Long v. Shepard

• Decision Date: 17 January 1913
• Citation: 130 P. 131,35 Okla. 489,1913 OK 44
• Parties: LONG v. SHEPARD.
• Court: Oklahoma Supreme Court

130 P. 131

35 Okla. 489, 1913 OK 44

LONG v. SHEPARD.

Supreme Court of Oklahoma

January 17, 1913

Rehearing Denied Feb. 5, 1913.

Syllabus by the Court.

It is not good practice, unless so required by statute, to make a mere exhibit a part of the petition.

(a) It is better to make a direct statement of the facts in the order in which they occur; this being the orderly method a good pleader will observe.

(b) However, when an exhibit is made a part of the petition although not required by statute, and the other allegations in said petition, when taken in connection with the contents of the exhibit, state a cause of action, reference may be had to such exhibit, in order to determine whether a cause of action has been stated to such an extent as to withstand a general demurrer.

(c) Though an instrument may not be required by statute to be attached as an exhibit, yet if it is attached as a part thereof, and its execution is alleged in the petition, and its substance therein pleaded, so far as necessary and applicable to the cause of action sued on, and its execution is not denied under oath on the trial, its execution will be taken as admitted.

When under the allegations of the petition and the admissions in the answer, the plaintiff is entitled to judgment on the pleadings, it is error to deny a motion made for such purpose.

When under the pleadings, it is averred that L., by a clause in a deed executed prior to the Act April 26, 1906, c. 1876, § 19, 34 Stat. 144, and before the restrictions were removed from the allotment of the grantor, wherein it was stipulated in said deed that said grantor agreed "to execute a good and sufficient deed of conveyance to said defendant for said eighty acres of land when his restrictions upon the power to alienate said land were removed," and said written contract is attached to the petition as a part thereof, and its execution is not denied, and it is further averred that after removal of restrictions said L. executed to S. a deed to said 80 acres of land, pursuant to said stipulation, said deed, as to said 80 acres of land, is void; and judgment to that extent should have been entered on the pleadings, upon motion, in favor of L.

Error from District Court, Hughes County; John Caruthers, Judge.

Action by Daniel A. Long against John E. Shepard. Judgment for defendant, and plaintiff brings error. Reversed and remanded with directions.

C. Dale Wolfe and Willmott & Wilhoit, all of Wewoka, for plaintiff in error.

Rogers & Harris, of Wewoka, and Crump, Skinner & Bailey, of Holdenville, for defendant in error.

WILLIAMS J.

This proceeding in error is to review a judgment of the lower court, wherein the plaintiff in error, Daniel A. Long, as plaintiff or complainant, filed a bill or petition against the defendant in error, John E. Shepard, as defendant or respondent, praying for the cancellation of a deed to 120 acres of land, covering a part of the allotment of said plaintiff, on the ground (1) that the same was obtained by fraud, and (2) that it was executed and obtained in violation of section 19 of the act of Congress of April 26, 1906, c 1876, 34 U.S. Stat. 144, which is as follows: "And every deed executed before, or for the making of which a contract or agreement was entered into before the removal of restrictions, be, and the same is hereby, declared void."

In the bill or petition filed by plaintiff on March 17, 1909, he alleges that he is a citizen of the Creek Nation, and, as such, had allotted to him said land; that on April 26, 1905, being seised in fee simple of said tract of land, he executed and delivered a warranty deed (which he attached as an exhibit), covering 80 acres of said tract, to defendant, agreeing by the terms of said deed "to execute a good and sufficient deed of conveyance to said defendant for said eighty acres of land when his restrictions upon the power to alienate said land were removed," this being prior to the date of the removal of his restrictions; that on August 1, 1907, said plaintiff executed and delivered to said defendant another deed of conveyance for said 80 acres of land, the plaintiff renewing "the understanding and agreement that plaintiff would make, execute and deliver to defendant a good and valid deed of conveyance for said eighty acres of land as formerly agreed;" that on August 9, 1907, he executed another deed to said defendant, covering said 80 acres of land and also the other 40 of said 120 acres, but the same was done under false representations, such as constituted fraud, etc., and such as to avoid said conveyance as to said 40 acres of land.

It is further specifically averred in said bill as follows "That before the removal of restrictions upon the alienation of any of the land described and included in said deed, * * * the defendant made and entered into a contract and agreement with the plaintiff for the making and execution of a deed to said 80 acres of land herein described as the east half of plaintiff's allotment, and included in said fraudulent deed of August 9, 1907, as soon as the restrictions upon the alienation thereof were removed; that in pursuance of said contract and agreement, on the 9th day of August, 1907, the defendant procured and received from plaintiff, and plaintiff made and executed to the defendant, a deed for said 80 acres of land, which deed is absolutely void. That, should this court so require, this plaintiff hereby offers, and is ready and willing, to do equity by making, executing, and delivering a good and valid deed to ...