Hope v. Bourland

• Decision Date: 09 September 1908
• Citation: 98 P. 580,21 Okla. 864,1908 OK 165
• Parties: HOPE v. BOURLAND.
• Court: Oklahoma Supreme Court

98 P. 580

21 Okla. 864, 1908 OK 165

HOPE v. BOURLAND.

Supreme Court of Oklahoma

September 9, 1908

Syllabus by the Court.

Where in a suit to reform a deed, a consent order was entered appointing a special master "to hear the evidence and decide all the issues between the parties, and make his report to the court, stating his findings, both of fact and law," such finding of facts should be given the same conclusiveness as the verdict of a jury or the finding of facts by the court sitting as a jury, and will not be disturbed when reasonably supported by the evidence.

[Ed Note.-For other cases, see Appeal and Error, Cent. Dig. § 4006; Dec. Dig. § 1018. ^[*]]

Where in a suit to reform a deed on the ground that the description erroneously included certain land intended to be reserved, where the findings of facts show that no fraud existed; that the grantee had contracted for, and intended to buy, the land included within the boundaries described in the deed, without reservation; that it was not clear that the grantor intended to make such reservation at the time of the execution and delivery of the deed, but that it was her intention "to convey, and the intention of the grantee in said deed to receive and pay for, all the lands described in said deed"-the mistake, if any, was not mutual, and the decree of the trial court reforming such deed was erroneous.

[Ed. Note.-For other cases, see Reformation of Instruments, Cent. Dig. §§ 74-78; Dec. Dig. § 19. ^[*]]

Error from the United States Court for the Southern District of the Indian Territory, at Ada; Joseph T. Dickerson, Judge.

Action by Tom Hope against Frances Bourland. Judgment for defendant, and plaintiff brought error to the United States Court of Appeals in the Indian Territory, whence the cause was transferred to the Supreme Court of the state of Oklahoma. Reversed and remanded, with instructions.

On April 24, 1905, Tom Hope, plaintiff in error, plaintiff below, filed his complaint in equity against Frances Bourland, defendant in error, defendant below, in the United States Court for the Indian Territory, Southern District, at Ada, and secured an order enjoining her and others from removing a certain barn from certain lands described in the complaint. On October 31, 1905, he filed an amended complaint, alleging, in substance, that the defendant, Frances Bourland, had conveyed to him, by authority of the Secretary of the Interior, under an act of Congress, March 3, 1903, the 134.89 acres of land set forth in the original complaint; that there was no reservation in said deed, except for the right of way and station grounds of the Texas & New Orleans Railway Company, on which said land the barn mentioned in the original complaint was situated; that the defendant unlawfully claimed and occupied a part of the land so conveyed by her, consisting of three acres (describing it), and claimed title thereto; that defendants had removed said barn from said tract of three acres, the property of plaintiff, and were about to remove same upon other lands, of which the defendant was the owner; that by reason of the unlawful acts of defendants, plaintiff had been damaged in the sum of $400, and prayed for the possession of said three acres of land, and for said damages and for a perpetual injunction. To this defendants filed demurrer and answer, and by way of cross-complaint defendant in error, Frances Bourland, alleged that she is a member of the Chickasaw tribe of Indians, and that the land described in the complaint is a portion of her allotment as a member of said tribe. She admits the execution of the deed mentioned in the complaint, but avers that it was executed in carrying into effect the terms of a written agreement made by her with plaintiff, Tom Hope, and his then associates, W. L. Byrd and Otis L. Weaver; that in said written agreement she undertook to convey to the plaintiff and his associates a portion of her allotment conveyed by said deed, save and except a three-acre tract of land, upon which was situated her dwelling house and other improvements; that if said three-acre tract was described in said deed, it was so included by mistake or fraud of the plaintiff in representing to her, at the time of its execution, that the same was in accordance with said agreement; that she has been in possession of said three acres, holding and claiming the same for the past 20 years, and adversely to plaintiff since the execution of said deed; that the order of injunction was unlawfully issued, by reason of which she has suffered damage in the sum of $1,000 and exemplary damages in the sum of $5,000 and prayed for a reformation or cancellation of said deed to the end that whatever title to said three acres was thereby vested in plaintiff be reinvested in her, and that the order of injunction be dissolved. Frank Jones, John W. Byrd, E. W. Hardin, Otis B. Weaver, W. A. Alexander, and T. J. Chambess are made parties and adopt the pleadings of the plaintiff. After issue joined a consent order was entered, appointing W. R. Blakemore as special master to hear the evidence and decide on the issues between the parties and make his report to the court, stating his finding, both of fact and of law, which he did on March 17, 1906, in effect, finding the issues in favor of plaintiff. On June 22, 1906, the cause coming on to be heard, the court set aside the report of the master, dissolved the injunction, gave judgment against plaintiff and his sureties on the injunction bond for $200 damages, taxed him with the costs, and ordered a reformation of the deed, from all of which plaintiff took a writ of error to the United States Court of Appeals in the Indian Territory, and the same is now before us for review as successor of that court.

Clinton A. Galbraith, Tom D. McKeown, Henry M. Furman, and A. M. Claxton, for plaintiff in error.

Duke Stone, for defendant in error.

TURNER J.

The question for us to determine is whether or not the court erred in setting aside the report of the special master, and in rendering judgment in accordance with the prayer of the cross-complaint. This report was more than advisory to the court. It will be observed that the special master by consent was directed "to hear the evidence and decide on the issues between the parties and make his report to the court stating his finding, both of fact and of law." Such a reference gives to the finding of fact in this case the same conclusiveness as the verdict of a jury, or the finding of fact by the court sitting as a jury. Greenhaw et al. v. Combs, 74 Ark. 336, 85 S.W. 768. This reference is almost identical with that in the case of Kimberly v. Arms, 129 U.S. 512, 9 S.Ct. 355, 32 L.Ed. 764, where the court said: "By the consent in the case at bar it was intended that the master should exercise power beyond that of a reporter of the testimony. If there had been such a limitation of his authority, there would have been no purpose in adding to his power 'to hear the evidence' the power to 'decide all the issues between the parties and make his report to the court, separately stating his findings of law and of fact' together with the evidence. *** We are therefore constrained to hold that the learned court below failed to give to the findings of the master the weight to which they were entitled, and that they should have been treated as so far correct and binding as not to be disturbed, unless clearly in conflict with the weight of the evidence upon which they were made." In Davis v. Schwartz, 155 U.S. 631, 15 S.Ct. 237, 39 L.Ed. 289, the court, in speaking of a report under a similar reference, said: "*** But so far as it depends upon conflicting testimony, or upon the credibility of witnesses, or so far as there is any testimony consistent with the finding, it must be treated as unassailable"-citing authority. The Supreme Court of Arkansas, under whose chancery practice this case was tried, it having originated and been tried in the Indian Territory prior to the adoption of the Constitution, in speaking of the weight and effect to be given to the report of a special master under a consent reference, as in this case, in Greenhaw v. Combs, 74 Ark. 336, 85 S.W. 769, after adopting the rule as laid down by the Supreme Court in the preceding case, said: "Where there is any testimony legally sufficient to support such findings, they will not be set aside." Th...