Penny v. Alliance Trust Co.

• Citation: 259 F. 558
• Decision Date: 13 May 1919
• Docket Number: 5201.
• Parties: PENNY v. ALLIANCE TRUST CO. et al.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

259 F. 558

PENNY v. ALLIANCE TRUST CO. et al.

No. 5201.

United States Court of Appeals, Eighth Circuit.

May 13, 1919

F. E Riddle, of Tulsa, Okl. (Harry Hammerly, of Chickasha, Okl and Stuart, Cruse & Riddle, of Oklahoma City, Okl., on the brief), for appellant.

A. N Gossett, of Kansas City, Mo. (Barefoot & Carmichael, of Chickasha, Okl., and W. H. Clark, of Muskogee, Okl., on the brief), for appellees.

Ames Chambers, Lowe & Richardson, of Oklahoma City, Okl., amici curiae.

Before SANBORN and STONE, Circuit Judges, and TRIEBER, District Judge.

STONE Circuit Judge.

From a decree foreclosing a mortgage on Oklahoma land defendant appeals. The land, patented to appellant, a minor Choctaw Indian, was deeded by his guardian to the mortgagor. Appellant claims that no title passed to the mortgagor, for the two reasons that the deed was absolutely void, and that if not void, it was, as to this mortgage, voidable, because of notice of lack of authority in the guardian. This claim is founded upon the following propositions: The law of Oklahoma permits guardians to sell lands of minor wards through proceedings in the probate court, consisting generally of application for order of sale, order of sale, and confirmation of sale. There is no authority to exchange such lands for other lands or property. The guardian made a contract with the husband of the mortgagor to exchange this land for other lands. To carry out this arrangement a clause of the contract recognized and provided for the necessity of an apparent sale of this land through the probate court. In accordance therewith an application was made to the court to sell the land, an order secured therefor, a report of sale for $5,000 cash to the mortgagor returned to the court, upon which was entered an order confirming the sale and ordering the guardian to execute a deed to the mortgagor for the land. The deed was executed, but in place of cash payment for the land the exchange was carried through under the agreement. Appellant expressly disclaims any charge that the court acted corruptly or with any improper motive in the above proceedings, but claims that it did have knowledge that the sale was only formal, and that the real transaction was an exchange of properties. Appellant contends that this knowledge of the court deprived it of jurisdiction to make the orders of sale and confirmation upon which the deed was based, and therefore that the deed is void. The position of the appellee upon this contention is that the probate court had jurisdiction over sales of this minor's lands; that this proceeding was on its face, as shown by all of the...