Freeland v. Dolen
| Decision Date | 11 October 1921 |
| Docket Number | Case Number: 11233 |
| Citation | 1921 OK 351,84 Okla. 286,203 P. 182 |
| Parties | FREELAND et al. v. DOLEN. |
| Court | Oklahoma Supreme Court |
¶0 1. Election of Remedies--Rights of Party--Intent. The general rule is, where a party has the choice between inconsistent or conflicting remedies, the court cannot deny him the right to elect which course he will choose, and where he makes an election, the court has no right to change the cause of action to the other inconsistent theory. However, the general rule is, any decisive act of a party, with knowledge of his rights and of the facts, indicating an intent to pursue one remedy rather than the other, determines his election.
2. Same--Essentials--Evidence of Election. To the proper application of this rule at least three things are essential: (1) There must be in fact two or more co-existing remedies between which the party has the right to elect; (2) the remedies thus opened to him must be inconsistent, and (3) he must, by actually bringing his action, or by some other decisive act, with knowledge of the facts, indicate his choice between these inconsistent remedies. Any unambiguous act consistent with one and inconsistent with others will be deemed conclusive evidence of an election.
3. Damages--Contracts--Penalties and Forfeitures. Contracts providing for penalties and forfeitures are not favored in law.
4. Deeds--Forfeiture for Default in Payments--Right to Lien for Payments Made. From an examination of the record, held: That under the facts in this case the trial court did not err in refusing to declare the deeds void, for the failure of grantee to make certain payments when due, when the deed provided another inconsistent remedy, and the acts and conduct of the defendant were such that it might be reasonably inferred that he had prior thereto elected to pursue the other remedy, and claim a lien upon the land for said payments.
5. Public Lands--Possessory Rights and Title--Validity of Contracts--Homestead Entries. It is a well-settled principle that, unless forbidden by express law, contracts made by actual settlers on government land concerning their possessory rights and the title to be acquired from the United States are valid as between the parties to the contract.
6. Same--Validity of Conveyance--Federal Statute. The provisions of the act of June 28, 1906 (34 St. L. 550), cannot be deemed to have been violated by a lessee who purchased 160 acres of land under and by virtue of said act, and made the first payment thereunder and thereafter conveyed 80 acres of said land subject to all the rights of the government.
7. Judgment--Matters Concluded. The general rule is that a final judgment of a court of competent jurisdiction is conclusive between the parties in a subsequent action involving the same subject-matter, not only as to all matters litigated in a former action, but all matters germane to the issues which could or might have been at issue and determined thereon.
8. Same--Res Judicata--Action to Quiet Title--Former Action to Enjoin Trespass. F. executed and delivered a warranty deed to D. containing the provision that D. should assume and pay certain payments due the United States Government and said payments should remain a purchase lien in favor of grantor, and a further provision that failure to make said payments should render the deed void. Thereafter D. commenced a suit against F. to enjoin F. from trespassing upon the land and cutting the fence. F answered pleading that D had failed to make certain payments due the government and he had paid the same and the same was a lien upon the land, and pleaded a supplemental agreement between the parties whereby it was agreed that F. should have the use and occupancy and possession of the land until the full purchase price was paid. The court rendered judgment denying plaintiff any relief. F. executed an oil and gas lease on said land, and D. commenced an action against the lessee to quiet her title. F. intervened in said suit and asked to have the deed to D. declared void for failure to make certain payments due the United States and pleaded D. had no interest in the land and the former action was res adjudicate. Held, the former action being one for injunction the title was not in issue, and F. having failed to plead in the former action that the failure to make the payments due the government rendered the deed void, that question was not an issue in the former suit, nor could the same have been made an issue unless pleaded by F., and F., having failed to plead or make such question an issue, the plea of res adjudicata is not available to him.
Henshaw & Hough and Womack & Brown, for plaintiff in error.
T. B. Reeder, for defendant in error.
¶1 This action was commenced by Araminta Dolen against R. M. Conway and the Big Anticline Oil Company to quiet title to certain land in Stephens county. The Empire Gas & Fuel Company, N. B. Freeland and Edwin M. Freeland were thereafter by order of the court made parties defendant and the Freelands filed separate answers and cross-petitions; N. B. Freeland claiming 80 acres of said land and Edwin Freeland claiming 120 acres and asking to have the title to the lands quieted in them as against the plaintiff. The title to the land claimed by N. B. Freeland is deraigned as follows: N. B. Freeland on October 23, 1906, pursuant to act of Congress of June 28, 1906, 34 St. L. 550, purchased 160 acres of land and made the initial payments to the government and received his certificate of filing and his receipt for said payment, and before receiving patent, to wit, October 24, 1906, he and his wife made, executed and delivered a warranty deed to the plaintiff to 80 acres of said land, being the land in question, for recited consideration of $ 300 and the deferred payments owing to the United States. The deed was filed for record on the 6th day of November, 1906, with the register of deeds of Comanche county (where the land was situated), and contained the following clause:
"Said Napoleon Freeland and Adelia Freeland, his wife, do hereby covenant and agree that at the delivery hereof they are the lawful owners of the premises above granted and seized of a good and indefeasible estate of inheritance therein, in fee simple and clear of all encumbrances except the payments to be made to the United States Government in the sum of $ 352 and interest, which the grantee assumes and agrees to pay; said sum to be and remain a purchase money lien in favor of the grantor and the full payment thereof by grantee shall be necessary to vest a fee simple title; and the failure to make the payments shall annul and cancel this instrument and that they will warrant and defend the same and every part thereof"
¶2 As to the land claimed by N. B. Freeland, the court found the issues in favor of plaintiff and against the defendants, and decreed the plaintiff to be the owner of the land, and quieted her title against all the defendants except N. B. Freeland, and as to him the court found that on October 9, 1907, he paid $ 114.08 to the United States Government which was assumed by plaintiff and, as provided in the deed rendered judgment in his favor against the plaintiff for said amount, together with six per cent. interest from said date, and declared the same a lien upon said land. From said judgment N. B. Freeland and the Empire Gas & Fuel Company, which has an oil and gas lease upon said land executed by Freeland, have appealed. For reversal it is contended, first: That the payment of the money to the United States Government was a condition precedent, and the title did not vest in Mrs. Dolen until said condition was performed by her, and when such condition was broken and Freeland paid the sum of $ 114.08 due the government October 9, 1907, the deed at once became a nullity and the title remained fixed and absolute in the grantor. The deed by its terms provides two inconsistent remedies that might be pursued by the grantor upon the failure of the grantee to pay the amount due the United States Government. The one remedy gave the grantor a lien upon the land for said amount. The other provided that the failure to make said payments would annul the deed and render it void. These remedies are inconsistent and cannot both be enforced. The grantor at the time of filing his cross-petition herein, which was in the year 1918, sought to have the deed declared void. The trial court refused to grant him this relief, but decreed him the other remedy provided for in the deed, to wit: That he had a lien upon the land for the money paid by him which was assumed by the grantee. The general rule is, where a party has two inconsistent remedies, he has a right to elect which remedy he will pursue, and the court cannot deny him the right to elect which course he will pursue. 20 C. J. 4. This is the general rule, but is subject to certain exceptions. The rule relating to an election of remedies is stated in 20 C. J. 19, as follows:
¶3 If we apply this rule to the facts in the case at bar, Freeland at the time of filing his cross-petition had the right to elect which remedy he would pursue, unless by some decisive act prior thereto he...
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