaintiff alleged: That she was a one-eighth Choctaw Indian, roll No. 13534. That on the 1st day of January, 1908, she was a minor, and reached the age of 18 years in August, 1920. The land in controversy was her surplus allotment patented to her by patent, signed by Chief of Choctaw Nation, August 30, 1905, and Governor of Chickasaw Nation, October 4, 1905, and approved by the Secretary of Interior, November 18, 1905. That her guardian filed petition in Bryan county, where the guardianship was pending, July 10, 1908, to sell her said surplus allotment, and said county court on July 10, 1908, issued notice to hear the petition on August 8, 1908, and, on this date, made a decree of sale directing the guardian to give notice and sell the land at private sale, and thereafter the guardian made the sale for $620. That, at the time the petition to sell was filed and an order to hear the same was issued, the said land was under the restrictions of the Act of Congress, of July 1, 1902, and section 16 thereof, which provided that one-fourth acreage of the surplus allotment was alienable in one year from date of patent and one-half in three years and the balance in five years, and, at the time the petition to sell was filed and the order to hear the same was issued, only one-fourth of said allotment was subject to sale. That the Act of May 27, 1908 (35 Stat. 312), removing restrictions from all her surplus allotment did not become effective until July 27, 1908. That the county court was without jurisdiction to consider the petition to sell at the time the same was filed and was without jurisdiction to issue notice to hear the same on August 8, 1908, and was therefore without jurisdiction to decree the sale on said date.
The defendants admitted the facts of the age and blood of plaintiff and dates and facts of the guardian's sale, and there was no controversy as to the patent, census card, guardian's petition to sell the land, notice of hearing same, decree of sale, return of sale, and order confirming the sale, and guardian's deed and other deeds and mortgages introduced show chain and extent of title, so the question involved became one of law for the court, and, while a jury had been selected to try the facts, the court directed the verdict for the defendants and entered judgment accordingly, and plaintiff brings the case here for review and reversal.
1. There are several assignments of error stated, but plaintiff relies upon only two. The first one is that "the guardian's deed is void because the land was ordered sold at private sale, and the record fails to show that the land was ever appraised." This is a proper statement of the law, if the facts were sufficient to make it applicable. Section 1280, Compiled Statutes 1921, provides:
The appraisement provided for here is held to be mandatory and jurisdictional and applicable to guardian sales. Oklahoma Portland Cement Co., v. Winters, 77 Okl. 36, 186 P. 467. If there was no appraisement of the plaintiff's land before the sale was confirmed, the order confirming and the guardian's deed based thereon would be void, and plaintiff would be entitled to judgment on this ground alone. But, in order to avail herself of this right, the lack of appraisement must affirmatively appear. Welch v. Focht, 67 Okl. 275, 171 P. 730, L. R. A. 1918D, 1163. We have examined the record carefully, and there is nothing in the pleadings or the evidence introduced, or facts admitted, that tends to show there was no appraisement of the land before the sale proceedings were commenced or after they were commenced. We cannot say what the county court's record in the case shows, since it appears that only parts of such record were introduced in evidence, and we are unable to find any proof that an appraisement was not made. We must therefore hold that, while plaintiff's statement of the law is correct in her proposition, there are no facts upon which to base the application of the law as stated.
2. Plaintiff's second assignment is that the guardian's deed is void because the land was inalienable at the time the petition for order of sale was filed, and the court therefore acquired no jurisdiction of the proceedings.
We think it must be conceded, under the undisputed facts in the case, that by the Act of Congress of September 25, 1902, only one-fourth of plaintiff's surplus allotment was alienable at the time her guardian made application to the county court to sell the entire allotment, which was July 10, 1908, and the said allotment was not subject to sale under the Act of Congress of May 27, 1908, until July 26, 1908. The first question is whether or not the petition asking to sell this allotment, which was inalienable at the time, was sufficient to authorize the court to make the decree of sale on August 8, 1908, after removal of the restrictions by Act of May 27, 1908. The question is one of jurisdiction. Referring to the statutes, we find two hearings provided for, without notice is waived. Section 1470, Compiled Statutes 1921, provides:
"To obtain an order for such sale, the guardian must present to the county court of the county in which he was appointed guardian a verified petition therefor, setting forth the condition of the estate of his ward, and the facts and circumstances on which the petition is founded, tending to show the necessity or expediency of a sale."
See Eaves v. Mullen, 25 Okl. 679, 107 P. 433.
Section 1471, Compiled Statutes 1921, provides as follows:
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