Logan v. Brown

• Decision Date: 09 March 1908
• Docket Number: Case Number: 1740 OK Ter
• Citation: 20 Okla. 334,1908 OK 29,95 P. 441
• Parties: LOGAN v. BROWN.
• Court: Oklahoma Supreme Court

1908 OK 29

95 P. 441

20 Okla. 334

LOGAN v. BROWN.

Case Number: 1740 OK Ter

Supreme Court of Oklahoma

Decided: March 9, 1908

Syllabus

¶0 1. LIMITATION OF ACTIONS--Relief on Ground of Fraud--Statute Applies, when. The statutory limitation of the time within which "an action for relief on the ground of fraud" must be commenced only applies when the party against whom the bar of the statute is interposed is required to allege fraud in pleading his cause of action, or to prove fraud to entitle him to relief,

2. TRUSTS--Validity of Oral Trusts. A petition for an accounting for the proceeds of the sale of certain real estate, title to which was placed in defendant under a verbal promise for this purpose is not vulnerable on demurrer on the ground that a parol trust in real estate is declared on.

3. SAME. One who takes title to real property under a parol agreement to sell the same as an agent, and sells it and receives the money therefor, is liable to the grantor for the proceeds.

4. FRAUDS, STATUTE OF--Contracts Performed as to Part Within Statute. The provisions of the statute of frauds or of uses and trusts have no application where the agreement has been completely performed as to the part thereof which comes within the statute, and the part remaining to be performed is merely a payment of the money, the promise to do which is not required to be in writing.

5. APPEAL--Review--Harmless Error--Statement in Order of Reference. Where in a suit defendant denies any liability to plaintiff and any foundation for the suit, but agrees for a reference of the same for trial before a referee, it is not error for the court in its order to state, "it appearing to the court that this is a case involving an accounting," etc., in the absence of any evidence that the referee was influenced in his findings thereby.

6. APPEAL AND ERROR--Presumptions--Oath of Referee--Waiver of Irregularities. Where a record is silent upon the question of a referee having taken an oath as required by law, the presumption will be indulged that such oath was taken, and, even though omitted, it will be held an irregularity only, and waived by a party who proceeds to trial without objection on this point.

Error from District Court, Kingfisher County; before C. F. Irwin, Judge.

Action by Hattie A. Brown against G. H. Logan. Judgment for plaintiff, and defendant brings error. Affirmed.

On June 24, 1901, Hattie A. Brown, who will hereafter be denominated "plaintiff," filed her petition in the district court of Kingfisher county against G. H. Logan, who will hereafter be denominated "defendant," in which she alleged that she was a widow 65 years of age, and sister-in-law to defendant, and that on the 9th day of December, 1896, and for many months prior and subsequent thereto, was sick and infirm in body and mind, and unable both mentally and bodily to attend to her ordinary business affairs. That on said date defendant persuaded her to turn over to him her property and the management of her business and financial affairs, assuring her "that if she would do so he would handle and manage the same, and render her a strict account, and to turn over to her all rents and moneys that he could realize from her property"; and that she, trusting and confiding in him, made him her confidential for the purposes mentioned, and that the relations aforesaid between the plaintiff and defendant, and on the terms and conditions aforesaid, began between them on the 9th day of December, 1896, and continued until on or about the 1st day of January, 1900.

That on January 2, 1897, she executed a deed to the defendant for lots Nos. 21, 22, 27, 28, 29, 30, 31, and 32, in block 39, Oklahoma City, Okla. T.; and that between the 9th day of December, 1896, and the 1st day of January, 1900, the defendant collected rents from the premises mentioned in the sum of about $ 1,200. That, in addition thereto, he collected a judgment in the sum of about $ 500 owned by plaintiff. That on October 4, 1898, he received from Pearl E. Stafford the sum of $ 2,500 for lots Nos. 29, 30, 39, and 32, in block 39, Oklahoma City. That on the 18th day of April, 1899, he received from A. J. Burnham the sum of $ 1,250 for lots Nos. 21 and 22 in block No. 39, Oklahoma City. That on July 17, 1899, he received from Virginia R. Allen the sum of $ 1,200 for lots Nos. 27 and 28 in block No. 39, in said Oklahoma City.

That, during the time the relation above mentioned existed, the defendant had received the moneys of plaintiff from rents, collection of judgment aforesaid, and sales of real estate mentioned, to about the sum of $ 7,650; averring that she was unable to give the exact amount by reason of the fact that he refused to give her any account thereof.

"That on and since the 1st day of January, 1900, the plaintiff has repeatedly asked and demanded of the defendant that he render to her a full and correct account of all her business handled by the defendant as aforesaid, and asked and demanded of him that he turn over to her all moneys held by him as the proceeds of said collections of money had and received by the defendant in the capacity aforesaid, all of which the defendant refuses and neglects to do."

That, since being vested with the authority and the property of plaintiff as aforesaid, the defendant has in no manner accounted to her for money received by him, except the sum of about $ 1,450, the exact amount being unknown to plaintiff, by reason of the fact that defendant refuses to inform her thereof, which sum was used in payment of mortgage indebtedness on her property, and except the further sum of $ 1,400 that the defendant has paid to her in money.

"This plaintiff now avers to the court that the defendant caused her to turn over to him her business affairs as aforesaid, for no other reason than that of cheating and defrauding her out of her property, money, and effects, and that in procuring this plaintiff to so trust him as herein stated the plaintiff in her weak and sick condition was misled by the defendant, and led to believe that he was her friend, and would be her confidential adviser, and would aid her in all possible ways to conduct her business affairs in a careful and economic manner. That, as soon as the defendant obtained possession of her said property and business affairs aforesaid, the defendant at once began to treat the plaintiff in a harsh manner, and when the plaintiff would seek to advise with the defendant about her business matters the defendant would at once fly into a rage and abuse the plaintiff and inform her that it was none of her business what he was doing with her property or what he was doing with her business affairs, and for her to keep her mouth shut and let him alone--that he would neither advise with her as to said business matters, nor allow her to ask him about same."

She then prayed the court to take an account of all the transactions had and done between herself and the defendant, and to compel him to render a full and complete account of all his doings in the matters set forth, and that she take judgment against him for such sums of money as the court finds are due her.

To this petition the defendant filed a demurrer, which was overruled by the court, and to which ruling an exception was saved. He thereafter filed an answer in two counts, the first being a general denial, and the second alleging that the transfer of the real property by plaintiff to defendant was a bona fide transaction between them, and that he paid her a reasonable and fair price for the lots; that the same was true in reference to the assignment of judgment which he purchased at the same time. He further denied that he was in any way indebted to the plaintiff, or that he ever held any of her property as alleged by her.

On March 2, 1903, the court made an order based upon a written stipulation signed by the attorneys of the parties, referring the case to A. H. Huston to try on both law and fact. The reply, which was a general denial under the terms of the stipulation, was filed with the referee.

Thereafter, and in July, 1903, both parties appeared personally and by counsel, at the office of said referee, in the city of Guthrie, Logan county, territory of Oklahoma, and submitted their evidence, consisting of the testimony of themselves and one witness delivered orally, certain documentary evidence, and deposition of witnesses taken on both sides. On this evidence the referee made his findings, the salient and controlling portions of which are as follows:

"That in the year 1896, and prior thereto, plaintiff was the owner of several parcels of real estate in Oklahoma City, Oklahoma county, Okla. T., included in which were lots one (1) and two (2) in block forty (40), and lots twenty-one (21), twenty-two (22), twenty-seven (27), twenty-eight, (28), twenty-nine (29) thirty (30), thirty-one (31), and thirty-two (32), in block thirty-nine (39).

"That the defendant is now, and was at all times mentioned in the pleadings, a brother-in-law of the plaintiff.

"That in the year 1896 the plaintiff, who was then an old lady of about 60 years of age, had become embarrassed with debt and worried over financial matters.

"I find from the evidence, and also from the appearance and demeanor of the plaintiff at the time of the trial, that she was in ill health, exceedingly nervous, and not capable of fairly and intelligently attending to the details of business transactions, and that such condition had existed during all the times mentioned and referred to in the pleadings and evidence in said case.

"That on the 2d day of January, 1897, the plaintiff conveyed to the defendant said lots 21, 22, 23, 28, 29, 30, 31, and 32 in said block 39, Oklahoma City, and that the consideration expressed in the deed was $ 1,500, and that said premises were then of the value of $ 3,000, but that the real purpose of said conveyance was to give the defendant control and management of the said property of the plaintiff in

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