Franklin v. Ward

• Decision Date: 21 May 1918
• Docket Number: Case Number: 7859
• Citation: 70 Okla. 282,1918 OK 301,174 P. 244
• Parties: FRANKLIN v. WARD et al
• Court: Oklahoma Supreme Court

1918 OK 301

174 P. 244

70 Okla. 282

FRANKLIN v. WARD et al

Case Number: 7859

Supreme Court of Oklahoma

Decided: May 21, 1918

Syllabus

¶0 1. Appeal and Error--Assignments of Error--Sufficiency.

Under the liberal rules of procedure in this court, an assignment of error "that the court erred in rendering judgment for the defendants on the pleading in said case" would be construed to mean that the court erred in rendering judgment on the pleadings, and presents for review the sufficiency of the pleadings to raise an issue of fact, and is sufficient compliance with section 5238, Rev. Laws 1910.

2. Limitation of Actions--Recovery of Real Property--Incidental Relief.

Where the primary purpose of an action is the recovery of possession of real property, and other relief is sought incidental thereto, the fourth subdivision of section 4655, Rev. Laws 1910, fixes 15 years as the limitation in which said action may be brought, and subdivision 3 of section 4657, Rev. Laws 1910, fixing the limitation of an action for fraud at two years after the discovery of the same, does not apply, notwithstanding the incidental relief sought is that a deed obtained by fraud be declared a mortgage.

3. Pleading -- Judgment on Pleadings--Issues of Fact.

Where an issue of fact is presented by the pleadings, it is reversible error to sustain a motion for judgment on the pleadings.

Error from District Court, Tulsa County; Conn Linn, Judge.

Suit by Estelle Franklin against Cora B. Ward and others. From a judgment for defendants on the pleadings, plaintiff brings error. Reversed and remanded.

Lucas & Tabor and Philip Kates, for plaintiff in error.

W. D. Abbott, F. A. Rittenhouse, and Geo. B. Rittenhouse, for defendants in error.

COLLIER, C.

¶1 This is an action instituted on February 11, 1914, by plaintiff in error against the defendant in error, to recover possession of real property described in the petition, and to have a certain mortgage made by plaintiff in error, in form of a deed, given to Cora R. Ward, one of the defendants in error, declared a mortgage, and the plaintiff given the right to redeem said mortgage indebtedness, and also praying for the cancellation of certain deeds recorded against said lands by said several defendants, and for an accounting of the rents and profits derived from said real property by said defendants. Hereinafter the parties will be designated as they were in the trial court. The petition filed in said cause states in substance:

"That plaintiff is the owner of the legal and equitable title to the lands described in the petition, and was and is at all times entitled to the possession of the same. That her title is deraigned as follows: On October 13, 1902, the said land was patented as the homestead allotment to Willie Franklin a Creek freedman, and on July 27, 1908 said Willie Franklin conveyed the said land to this plaintiff by warranty deed That on or before and after the 26th day of August, 1909, Willie Franklin, above named, the husband of this plaintiff, was indebted to Cora B. Ward, or to George Ward, who as the plaintiff believes was then doing business in the name of Cora B. Ward, in a sum the precise amount of which is unknown to this plaintiff, but which did not exceed the sum of $ 35, and that to secure the said debt the said Willie Franklin had given to the said Cora B. Ward, or to George Ward, doing business as Cora B. Ward, a note and mortgage; the mortgage covering, with other things, the crop on the land above described, which was not then owned by the said Willie Franklin, but by this plaintiff. That on the said 26th day of August, 1909, the said George Ward, acting for himself, doing business as Cora B. Ward, or as the agent of Cora B. Ward, came to the land above described, on which the plaintiff then resided and where she then was, and with an officer or alleged officer of the law seized, without warrant or authority, the said Willie Franklin, and threatened to keep him in custody and take him to jail for having given a mortgage on crops on land not owned by him. That this plaintiff was not then in normal condition, being with child, and expecting the child to be born within the next few months following, and being afraid in her condition to stay on the land alone, she having none other than her husband to stay with her, and in addition to her physical condition, which was apparent, and her abnormal mental state, induced by her condition, and the excitement attending the coming of the said George Ward, and her fear for her husband, she was ignorant and unused to business; all of these things being known to the said George Ward, acting for himself, doing business as Cora B. Ward, or as the agent of Cora B. Ward. And the said George Ward, for himself, doing business as Cora B. Ward, or as the agent of Cora B. Ward, then stated to the plaintiff that if she would make a mortgage covering the land above described, her property, in which the name of Cora B. Ward should appear as mortgagee in the sum of $ 70.50, he demanding that an amount in excess of the debt owing by Willie Franklin be included to repay him, as he said for his time and trouble in coming to the land, he would cause the said Willie Franklin to be released, and on that condition alone would he do so. And the plaintiff in great fear promised to execute the said mortgage, and was taken to Tulsa by the said George Ward, and there was taken to the office of Cora B. Ward, and by the said Cora B, Ward and George Ward was compelled for no consideration whatever, and to save and release her said husband, Willie Franklin, from the unwarranted custody in which he was then held by the said Wards, to sign a paper which they stated and which she believed to be a mortgage. And plaintiff was then told by the said Wards, and each of them, that upon her repaying to them, Or to Cora B. Ward, or to George Ward, the amount of the mortgage, the land would be released.

"Plaintiffs say: That there has been recorded in the office of the register of deeds a paper purported to have been signed by her on said 26th day of August, 1909, in form a warranty deed from her to the said Corn B. Ward, conveying to the said Cora B. Ward the land above described. That she does not know whether it is in fact the paper signed by her, she being, by reason of her ignorance and by reason of the conditions surrounding the signing of it, as above set forth, unable to comprehend the contents of the writing which she signed; but that if, in fact, she signed a paper in the form of a warranty deed, it was intended to be, and was, only a mortgage upon the said land taken as aforesaid, and to be canceled upon the repayment by her to the said Cora B. Ward, or George Ward, doing business as Cora B. Ward, of the amount purported to be secured thereby. And immediately after the signing the said paper she returned in haste and fear to her home, and shortly thereafter, within a few days, procured the sum of $ 75 and came to Tulsa, to the office of Cora B. Ward, and then and there tendered her the said $ 75, and offered to repay to her the amount of the loan after the cancellation of the mortgage. But the said Cora B. Ward refused to accept the said money and drove the plaintiff from her office. And the plaintiff then went to the home of her mother in Coweta, to be delivered of her child, and there the child was born on December 19, 1909. That she is ignorant and illiterate, and not versed in business matters; and as soon as she became aware of her right to recover the land above described she proceeded to employ counsel to bring this action. That on the 26th day of August, 1909, the land above described was reasonably worth the sum of $ 1,600. That the defendants are in possession of the above-described land, claiming the same adversely to this plaintiff; and that plaintiff is entitled to the immediate possession thereof. That the defendants have committed and are committing waste on the said premises, by removing large quantities of oil and gas. That she is ready and willing to do equity by returning, or crediting on an accounting, to each of the defendants, whatever sums of money they may be entitled to by law, for money expended by them in and about the said property. That at all times since the said 26th day of August, 1909, she has been and is entitled to the possession of the said land above described, and to the rents and profits therefrom. That she has no adequate remedy at law. That in equity and good conscience the claims of the defendants to the said lands should be set aside.

"The plaintiff prays: (1) That the instrument purporting to be a warranty deed from plaintiff to Cora B. Ward, and that, if declared a mortgage, this plaintiff be decreed the right to redeem the said land by repaying to the said Cora B. Ward the amount of the loan secured thereby with interest. (2) That the defendants, and each of them, be required to answer, setting forth their claims to the said land, or be forever barred from any claim in or to the said land. (3) That the defendants, and each of them, be required to account to the plaintiff for the rents and profits of the said land from the 26th day of August, 1909, and be required to account for all the oil and gas removed therefrom, and to repay to the plaintiff the moneys received by them, or either of them, from the use and occupation of the said land or from the proceeds of any oil or gas removed therefrom, and further be required to account to the plaintiff for the reasonable value of the use of said land for agricultural purposes. (4) That the plaintiff be decreed to have the right to the possession of the said land from the 26th day of August, 1909. (5) That any instruments of record whereby the defendants, and each of them, claim title to the said land, be declared null and void, and that the same be canceled of record. (6) That the title of the plaintiff be quieted as against all persons claiming by, through, or under Cora B. Ward,

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