Likowski v. Catlett

CourtSupreme Court of Oklahoma
Citation1928 OK 146,130 Okla. 71,265 P. 117
Docket NumberCase Number: 18010
PartiesLIKOWSKI v. CATLETT et al.
Decision Date28 February 1928
Syllabus

¶0 1. Jury--Issues Triable by Jury--Ejectment Action Joined with Action to Cancel Deeds.

Where a suit is maintained in the nature of ejectment and joined with an action for the cancellation of deeds of conveyance, held, by reason of section 532, C. O. S. 1921, the cause of action being primarily for the recovery of real estate, the issues of fact were properly triable by a jury.

2. Appeal and Error--Questions of Fact--Conclusiveness of Findings Where Jury Waived.

In such an action, a jury being waived and findings of fact being made by the court and there being competent evidence supporting such findings, the same are conclusive upon any disputed or doubtful question of fact.

3. Deeds--Grantor's Acknowledgment as Adoption of Signature by Another.

Where, in a deed executed in 1910, grantor's name was written by another who signs his own name as a witness to the signature of the grantor together with another witness, the certificate by the notary of grantor's acknowledgment is sufficient compliance with the statute, as such an acknowledgment by the grantor is an adoption of the signature.

4. Insane Person--Capacity to Convey--Persons of Unsound Mind but not Judicially Determined.

The deed of a person whose mind is unsound, but who is not entirely without understanding, made before incapacity is judicially determined, is not void, but voidable and passes title.

Error from District Court, Okfuskee County; John L. Norman, Judge.

Action by Lillie Likowski, as guardian of the person and estate of Sallie Hinton, in the nature of ejectment, joined with an action for cancellation of deeds of conveyance and for accounting, against H. B. Catlett et al. Judgment for defendants, and plaintiff appeals. Affirmed.

Lewis C. Lawson and W. T. Banks, for plaintiff in error.

Phillips, Douglass & Duling and Hagan & Gavin, for defendants in error.

RILEY, J.

¶1 This is a suit at law in the nature of ejectment for the recovery of real property joined under the statute with an action in equity for the cancellation of deeds of conveyance and an oil and gas lease. All defendants in error, defendants below, except A. L. Sanford and Atlantic Oil Producing Company, are nominal parties and have filed disclaimers. The action was brought by Lillie Likowski, as guardian of the person and estate of Sallie Hinton, to recover the southwest 1/4 of the northwest 1/4 of section 35, township 11 north, range 11 east, Okfuskee county, containing 40 acres.

¶2 It was alleged that defendants below had possession of the land and collected the rents and profits, both agricultural and mineral. The prayer was for immediate possession, quieting of title, and accounting. A jury was waived and the cause submitted to the court. The court made the following findings of fact:

"(1) Concerning guardianship of Sallie Hinton--that Sallie Hinton was declared an incompetent person on January 20, 1925.
"(2) That Sallie Hinton is now about 90 years of age, a Creek freedwoman, a citizen of the Creek Nation of Indians duly enrolled, and that the land in controversy was allotted and patent issued to her.
"(3) That on the 19th day of November, 1910, while the owner was in the possession of the lands hereinabove described, the said Sallie Hinton, nee Smith, joined by her husband, Phillip Hinton, executed, acknowledged and delivered to the defendant I. H. Cunningham, a deed, warranty in form, covering said lands, for a recited consideration therein of $ 450, which deed was duly recorded in the office of the county clerk of Okfuskee county, Okla.
"(4) That by mesne conveyances A. L. Sanford became and now is the record owner of the fee-simple title in said lands subject to an existing oil and gas lease executed by Sanford, and subsequently assigned to Atlantic Oil Producing Company. That Sanford is now in open adverse possession of the land subject to the oil and gas lease under which oil and gas is now being produced.
"(5) That the fair and reasonable market value of the fee-simple title and estate in and to said lands on the 19th day of November, 1910, at the time of the execution, acknowledgment and delivery of said deed by said Sallie Hinton and husband to said I. H. Cunningham, was $ 350.
"(6) That the said deed from said Sallie Hinton, nee Smith, and husband, Phillip Hinton, to said I. H. Cunningham, was executed by said Sallie Hinton and Phillip Hinton by mark, but each of said grantors duly acknowledged the execution of said deed before a notary public on the 19th day of November, 1910, in the form and manner as required by the laws of the state of Oklahoma, then in force and effect.
"(7) That the sum of $ 450, recited in said deed as the consideration therefor, was a fair and reasonable value at that time for the fee-simple title and estate in and to said lands, said lands at that time having no known value for oil, gas or other minerals; whether the entire amount of said consideration therefor was paid by said I. H. Cunningham the court is unable to say from the testimony; that the substantial portion of same was paid and said Sallie Hinton received the benefit therefor.
"(8) That Cunningham went into possession of the land under his deed and subsequently conveyed to Freeman who conveyed to Sanford.
"(9) That on the 19th day of November, 1910, and at the time of the execution, acknowledgment and delivery of the aforesaid deed from said Sallie Hinton, nee Smith, and her husband, Phillip Hinton, to said I. H. Cunningham, the said Sallie Hinton and Phillip Hinton were old, ignorant and illiterate negroes, and unused to and unfamiliar with business transactions in general, neither of them being of strong mental capacity, but neither of them being entirely without understanding, and there was no judicial determination of any mental incapacity of said Sallie Hinton until the decree of the county court of Okfuskee county, Okla., on the 20th day of January, 1925, and there is no evidence in the record that there was ever any judicial determination of any mental incapacity of said Phillip Hinton.
"(10) That the defendant A. L. Sanford was and is an innocent purchaser of said lands from said A. W. Freeman for a good and valuable consideration, to wit: the sum of $ 1,500, fully paid, and without notice or knowledge, actual or constructive, of any alleged fraud in the procurement of said deed of November 19, 1910, by said I. H. Cunningham from the said Hintons, or any alleged mental infirmity or incapacity on the part of said Hintons, or either of them, at the time of the execution, acknowledgment, and delivery of said deed to said Cunningham; and that the said defendant Atlantic Oil Producing Company was and is an innocent purchaser of said L. T. Newlon oil and gas lease hereinabove referred to on lands for a good and valuable consideration, fully paid, and without any notice or knowledge, actual or constructive, of any alleged fraud in the procurement of the said deed of November 19, 1910, or any alleged mental infirmity or incapacity on the part of said Hintons at the time of the execution, acknowledgment and delivery of said deed to said Cunningham."

¶3 The conclusions of law made by the court in effect were that A. L. Sanford is the owner of the fee-simple title to the lands involved, subject only to the oil and gas lease executed September 29, 1919, to Newlon and assigned to Atlantic Oil Producing Company. That the oil and gas lease is a valid and existing lease with privileges now obtaining. That plaintiff has no right, title, or interest in or to said lands, and that defendants Sanford and Atlantic Producing Oil Company are entitled to have their titles quieted. Journal entry of judgment was entered accordingly.

¶4 In determining this action it is necessary at the outset that we decide the nature of it, to ascertain whether it is to be measured by the rules applicable to an action at law or equity--for if it be an equity proceeding, this court will weigh the evidence and render the judgment that the trial court should have rendered, whether it be in affirmance or reversal. Fontenot v. White, 115 Okla. 248, 242 P. 854; Schock v. Fish, 45 Okla. 12, 144 P. 584. But if the action be one at law, under the rule applicable, we will not weigh the evidence, but ascertain only whether there is any competent evidence reasonably supporting the judgment, and if such evidence is so found, the judgment must be affirmed. Aldridge v. Anderson, 115 Okla. 131, 240 P. 99; Mitchell v. Gafford, 73 Okla. 152, 175 P. 227; Board of County Commissioners v. Baxter, 113 Okla. 280, 241 P. 752; Okla. Prod. & Ref. Corp. v. Pennok Oil Co., 118 Okla. 170, 247 P. 667; Jackson v. Turner, 107 Okla. 167, 231 P. 290; Myers v. Denison, 104 Okla. 208, 230 P. 742.

¶5 In Mitchell v. Gafford, supra, it was held:

"The fact that the petition in an action for the recovery of real property prays that the title to the real estate sought to be recovered be quieted in the plaintiffs does not make the action a nonjury case, but it remains an action properly triable by jury under the provisions of section 4993, R. L. 1910 (sec. 472, C. O. S. 1921)"

And:

"The judgment of a trial court in an action properly triable by jury has the same force and effect in this court as the verdict of the jury, and where there is competent evidence which reasonably tends to support it, such judgment, though based on conflicting testimony as to an issue of fact, will not be disturbed."

¶6 While appellant argues that the possession of the real estate is a mere incident to the quieting of title, we hold the converse is true. The action is one at law to recover specific real property. The quieting of title as sought by plaintiff below is a mere incident which would have followed a recovery by plaintiff had she prevailed. Word v. Nakdimen, 74 Okla. 229, 178 P. 257; Gill v. Fixico, 77 Okla. 151, 187 P. 474; Lively v....

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