Mckennon v. Winn

• Decision Date: 01 July 1893
• Citation: 33 P. 582,1893 OK 16,1 Okla. 387
• Court: Oklahoma Supreme Court
• Parties: MCKENNON v. WINN

1893 OK 16

33 P. 582

1 Okla. 387

MCKENNON v. WINN

Supreme Court of Oklahoma

Decided: July 1, 1893

Appeal from the District Court of Oklahoma County, Hon. John G. Clark, Judge. Reversed.

Syllabus

1. REAL ESTATE.--Parol Contract--By the common law, prior to the enactment of the statute of frauds, 29 Charles Second, Chap. 3, contracts for the sale of real estate, or any interest therein, were not required to be in writing.

2. INDIAN TERRITORY--Laws in force--There was no law in the Indian Territory regulating the making of contracts for the sale of real estate, or any interest therein, at the time of the approval of the act of congress establishing a United States court in that Territory, by act of March 1, 1889.

3. SETTLEMENT OF OKLAHOMA--Common law--When the people from all parts of the United States, on April 22, 1889, settled the country known as Oklahoma, they brought with them the established principles and rules of the common law as recognized and promulgated by the American courts; and a parol contract for the sale of real state, or any interest therein, made between April 22, 1889, and May 2, 1890, is not invalid as being prohibited by any rule of the common law.

4. GOVERNMENT LANDS--Contracts Concerning--Unless forbidden by positive law, contracts made by actual settlers on government lands, concerning their possessory rights and the title to be acquired from the United States, are valid as between the parties to the contract.

Fred M. Elkins, for Appellant.

Sweet & Keyes, for Appellee.

BURFORD, J.

¶1 The appellant filed his complaint in the court below to enforce the specific performance of a contract for the conveyance of real estate situated in Oklahoma City, Oklahoma county, Oklahoma Territory.

¶2 A demurrer was filed to the complaint, alleging as grounds:

"First. That the court has no jurisdiction of the person of defendant, or the subject of the action.

"Second. That the complaint does not state facts sufficient to constitute a cause of action."

¶3 The demurrer was sustained, to which the appellant excepted and brings the case to this court by appeal.

¶4 The amended complaint to which the demurrer was sustained (omitting title) reads as follows:

"Plaintiff herein, Francis R. McKennon, complains of the defendant, Harvey R. Winn, and says:

"That heretofore, to-wit, on the 22d day of April, A. D. 1889, the said defendant entered upon and occupied as a townsite claimant under the public land laws of the United States, a certain tract of land in the city of Oklahoma City, in Oklahoma county, in the Territory of Oklahoma, and more particularly described as follows, to-wit: Lots numbers 11 and 12 in block 9, in said city, county and Territory, the same being a part of the S. E 1/4 of Sec. 33, Twp. 12 N. of range 3 W. of the Indian meridian.

"That afterwards, to-wit, on the day of April, A. D. 1889, the said defendant being an occupant still of said tract as above stated, and being desirous of enclosing said tract with a substantial fence and erecting thereon a house, and said defendant not having sufficient means (money) wherewith to enclose and otherwise improve this tract, the said defendant entered into an oral agreement with this plaintiff whereby it was mutually agreed and understood by and between the said defendant and this plaintiff, that the said plaintiff should furnish to the said defendant a sufficient sum of money wherewith to enclose said tract with a substantial fence; and that said plaintiff should furnish one-half of the amount of money necessary to erect upon said tract such a house as the said plaintiff and defendant might thereafter agree upon, and in case the said defendant could not furnish sufficient money to pay defendant's portion or share (one-half) of the cost of such house, then, in the latter event, the plaintiff was to lend to the said defendant a sum of money sufficient to pay for said defendant's share of the same.

"That the said defendant should continue in the occupancy of said tract and that the said defendant should hold and occupy the said tract with a view to acquiring title thereto from the United States government, and that such title should be acquired and held for the benefit of said defendant and plaintiff in equal portion or shares.

"That afterward, to-wit, on the day of May, A. D., 1889, it was agreed by and between the said plaintiff and defendant, that the said tract should be occupied and held by the said defendant, the lot number 11, for the benefit of this plaintiff, and the lot number 12 for the benefit of said defendant.

"That in pursuance of the aforesaid agreement, this plaintiff heretofore, to-wit, on the twenty-eighth day of April, A. D., 1889, furnished and paid unto the said defendant a sum of money, to-wit, fourteen dollars and eighty-five cents, in full payment of the entire costs of a certain fence erected upon and enclosing said tract, as in the foregoing agreement provided, and the said defendant then and there accepted said amount of money in pursuance of said agreement.

"That in pursuance of the aforesaid agreement said parties caused to be erected upon the said tract a small frame house at a cost of the value of thirty dollars, and that this plaintiff afterwards, to-wit, on the day of May, A. D. 1889, paid to the said defendant the sum of five dollars, in part payment of this plaintiff's share of the cost of said house, and said sum was then and there accepted by said defendant as such part payment. At the time last stated this plaintiff instructed defendant to call upon one Felix L. Bone, the said Bone being then and there this plaintiff's agent, for the balance of the share of this plaintiff of the cost of said house, to-wit, the sum of ten dollars, and the said defendant then and there agreed to do so. That on the day and dates last above stated the said Bone had in his possession and subject to the order of this plaintiff moneys of this plaintiff greatly in excess of the amount last above stated, and on the said last above named day this plaintiff instructed said Bone to pay to this defendant the sum of ten dollars.

"That in pursuance of and under the terms of the aforesaid agreement this plaintiff heretofore, on to-wit, the day of A. D., 1889, went into and took possession of the said lot 11, and occupied same.

"That afterwards, to-wit, on the 3d day of June, A. D. 1889, this plaintiff learned from the said Bone that the said defendant had not called upon the said Bone for the sum of ten dollars; that on the day last above stated this plaintiff offered to pay and tendered to said defendant the said sum of ten dollars the balance due from plaintiff to defendant on account of the said house erected, and the said defendant then and there refused to accept or receive the same, and said defendant then and there refused and has ever since and does now still refuse to fill defendant's part of said agreement.

"That heretofore, to-wit, on the day of , A. D., 1890, said defendant made application to Board No. 2, townsite trustees, for a deed to said tract of land, to-wit, lots numbers 11 and 12, in block number 9, and on the 15th day of January, A. D. 1891, said lots were by said board awarded to said defendant, and on the day of , A. D. 1891, said board issued to said defendant a deed therefor.

"That said board of trustees were duly appointed by the secretary of the interior and qualified as such trustees in accordance with the laws of the United States. That heretofore, to-wit, on the 3d day of September, 1890, said board, in pursuance to the authority vested in them, entered at the United States land office the S. E. 1/4 of Sec. 33, Twp. 12 N. of range 3 W. of the Indian meridian, of which last named tract said lots number 11 and 12 in block number 9 are a part and parcel, and patent for the same was duly issued to said board of trustees.

"That on the 30th day of April, A. D. 1891, this plaintiff demanded of defendant that said defendant should convey to plaintiff, by deed, all his, the said defendant's title to lot 11 in block 9 aforesaid, and then and there plaintiff tendered to said defendant the sum of ten dollars in good and lawful money of the United States, in payment of the sum due from plaintiff to defendant as aforesaid, and the said defendant then and there refused to execute said conveyance, and refused to accept or receive the sum so tendered. The plaintiff at all times had been ready and willing to pay said sum of ten dollars and now brings and pays into the court the said sum of ten dollars, in fulfillment of plaintiff's agreement and for the use and benefit of the said defendant.

"That plaintiff has complied in every particular with and fulfilled all the provisions of the aforesaid agreement, where not prevented by said defendant as hereinbefore stated.

"That said defendant has

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