John v. Paullin

• Decision Date: 14 September 1909
• Docket Number: Case Number: 202
• Citation: 1909 OK 224,24 Okla. 636,104 P. 365
• Parties: JOHN v. PAULLIN et al.
• Court: Oklahoma Supreme Court

1909 OK 224

104 P. 365

24 Okla. 636

JOHN v. PAULLIN et al.

Case Number: 202

Supreme Court of Oklahoma

Decided: September 14, 1909

Syllabus

¶0 1. APPEAL AND ERROR--Proceeding for Review--Parties. All parties to an action whose interests will be affected by a reversal of the judgment appealed from must be made parties to the appellate proceeding.

2. APPEAL AND ERROR--Time for Commencement of Proceedings--Action by Guardian. An appeal from a judgment against a guardian, in an action prosecuted by him in his own name as guardian, must be commenced within one year after the rendition of the judgment, and all necessary parties to the proceeding must be brought into the appellate proceeding, either by summons in error or by entry of general appearance, within that period, or the appeal will be dismissed.

September, 1909, Decided

Error from District Court, Bryan County; Malcolm E. Rosser, Judge.

Action by Louis Paullin against the Choctaw-Chickasaw Investment Company and others, in which action Hagon John, guardian, intervened. Judgment for plaintiff as against intervener, and intervener brings error. Writ of error dismissed.

This proceeding is from a judgment of the district court of Bryan county, in an action wherein defendant in error, Louis Paullin, was plaintiff, and the Choctaw-Chickasaw Investment Company, a corporation, Elmer Williams, Eli P. Williams, Charles H. Williams, A. P. Banks, Tom Anderson, Maddox, and Thomas were defendants, and Hagon John, guardian, was intervener. Plaintiff, in his petition in the trial court, alleged for his cause of action that one Thomas Loman, a citizen by blood of the Choctaw Nation, on the 21st day of July, 1903, received as a part of his allotment of lands to which he is entitled as an Indian citizen, the E. 1/2 of the N.W. 1/4 and the W. 1/2 of the N.W. 1/4 of section 6, township 7 S., range 9 E. He alleges that on the 23d day of January, 1906, the restrictions upon the power of said Thomas Loman to alienate said lands were removed by the Secretary of the Interior, and that on January 31, 1906, Thomas Loman and wife, for a valuable consideration, conveyed the land to one S. A. Hawk, who, on the 17th day of January, 1907, by warranty deed conveyed the same to E. E. Fuller, and that E. E. Fuller conveyed said land, on the 23d day of February, 1907, to plaintiff; that plaintiff is the owner in fee simple of said land, and entitled to the possession thereof. He alleges that on July 21, 1903, the date upon which the lands were allotted to Loman, Loman made and executed a lease thereon for a period of five years from date to the defendant Choctaw-Chickasaw Investment Company; that on July 1, 1904, Loman executed a second lease for a period of five years from date to defendant Elmer Williams, and on June 17, 1905, he executed a third lease on the same property for the term of five years from date to defendant Eli P. Williams. He alleges that said three leases were in fact owned by one and the same person, and were executed to three separate persons for the purpose of avoiding that provision of the law, which prohibits an Indian citizen from leasing his land for a longer period than five years. He alleges that the defendants Banks, Anderson, Maddox, and Thomas are tenants of the aforesaid defendants, and are now occupying the premises in controversy. He further alleges that at the time of the execution and delivery by Thomas Loman of the aforesaid three leases, Loman was totally without education, being unable to speak or write the English language, was weak-minded, ignorant, and easily influenced; that the defendants to whom said leases were executed knew these facts, and took advantage of the ignorance, want of education, and incapacity of Loman to execute the contract, and by fraud, deceit, duress, and undue influence procured from him the lease contracts for an inadequate consideration. Plaintiff prays in his petition that the lease contracts be declared null and void and be canceled as a cloud upon his title; that he be given judgment for possession of the land, and for rents for the year 1907.

Defendants filed their answer, in which they admit some of the allegations of the plaintiff's complaint and deny others. Plaintiff in error, Hagon John, hereinafter designated as intervener, made application to the court for leave, as guardian of Oscar Loman and Annie Loman, minor children of Thomas Loman, deceased, to intervene in the action, which motion was by the court allowed. He thereupon filed his petition as the duly appointed, qualified, and acting guardian of said minors, wherein he stated that he filed his petition of intervener as guardian of said minors, and for his cause of action against both plaintiff and defendant says that the said Thomas Loman died on the 17th day of June, 1905, leaving him surviving as his sole heirs said minor children; that Thomas Loman, before his death, executed the leases and deeds described in plaintiff's petition, but at the time of the execution of the same by him he was wholly incompetent to understand the nature of the same, and that each and all of said instruments were procured from him by the parties thereto, by fraud, misrepresentation, and undue influence over him, for a wholly inadequate consideration, and that the parties procuring said leases and deeds well knew at the time of the execution thereof that the grantor, Thomas Loman, was incompetent to execute the same. Intervener prayed that the leases executed by Loman to the Choctaw-Chickasaw Investment Company, Elmer Williams, and Eli P. Williams, and the deed executed by Loman to Hawk, and the deed executed by Hawk to Fuller, and the deed executed by Fuller to plaintiff, be canceled as a cloud upon petitioner's title, and for general and special relief.

The trial court found for plaintiff as against the intervener, and dismissed intervener's petition, and found in favor of defendant Eli P. Williams as to the lease executed by Loman to him, holding that the same was a valid lease and in full force and effect, and rendered judgment decreeing that intervener take nothing by his interplea, and that same be...