Syllabus
by the Court.
A cause
of action, set up in a cross-bill, must be germane to the
original controversy; and, where a defendant seeks to set up
new and distinct matter, not maintainable under the
provisions of the Code as counterclaim, unless such matter is
involved in a proper determination of the subject-matter of
the original suit, a defendant will be required to litigate
it in a separate action.
Appeal
from District Court, Noble County; Claude Duval, Judge.
Suit by
Norah B. Moore against Petty Johnson and another to quiet
title. Judgment for defendant Johnson, canceling tax deed and
contract, and for defendant Taylor against codefendant
Johnson, reinstating prior judgment, and defendant Johnson
appeals. Reversed, with directions.
RILEY
J.
This
action was commenced in the district court of Noble county
Okl., on August 21, 1919, by defendant in error, Norah B
Moore, hereinafter mentioned as plaintiff, against plaintiffs
in error Petty Johnson and J. M. Taylor, hereinafter
mentioned as defendants, by filing her petition alleging that
she was possessed of a tax deed to the north half of the
northeast quarter of section 35, township 21 north, of range
1 east of Indian meridian, Noble county, Okl.; that J. M
Taylor claimed some right, title, or interest therein; and
that defendant Petty Johnson claimed possession as a lessee
of defendant J. M. Taylor, and praying for the quieting of
title to said property and a writ of possession. Johnson
filed motion to separately state and number, and a demurrer,
both of which were by the court overruled. Johnson answered,
denying generally, and alleging a tender to the county
treasurer of taxes due, in the proper time and manner,
pleading the tax deed to be void, and ownership and
possession of the land in controversy. Johnson further
alleged that his codefendant, Taylor, had obtained from him a
quitclaim deed and contract relating to the lands in
question, but that these instruments were void, being
obtained by fraud and without consideration. Johnson prayed
that title to the land be quieted in him; that the tax deed
be set aside, and also the quitclaim deed from defendant
Johnson to Taylor be set aside. Plaintiff, Moore, filed a
demurrer to the answer of Johnson, which was overruled, and
on June 7, 1921, J. M. Taylor filed his answer and
cross-petition, stating that he made no defense to the tax
deed of plaintiff, Moore, as alleged, or to her title to the
land claimed, but, in case this issue was decided against
plaintiff and in favor of codefendant, Johnson, then
defendant Taylor claimed superior title to said lands as
based upon a quitclaim deed and contract from Johnson, and,
in the event of this issue being lost to him, defendant
Taylor claimed right to a judgment against his codefendant,
Johnson, by reason of a prior judgment rendered in a case in
said court wherein one Lynch was plaintiff and Petty Johnson
and Angelia Johnson were defendants, and wherein one Schwint
intervened, securing judgment against Petty Johnson and
Angelia Johnson, his wife; said judgment being assigned to
Moore and from Moore to said Taylor. Taylor prayed in the
last alternative that the Schwint judgment be reinstated,
declared a lien upon the premises, and that the land be sold
to satisfy said judgment lien. Johnson filed a demurrer to
the cross-petition of Taylor; the same being overruled and
exceptions saved. Whereupon Johnson filed a "reply"
answer and cross-petition, praying that title be quieted in
him, and plaintiff Moore filed a general denial.
The
issue thus joined was tried to the court. Upon request, the
court made the following findings of facts:
"(1) That the defendant Petty Johnson was the homestead
entryman of the north half (N. 1/2) of the northeast quarter
(N. E. 1/4) of section thirty-five (35), township twenty-one
(21) north, of range one (1) east of I. M., in Noble county
Okl., and has ever since been in possession thereof.
(2) That on or about April 29, 1908, a judgment was entered
in the district court of Noble county against said Petty
Johnson for something like $1,375.95, with interest thereon
at the rate of 12 per cent. per annum, and for attorney fee
in sum of $125 and for foreclosure of a mortgage on the
above-described land, and in favor of one Schwint.
That afterwards this judgment was assigned to one S. A.
Moore, who on July 10, 1910, obtained the issuance of an
order of sale of the above-described property, and the sale
thereunder was confirmed by the district court, but this
confirmance of sale was set aside by the Supreme Court on the
ground that no appraisement of the land had been made.
(3) Afterwards the said S. A. Moore, who was the husband of
the plaintiff in this action, assigned said judgment to the
defendant J. M. Taylor, who afterwards had another order of
sale issued, and caused said land to be sold on February 14,
1914, the said J. M. Taylor becoming the purchaser thereof,
and which sale was confirmed by the district court. From this
action the defendant Petty Johnson appealed to the Supreme
Court, and on or about October 9, 1917, the Supreme Court
affirmed the action of the district court, whereupon Petty
Johnson filed a petition for rehearing, which was in 1918
denied; and thereupon the defendant Petty Johnson filed a
second petition for rehearing, which was denied at first, but
later reconsidered by the Supreme Court and allowed, and the
mandate affirming the lower court was recalled, and the
judgment of the lower court affirming the sale was reversed,
and the case sent back for further proceedings in accordance
with the decision.
(4) At the time this action was pending in the Supreme Court,
Mr. H. A. Johnson was attorney for Petty Johnson, and the
wife of H. A. Johnson was surety on the appeal or supersedeas
bond of Petty Johnson, and, prior to the last action of the
Supreme Court, Mr. Johnson and his client then believing that
the Supreme Court would likely adhere to its previous
decision, and Mr. Johnson being anxious to have the surety
relieved of liability on the bond, in the event there should
be a liability, but being desirous also that the records and
decisions in the case be in accord with his view that the
action of the district court confirming the sale was
erroneous, induced his client after much persuasion to sign
the contract between Petty Johnson and J. M. Taylor which
purported to settle and adjust the differences between them;
the same being dated March 28, 1918, and in which contract it
was, among other things, agreed that the said Petty Johnson
would deed this land to J. M. Taylor, subject to all taxes
and tax assessments, and, as a consideration therefor, the
defendant J. M. Taylor agreed to confess the then pending
petition for a rehearing in the Supreme Court, whereupon the
plaintiff in error would then dismiss the case (appeal). A
quitclaim deed to this land was signed by Petty Johnson at
same date of the contract conveying the land, as provided in
the contract, to J. M. Taylor, and left in the custody of H.
A. Johnson, attorney for Petty Johnson.
(5) The defendant Petty Johnson is and was at that time an
aged, uneducated negro man who believed then that the
positive result of his failure to sign the contract and deed
would be his early ejectment from the land, and at that time
his attorney, H. A. Johnson, also felt that their chance to
win the suit was slight, but this court finds from the
admissions of Mr. H. A. Johnson, as a witness in this case,
that he was prompted to induce his client to sign the
contract and quitclaim deed by the realization that if the
case was affirmed his wife would be liable on the bond, and
that the said H. A. Johnson did for these reasons use
considerable coercion and undue persuasion (although done in
good faith at the time) to induce Petty Johnson to sign the
contract and deed. The defendant J. M. Taylor through his
attorney Mr. Cress also joined in this undue persuasion, but
did not use the extreme measure or language to which Petty
Johnson testified. And although this contract and deed were
turned over to the defendant J. M. Taylor, by H. A. Johnson,
it was done without that free will and understanding on the
part of Petty Johnson which should accompany the delivery of
such instruments in matters of such grave importance to him.
(6) After this contract was signed, for some cause which is
not clear from the evidence, Mr. Taylor and his attorney, Mr.
Cress, failed to confess the petition for rehearing in the
Supreme Court, whereupon H. A. Johnson, attorney for Petty
Johnson, became alarmed over the situation, and again went
before the Supreme Court and argued his last petition for
rehearing to the Supreme Court, and thereby obtained a
favorable decision reversing the district court and setting
aside the sale and confirmation
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