Murphy v. Walkup

• Decision Date: 14 April 1953
• Docket Number: No. 35073,35073
• Citation: 258 P.2d 922
• Parties: MURPHY v. WALKUP et al.
• Court: Oklahoma Supreme Court

Page 922

258 P.2d 922

MURPHY v. WALKUP et al.

No. 35073.

Supreme Court of Oklahoma.

April 14, 1953.

As Corrected June 29, 1953.

Rehearing Denied June 30, 1953.

Syllabus by the Court.

1. In this action, where plaintiff sought to prove that certain deeds he had given, were executed during minority; Held: He was not required to establish his exact birth date by clear and convincing evidence, it being sufficient that, under any view, he had not reached majority at that time.

2. Where an unenrolled member of the five Civilized Tribes of Indians, of more than one-half blood, executed a quitclaim deed in 1949, apparently to ratify or affirm a prior deed executed during his minority in 1945, said last deed was void and of no effect without the approval of the county court as required in the procedural restrictions for such conveyances imposed by the Act of Congress of August 4, 1947, 61 Stat. 731.

3. Where jurisdiction of the defendant in a former civil action to quiet title to real estate is purportedly obtained by publication service alone, without any mailing to said defendant and the defendant makes no appearance, and judgment is rendered against him on such publication service, and in a proper attack on said judgment, it is shown by clear and convincing evidence that the plaintiff at the time well knew the defendant, a minor, and his father and where they resided only a few miles away from plaintiff, although across a county line, and that said plaintiff wrongfully procured the making of an affidavit to the effect that plaintiff could not find the defendant nor his residence nor his address, and that if the defendant was within the state he secreted himself and that said defendant was a nonresident of the state, and that he, the plaintiff, did not know whether said defendant was living or dead, and it is further shown by convincing evidence that said defendant had no notice or knowledge of such civil action until after such judgment was rendered, the plaintiff is guilty of fraud as against such defendant, and the purported publication service is chargeable to the fraud of the plaintiff, and such publication service is invalid and said defendant is entitled, as to the said plaintiff, to vacate such judgment on account of such fraud of the plaintiff.

4. A judgment is not void upon its face unless such invalidity is affirmatively disclosed by an inspection of the judgment roll and a judgment that is valid on its face, though intrinsically or latently invalid does not, in itself, constitute actual or constructive notice to bona fide purchasers.

5. Where parties deraign their title to interests in land through an apparent stranger who has obtained a quiet title judgment that is valid on its face, and subsequently, they are made defendants with him in a suit to vacate said judgment on the ground of extrinsic fraud practiced by said stranger in obtaining his judgment, and, in the latter action, their genuine purchases of said interests are established, together with their payment of an apparently adequate consideration, and there is no fact or circumstance to suggest notice to or knowledge in them of any infirmities in said judgment or of any adverse claims to the land, they are prima facie bona fide purchasers; and there being nothing to impugn their motives, good faith, innocence, or ignorance of such infirmity and adverse claims, they need not assume the further burden of attempting to negate or forestall all possible and hypothetical speculations on such subjects.

Coy A. Mowdy, Turner M. King and Carloss Wadlington, Ada, for plaintiff in error.

Paul & McPheron, Durant, for Ohio Oil Co. and J. B. Shaw.

H. M. Shirley, Coalgate, for H. C. Walkup, Patsy Greenan, Jr., and E. F. Courtney.

BLACKBIRD, Justice.

This action was brought by plaintiff in error, hereinafter referred to as plaintiff, to cancel certain deeds to his inherited interest in his mother's Indian allotments in Coal County, Oklahoma, executed while he was allegedly a minor. He is said to be the youngest of the four sons of Ed G. W. Murphy, a seven-eighths Choctaw, and Annie Murphy, nee Lawrence, a three-fourths blood Chickasaw who died intestate in 1930. Her homestead allotment as a member of said tribe included the S 1/2 of SW 1/4 of Section 27, and her surplus allotment included Lots 1 and 2, in Section 5, and lands in the NW 1/4 of Section 34, all in Township 3 North, Range 11 East.

In June, 1943, H. C. Walkup, a renter of the land in Section 34, acquired an undivided one-third interest in that land, together with the tract in Section 27, after it had descended to said deceased allottee's husband, and thereafter began attempting to acquire the other inherited interests. Of these deeds Walkup obtained from Annie Murphy's heris, the last--the one from the plaintiff and his brother, James,--was executed August 17, 1945. This transaction was accomplished by plaintiff's father contacting Walkup in Coalgate and returning to his home in Wilburton, Oklahoma (where plaintiff was attending Jones Academy), and getting plaintiff's execution and returning with the deed to Coal County where the father then received the consideration from Walkup and thereafter transmitted said money to those two sons. Thus, it appears that Walkup, the grantee, had no direct personal contact with plaintiff at that time.

Early the next year, Walkup instituted Cause No. 8789, in the District Court of Coal County to quiet his title to the interests purchased as above indicated. In his petition, he alleged, among other things, that more than 3 years had elapsed since Annie Murphy's death without there having been a determination of her heirship and he named as defendants, the plaintiff herein, his father, Ed G. W. Murphy, and his brothers, Emanuel and James, 'if they be living and if they or any of them be dead,' the unknown heirs, executors, administrators, etc., 'of such of them as may be dead' together with the unknown heirs, executors, administrators, etc., of the deceased mother-allottee 'Annie Murphy nee Lawrence, Chickasaw minor by blood, Roll No. 277', and a deceased son, Floyd Murphy.

After the filing of this petition, Walkup's original attorney, Euel Moore of Coalgate, caused notice of the pendency of said action to be issued and served upon the Superintendent of the Five Civilized Tribes, and then retired from the case apparently on account of the illness which preceded his death. No further proceedings were taken in the case until more than two years later, after Walkup employed Roy Paul, a Durant attorney, to succeed Moore. Thereafter the plaintiff, by express representations, induced his attorney Paul to obtain service on the defendants by publication; and, on July 15, 1948, judgment was entered determining Annie Murphy's heirs and quieting title to the land in Walkup.

During the pendency of the suit above described, Patsy Greenan, Jr., who had previously obtained a deed to their interests in the Section 5 land from plaintiff's mother, father and two living brothers, Emanuel and James, obtained a deed from plaintiff covering his interest in the same land. This deed was dated August 22, 1946.

Thereafter, in 1949, on June 1st and June 21st, respectively, J. B. Shaw acquired from Walkup and his wife a portion of the mineral rights in the Sections 27 and 34 land, and The Ohio Oil Company acquired by mesne conveyances and/or assignments, unnecessary to describe, an oil and gas lease on the land in Section 34, from Walkup and one E. F. Courtney, among others.

Apparently some question then arose concerning Walkup's title and he obtained from plaintiff, again through his father and for an additional consideration, what is referred to in the record as a 'ratification' and 'curity' quitclaim deed, dated June 24, 1949.

Thereafter, on November 25, 1949, plaintiff instituted the present action. All of the above-named grantees and assignees, and others unnecessary here to mention, were eventually named defendants in the action and will hereinafter be referred to as such, except when mentioned by their proper names. In his petition, plaintiff alleged that the deeds he had previously given were void on the principal grounds that the land was restricted against alienation and he was a minor at the time he executed them. With reference to the latter subject, he alleged that he was born on June 26, 1926, and he expressly disaffirmed these deeds. In this connection, he averred that if he was required to tender or return the consideration given him for the deeds, he was entitled to an accounting of the rents and royalties from said land and to have said consideration set off or credited against the amount shown to be due him by such accounting.

Thereafter, on May 19, 1950, plaintiff filed an amended petition alleging, among other things, that he was born June 26, in 1928, instead of 1926, as alleged in his original petition. Also in this pleading he, for the first time, attacked the judgment rendered against him in July, 1948, in Cause No. 8789, hereinbefore described, as void for want of jurisdiction as he had no notice of the action and said judgment was rendered on purported service by publication induced by and based upon a false and fraudulent affidavit to obtain it and a false Affidavit to Excuse Mailing of said publication notice. He further alleged that this attack on said judgment was being made within two years of his discovery of this fraud and further alleged that he had a good and valid defense to the petition Walkup filed in that case.

At the trial, without a jury, plaintiff attempted to show by testimony and documentary evidence (other than a birth certificate), including school enumeration records, what his true and correct birth date was, but this evidence was conflicting.

Evidence was also introduced to show that the purported publication service on Robert Murphy in cause No. 8789 was based upon the wilful fraud of the plaintiff because plaintiff ...