Int'l Land Co. v. Marshall

Decision Date24 November 1908
Docket NumberCase Number: 814 Ind Ter T
Citation1908 OK 243,98 P. 951,22 Okla. 693
PartiesINTERNATIONAL LAND CO. v. MARSHALL.
CourtOklahoma Supreme Court
Syllabus

¶0 1. EQUITY--Clean Hands. Equity will refuse to lend its aid in any manner to one seeking its active interposition who has been guilty of any unlawful or inequitable conduct in the matter with relation to which he seeks relief.

2. INFANTS--Conveyances--Avoidance--Return of Consideration. Where a party fraudulently represents that he is over 21 years of age, when in fact he is only 19 years of age, and such false and fraudulent representations, in connection with his appearance and size, being believed, by means of a deed then and there executed and delivered by him he on account of such fraudulent representations obtains the sum of $ 125 as a part of the consideration therefor, such party grantor whilst in possession of the land described in such deed will not be permitted to invoke the aid of equity to have such deed cancelled, although it may be absolutely void, without offering to refund the amount of money so fraudulently obtained.

3. SAME. Although the injured party may have had prior notice that such party was under age, yet if he believed such false representations, which were fraudulently and intentionally made by such party grantor, and, relying thereon, parted with a consideration as result thereof, such party grantor, although the other party may not have exercised reasonable care, will be refused the aid of equity to cancel such deed, though it may be absolutely void, unless he offers to refund the amount of money thus wrongfully obtained. Kane, J., dissenting.

Appeal from the United States Court for the Western District of the Indian Territory.

Action by Joseph Marshall, by his next friend, Jeff Marshall, against the International Land Company. Judgment for plaintiff, and defendant appealed to the United States Court of Appeals of the Indian Territory, whence the cause was transferred to the Supreme Court of the state of Oklahoma. Reversed and remanded.

On the 29th day of December, A.D. 1905, the appellee, a minor, by his next friend, Jeff Marshall, as plaintiff, instituted this action in the United States court for the Western district of Indian Territory, at Muskogee, against the appellant, as defendant, alleging in his complaint that the said plaintiff was a minor under the age of 21 years, and brought said action by and through his father and next friend, Jeff Marshall: that on or about the 26th day of December, A.D. 1905, he was a minor, being 18 years of age, and a citizen of the Creek Nation, and as such there was allotted and patented to him certain described real estate; that on said date the said plaintiff endeavored to borrow some money from the defendant, through C. M. Bradley, its president, and offered to give a mortgage on 40 acres of said land as security therefor, and the defendant, through its said president, informed said plaintiff that it would let him have $ 125, and would take a deed to 40 acres of said land, with the understanding that plaintiff should have the privilege of returning said money and the defendant would reconvey said land to him; that thereupon the said plaintiff accepted said proposition, and executed what was thought to be a deed, conveying 40 acres of said land, and delivered same to the president of said defendant company, and that the said defendant paid to said plaintiff the said sum of $ 125; that soon after plaintiff received said sum of money and executed said deed to the defendant, conveying as he thought 40 acres of land, he discovered that said defendant had taken a deed to all of said land, being 120 acres; that immediately plaintiff tendered back to said defendant the said sum of $ 130 in lawful money, and demanded the reconveyance to him of said land, the said sum of money being sufficient to pay all interest and cost of the executing and recording of the deed, and the said defendant refused to accept said sum of money, and refused to reconvey said land to said plaintiff; that the defendant well knew at the time of the execution of said deed, and before the same was executed, and before the defendant had paid the plaintiff said sum of money, that said plaintiff was a minor, and had no authority to convey said land. Plaintiff then and there in open court tendered to the defendant the sum of $ 130, alleging that said deed was duly recorded on the 27th day of December, A. D. 1905. in the record of deeds at Wagoner in said district, and said deed is a cloud upon his title. Plaintiff prays for a decree, to the end that the defendant be directed to make and deliver to him a good and sufficient deed, reconveying to him all of the said described land, and, in the event that the defendant fails or refuses to do so, that a commissioner be appointed by the court with full power to act, and that he be instructed to convey all of said land by good and sufficient deed to said plaintiff.

On the 10th day of January, A. D. 1906, the defendant answered, denying that plaintiff is a minor under the age of 21 years, and that he was under the age of 21 years on the 26th day of December, A. D. 1905, and that he did at the time alleged in the complaint endeavor to borrow money from the defendant, through its president, and that in such endeavor offered to give a mortgage on 40 acres of said land, and that defendant, through its president, agreed to loan plaintiff the sum of $ 125, and as security therefor to take a deed to such land, with the understanding that the plaintiff was to have the privilege of returning said money, upon which the defendant would reconvey to him said forty acres of land, and that any such proposition was made and accepted for a loan of $ 125 to the plaintiff, and that in drawing up the papers 120 acres, as alleged in the complaint, was covered and included by the deed when under the agreement only 40 acres should have been conveyed, and denies that said plaintiff offered to redeem said land, or any part of it, by paying back or tendering to it the amount he had received from said defendant as part payment under the deed executed by Joseph Marshall to the defendant, conveying to it 120 acres of land, described in the complaint, which defendant admits was allotted to said plaintiff. Defendant denies that at the time the transaction occurred between it and the plaintiff, at which time the defendant received a deed to the land mentioned in the complaint from plaintiff, its president, C. M. Bradley, acting for it, knew or had knowledge and belief that said plaintiff was a minor under the age of 21 years. Defendant admits that said deed executed and delivered to it by the plaintiff on December 26, 1905, was filed and recorded at Wagoner, in the Western district of the Indian Territory, but denies that said deed is any cloud upon the plaintiff's title.

For further answer, defendant avers that under the allegations of the complaint, to the effect that plaintiff is a minor under the age of 21 years, and was at the time he made said deed on December 26. 1905, this suit cannot be maintained by him through a next friend, because his right to disaffirm and set aside a transaction of the character alleged does not accrue until his majority. Defendant pleads that it paid the plaintiff, Joseph Marshall, the sum of $ 375 on the representation of said Joseph Marshall that he was of age, and had a right and capacity to transfer and convey his land, which the defendant, through its president, C. M Bradley, believed to be true, and, acting upon such belief, paid to said plaintiff the said sum of $ 375 which defendant avers and pleads said plaintiff should refund before he can ask equity in this court; that on December 26, A.D. 1905, the defendant, through its president, C. M. Bradley, purchased lots 3 and 4 and the southeast quarter of the southwest quarter of section 31, township 16 north, range 17 east, in the Creek Nation, Ind. T., from the plaintiff. Joseph Marshall, and agreed to pay him therefor the sum of $ 1,400; that under said agreement it did upon that date pay said plaintiff the sum of $ 125, and execute and delivered to him a duebill for the sum of $ 1,275; that it paid the said plaintiff the sum of $ 250, which was credited on said duebill as a partial payment on said land; that said plaintiff appeared to be 21 years of age at the time this contract and deed was made; that he positively and assuredly made the statement to said C. M. Bradley that he was 21 years of age, and had capacity to enter into said contract and execute said deed, upon which representations and statements of said plaintiff the defendant, by and through its said representative, paid to said plaintiff the said sum of $ 375, believing the transaction to be valid, and believing the statements made by the plaintiff were true as to his age; that, on account of the said representations and assurances made by plaintiff as to his age, he should not be allowed to repudiate and disaffirm said contract in a court of equity without first doing equity by paying back to said defendant the said sum of $ 375, paid to him upon said statements, which if untrue were fraudulent. Defendant further pleads that if the plaintiff is a minor, and was such on December 26, A.D. 1905, being less than 21 years of age, he cannot repudiate and disaffirm said deed executed and delivered by him to said defendant because of his minority at the time the suit is brought.

Said cause was referred to a master to take testimony, and to report his findings and conclusions as to both fact and law, and on the 23d day of June, A.D. 1906, the cause was heard on the exceptions to the master's report theretofore filed, and the court confirmed the same in all respects, and rendered a decree as prayed for by plaintiff, to which action of the court the defendant saved its exceptions.

In due time an appeal was taken to the United States Court of Appeals for the ...

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