Horton v. Foley

• Decision Date: 27 November 1923
• Docket Number: Case Number: 12384
• Citation: 1923 OK 1036,220 P. 907,94 Okla. 9
• Parties: HORTON v. FOLEY et al.
• Court: Oklahoma Supreme Court

1923 OK 1036

220 P. 907

94 Okla. 9

HORTON v. FOLEY et al.

Case Number: 12384

Supreme Court of Oklahoma

Decided: November 27, 1923

Syllabus

¶0 1. Pleading -- Motion for Judgment on the Pleadings--Nature.

A motion for judgment upon the pleadings is in the nature of a demurrer. It is in substance both a motion and a demurrer. It is a demurrer for the reason that it attacks the sufficiency of the pleadings; and it is a motion for the reason that it is an application for an order for judgment. Like a demurrer, it admits the truth of all well-pleaded facts in the pleadings of the opposing party.

2. Fraud--Misrepresentation of Law Generally not Actionable.

Plaintiff, vendee, alleged in his petition that after the execution of a contract with the vendor for the purchase of real estate, such vendor caused to be inserted in such contract a clause reserving the oil and gas mining rights in such real estate to the vendor; that vendor falsely stated, referring to such reservation in such contract, that it "made no difference at all." Defendant answered, among other things, denying the fraud. Plaintiff alleged that subsequently he accepted, under protest and subject to his legal rights, a deed from vendor for such real estate containing such reservation and otherwise fully performed such contract. Plaintiff prayed for judgment decreeing such reservation in such deed void, alleging only the fraud of vendor in making such statement. Held, that said statement, to wit, "made no difference at all," even if false and made as alleged, is a statement as to the law and not actionable.

3. Pleading--Judgment on Pleadings--Action for Fraud.

Record examined, and held that under syllabus I above, it was not error for the court to sustain motion of defendant for judgment on the pleadings under syllabus 2 above.

C. E. Castle and E. J. Broaddus, for plaintiff in error.

C. H. Tully, for defendants in error.

ESTES, C.

¶1 Plaintiff in error. John Horton as plaintiff, sued C. E. Foley et al., defendants in error, as defendants, in the district court of Wagoner county. The material parts of his petition follow:

"That on the 23rd day of March, 1918, the plaintiff and defendant, C. E. Foley, entered into a written contract of sale of the said land, whereby the plaintiff agreed to purchase said land, and the defendant, C. E. Foley, to sell said land; that plaintiff paid to said C. E. Foley the sum of $ 600 as a part payment on the purchase price; that there were various terms and covenants in said agreement, and that plaintiff had fully performed and executed all obligations on his part to be carried out under said contract; that a true and correct copy of said contract, marked "Exhibit A," is hereto attached and made a part hereof.

"That in said contract, there appears the following reservation of oil, gas and mineral rights, to wit: 'Oil, gas and mineral rights to be reserved in said deed to grantor, C. E. Foley.'

"That said contract was drawn up, signed and the part consideration of $ 600 paid by plaintiff on said 23rd day of March, 1918, and that nothing was said by the parties thereto about any reservation to C. E. Foley of gas, oil, and mineral rights; and that after said contract had been agreed to, signed and said part consideration paid, the defendant, C. E. Foley took same and had written therein the said reservation, stating to plaintiff that he had left out something and what he had added to said contract pertained to oil and gas rights; that plaintiff told said C. E. Foley that he did not want any oil taken from his land and that he did not want to be bothered with oil workers on his place, and that he wanted to farm; that plaintiff had just come to Oklahoma from Arkansas and from a locality where oil and gas matters are not generally known and understood, and that plaintiff at said time was ignorant and uninformed as to such matters; that plaintiff is illiterate and cannot read or write; that defendant C. E. Foley is a man of large experience, both in general business affairs and in oil and gas matters; that plaintiff made his objections aforesaid and that the defendant, C. E. Foley, assured him that the additional words written in the contract made no difference at all; that plaintiff went onto the said land in Wagoner county and consulted a lawyer in said county about said contract with the additional words therein, and was informed of the rights of the said C. E. Foley under said contract and said reservation of oil, gas and mineral rights, and he then learned that the assurance of said C. E. Foley that the said reservation would make no difference was not the truth.

"That the plaintiff has fully complied with all the terms and conditions of said contract, and that the defendant has executed and delivered to plaintiff a warranty deed to said land, and plaintiff has made notes covering balance of purchase price and interest due, and has given a mortgage on said land to secure the payment thereof.

"That the said warranty deed contains the following reservation: 'But it is expressly understood and agreed that there is reserved and excepted from and not included in the above deals, conveyance or grant, all or any gas and oil or mineral that may be on, in or under said land with full right and privilege to the grantor, his heirs and assigns to develop and operate the same. including the right of entry thereon for any purpose necessary or convenient for the exercise of this right by the grantor, his heirs and assigns';

"That the plaintiff demanded a warranty deed from said C. E. Foley without said reservation, but said Foley refused to make, execute and deliver to him such a deed; and that plaintiff took the said warranty deed containing said reservation objecting and excepting to said reservation and advising the said C. E. Foley that he would seek relief of the courts; that the said deed is filed of record in the office of the county clerk of Wagoner county, Oklahoma, in Record No. 145, on page

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