Jefferson v. Winkler

Decision Date12 July 1910
Docket NumberCase Number: 916
Citation110 P. 755,1910 OK 226,26 Okla. 653
CourtOklahoma Supreme Court

¶0 1. COURTS--County Courts -- Jurisdiction--Title to Land. The county court by reason of section 12, art. 7, Const., has no jurisdiction in a probate proceeding by a guardian for an order of sale of his ward's real estate to hear and determine a claim of a third person to the real estate adverse to the ward.

2. INDIANS--Allotments--Sale by Probate Courts. By reason of sections 1, 2, 6, Act May 27, 1908, c. 199, 35 Stat. 312, pt. 1, the restrictions on the alienation of the allotments of minor freedmen and minor Indians of the Creek tribe of Indians, having less than half Indian blood, are removed, and allotments of such allottees may be sold under the order and supervision of the probate courts of the state.

3. INDIANS-- Allotted Lands--Sales by "Minor." A minor within the meaning of said sections includes males under the age of 21 years and females under the age of 18 years, and the marriage of such a minor does not confer upon him or her the authority to sell his or her allotted lands independent of the jurisdiction and supervision of the probate courts of the state.

Error from District Court, Muskogee County; John H. King, Judge.

Action by Felix L. Winkler against Ed Jefferson, guardian. From an order granting a temporary injunction, defendant brings error. Order reversed, and petition dismissed.

Ed Jefferson, plaintiff in error, was appointed guardian for one Rebecca Moore, a minor Creek freedman, by the United States Court for the Western District of the Indian Territory prior to the admission of the state. She had received through the agency of the Dawes Commission the allotment of land to which she was entitled as a Creek freedman. On the 13th day of May, 1908, she was legally married to one Peter Johnson. On the 21st day of August, 1908, she and her husband executed a warranty deed, conveying to defendant in error that portion of her allotment constituting the land in controversy. About six months thereafter plaintiff in error, as guardian of said Rebecca Johnson, nee Rebecca Moore, filed his petition in the county court of Muskogee county praying for an order of sale, permitting and directing him to sell his ward's allotment. The order of sale was granted. At the hearing on the petition for order of sale, defendant in error appeared, set up his title, and objected to the court's granting the order to sell the land; but his objections were overruled and the order granted. Thereafter defendant in error filed his petition in the district court of Muskogee county, praying for an injunction against plaintiff in error, restraining him from selling said land under the order of the county court. A temporary injunction as prayed for was granted, and it is from said order that this appeal is prosecuted.

A. S. McRea, for plaintiff in error.

M. L. Williams and N. A. Gibson, for defendant in error.

S. T. Bledsoe, amicus curiae.


¶1 (after stating the facts as above). Plaintiff in error first contends that the order of the court below granting the injunction was error, for the reason that defendant in error had an adequate remedy at law by appeal from the order of the county court overruling his objections to the sale and granting the order of sale. This contention is without merit. Defendant in error by his appearance and objection in the county court to the application of plaintiff in error for the order of sale attempted to set up and have adjudicated in that court his claim of title to the land in controversy adverse to the ward of plaintiff in error; but the county court was without jurisdiction to hear and determine this contention, for, by section 12 of article 7 of the Constitution (Snyder's Const., p. 219), it is provided that the county court shall not have jurisdiction in any matter wherein the title or boundaries of land may be in dispute or called in question. The objections made by defendant in error in the county court required that court to try the question of defendant in error's title between him and the ward, which is in violation of the foregoing section of the Constitution. Since the county court was without jurisdiction to give defendant in error any relief in that proceeding, none could be granted by the district court or by this court on appeal from the order of that court. It is well settled that if the court a quo has no jurisdiction of the subject-matter of an action by appeal, an appellate court can acquire no jurisdiction thereof for the purpose of affording relief to the complaining party. Timmins et al. v. Bonner & Long, 58 Tex. 554; Wise v. O'Malley, 60 Tex. 588; In re Estate of Garver v. Richardson, 77 Mo. App. 459.

¶2 The other questions of law involved in this proceeding arise from the contention of defendant in error that the marriage of his grantor, Rebecca Johnson, terminated the guardianship of plaintiff in error, over both her person and estate, and that the act of Congress approved May 27, 1908, entitled, "An act for the removal of restrictions from part of the lands of the allottees of the Five Civilized Tribes, and for other purposes," (Act May 27, 1908, c. 199, 35 Stat. 312), conferred upon her the power to alienate her allotment without the supervision of any court of the state having probate jurisdiction, and that he acquired from her by her deed all of her title to the land described therein.

¶3 At common law the marriage of a female ward to a man of full age terminated the guardianship, both as to her person and as to her estate. Wise v. Norton, 48 Ala. 214; Price v. Peterson, 38 Ark. 494; Swihart v. Shaffer, 87 Ind. 208. The marriage of a male ward, however, at common law terminates the guardianship of his person, but not of his estate. 2 Kent's Comm. 266; 21 Cyc. 51; Woerner's American Law of Guardianship, § 100. The entire question of the effect of the marriage of a ward upon the guardianship is regulated in this jurisdiction by statutory provisions, but the statute does not change the rule of the common law in so far as it applies to the guardianship of the female ward who has married an adult. In some other respects the rule of the common law is changed. Section 1820, Wilson's Rev. & Ann. St., provides that "every guardian appointed shall have the custody and care of the education of the minor and the care and management of his estate until such minor arrives at the age of majority, or marries, or until the guardian is legally discharged." Section 1865 provides that: "The marriage of a minor ward terminates the guardianship. * * *"

¶4 The foregoing sections are parts of an act of the Territorial Legislature approved December 22, 1890. It is apparent that under said sections 1820 and 1865 all guardianships are terminated by the marriage of the ward, and there is nothing in their language to indicate that the legislative intent was otherwise than that the guardianship should be terminated upon marriage both as to the person and the estate of the ward. Section 1820 specifically provides that the care and management of the estate of the ward shall devolve upon the guardian only until such minor arrives at the age of majority or marries. Section 3828, Wilson's Rev. & Ann. St., however, provides that:

"The power of a guardian appointed by the court is suspended only: First. By order of the court. Second. If the appointment was made solely because of the ward's minority by attaining majority. Third. The guardianship over the person of the ward by the marriage of the ward."

¶5 This section constitutes a part of an act of the territorial Legislature approved December 23, 1890. The third clause of this section, in so far as it terminates the guardianship over the person upon the marriage of the ward, is a re-enactment of sections 1820 and 1865, supra. It is silent as to the effect of the marriage of the ward upon the guardianship over the estate. It does not by specific language continue such guardianship or terminate it, nor does the act of which it forms a part by specific language repeal sections 1820 and 1865 or any part thereof. If any repeal is effected, it must be by implication, but repeals by implication are not favored; and, to effect a repeal by implication, the statutes must be in irreconcilable conflict. Since these statutes deal with the same subject- matter and were enacted by the same Legislature at the same session and probably upon the same day, it is to be presumed that they are imbued by the same spirit and actuated by the same policy and they should be construed together so as to harmonize and give effect to their various provisions. Houston & Tex. Ry. Co. v. State, 95 Tex. 507, 68 S.W. 777. Nor does the conclusion that marriage of a minor ward terminates the guardianship and releases the estate of the ward from the control of the guardian render sections 1820 and 1865 inconsistent with section 1840 of Wilson's Revised and Annotated Statutes, which reads:

"When the income and estate under guardianship is insufficient to maintain the ward and his family or to maintain and educate the ward when a minor, his guardian may sell his real or personal estate for that purpose upon obtaining an order therefor."

¶6 This section indicates that some wards may have a family, but it does not necessarily follow that all wards who marry or have families continue wards until they attain their majority. Under the provisions of the statute, guardians for the person and estate of insane persons may be appointed. Such insane persons may be married and have families at the time they were adjudged insane and the appointment of the guardian made; and it was to provide for the maintenance of such persons and their families that the first clause of this section was enacted. If it did not follow from the foregoing sections that the guardianship of the minor is terminated by the marriage of the ward, such would necessarily result...

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