Schock v. Fish

• Decision Date: 24 November 1914
• Docket Number: Case Number: 5808
• Citation: 45 Okla. 12,144 P. 584,1914 OK 591
• Parties: SCHOCK et al. v. FISH.
• Court: Oklahoma Supreme Court

1914 OK 591

144 P. 584

45 Okla. 12

SCHOCK et al. v. FISH.

Case Number: 5808

Supreme Court of Oklahoma

Decided: November 24, 1914

Syllabus

¶0 1. QUIETING TITLE--Dismissal. In a suit in equity to cancel a certain conveyance and to quiet title to land, the uncontroverted evidence shows that plaintiff had conveyed all his right, title, and interest in the land to a third party prior to the institution of this suit. Held, the trial court should have dismissed plaintiff's petition.

2. APPEAL AND ERROR--Reversal--Rendition of Judgment. In an equity proceeding, where it is clearly shown that the court failed to consider uncontroverted competent evidence, or that the finding and decree are clearly against the weight of the evidence, held, said decree is erroneous, and this court will consider the entire record in said cause, weigh the evidence, and render such judgment as the trial court should have rendered.

William M. Matthews, for plaintiffs in error.

Herbert E. Smith, for defendant in error.

RIDDLE, J.

¶1 The parties will be denominated here as they were in the trial court. Plaintiff filed his petition against defendants, alleging, in substance, that he is a citizen of the Creek Nation, and the father of Mahala Fish, nee Hickman, Katie Fish, nee Williams, and Winey Fish, Billy Fish, and Miley Fish; that Billy Fish died intestate in October, 1900, while a minor; that on the 23d day of August, 1902, the land in controversy was allotted in his name as his share of the allottable lands of the Creek Nation; that on the 28th day of February, 1910, he, together with his children, Winey, Mahala, Katie, and Frazier and Milley Fish, executed to defendant Elmer E. Schock a warranty deed to the lands allotted in the name of Billy Fish, deceased, for a consideration of $ 800; that defendant Schock conveyed a one-half interest in said lands to defendant Bebee; that on the 23d day of January, 1912, William Sullivan, as guardian of Frazier and Milley Fish, executed a guardian's deed, conveying to defendant Schock all the right, title, and interest in and to the land in controversy; that none of said deeds were approved by the Secretary of the Interior. He alleges that the signatures to said deeds were obtained through fraud and undue influence of defendant Schock; that said deed is voidable, by reason of mistake of plaintiff as to his right, title, and interest in and to said premises, which mistake induced plaintiff to sign said deed; that he caused his consent to be given by mistake, which consent was had and obtained through fraud and undue influence, exercised by said Schock, and in obtaining said deed from plaintiff by virtue and through the use of the statements by said Schock to plaintiff that plaintiff, as the father of said Billy Fish deceased, and the said brothers and sisters of said decedent hereinabove named, inherited equally an undivided one-sixth interest in and to the land so allotted to the heirs of Billy Fish, deceased, which statements plaintiff believed to be true and relied thereon as true and correct statements of fact and law relating to his title and interest in and to said land. lso admitted that the Arkansas law of decent and distribution controlled the devolution of the property; that defendant Schock purchased the land from plaintiff and his children named for the consideration of $ 800; that the deed executed by defendant was approved on the 26th day of March, 1911, by the county court of Okmulgee county, Okla. He admits conveying one-half interest in the land to defendant Bebee. To this answer, a general reply was filed. Upon the issues thus formed, the cause proceeded to trial before the court, without the intervention of a jury. Judgment was rendered in favor of plaintiff, canceling his conveyance and quieting title in plaintiff. Defendant prosecutes error to this court, and alleges for reversal ten assignments of error. From the view we take of this case, it will be necessary to consider only the following assignments:

"(6) The court erred in finding that Little Fish had any right, title, interest in the premises in controversy at the time he executed the deed to plaintiff in error, and in not holding that Little Fish had conveyed all his interest in said premises by virtue of the deed executed to him by Chas. W. Wilson on August 21, 1907."

"(10) The decision of the court is not sustained by sufficient evidence."

¶2 Among the findings of the court is the following:

"The court does not believe nor find from the testimony in this case that the defendant Schock intentionally, at any time, deceived the plaintiff, Little Fish, or ever attempted to deceive him, but the fact remains that an ignorant full-blood Indian has less idea of what his rights are under the law than the ordinary white man."

¶3 It is further shown, from the undisputed evidence that on the 21st day of August, 1907, plaintiff executed and delivered to Chas. W. Wilson a deed of general warranty, conveying to him the land in controversy. It is shown that in the early part of 1911, and more than one year before the filing of this suit, and about a year after the execution of the deed to defendants herein, plaintiff fully recognized the validity of each of these deeds by participating in a settlement, wherein he gave his consent for Wilson to pay to defendant Schock the sum of $ 354 for and on account of plaintiffs. This payment was made on the ground that, when defendant Schock purchased the interest of Little Fish, he did so, believing that the premises were free of incumbrance, and after ascertaining that Little Fish had, prior thereto, conveyed the premises to Wilson, the matter was settled in the manner before indicated. The conveyance made to Wilson by plaintiffs was introduced in evidence without objection, is regular on its face, and made at a time when there were no restrictions upon the alienation of said land, and conveyed all the right, title, and interest of Little Fish in the premises. It is uncontroverted that he participated in this settlement and expressly recognized the validity of these instruments in the manner indicated herein, and as shown from the following evidence:

¶4 Upon the question of settlement, defendant Schock testified as follows:

"Q. State when you communicated the information that you derived from your lawyers as to the interest that Little Fish owned in this land. A. I came back home and found that Charles Wilson had a deed to this Billy Fish land. * * * And later I met Little Fish on the street here, and I told him that Charley Wilson had a deed to this land, and he asked me about the balance of the money, and I told him he had given Charley Wilson a deed to the land. I had thought he owned all of the land, and I couldn't settle up with them until they arranged it with Charley Wilson, so this could be adjusted and I could get a clear title, and I told him to see Charley Wilson and see about it. * * * Q. Was there any settlement made that day? A. Of the whole matter? Q. Yes. A. No. Q. Was there any settlement made subsequent? A. Yes, sir. Q. What was that settlement? A. I paid all the rest the money that was coming to them, and I think I paid Little Fish some more money. I think part of the Little Fish money was paid to Charley Wilson. Q. Was that on account of the transaction? A. Yes, sir."

¶5 Charley Wilson testified in regard to this settlement as follows:

"Q. Did you and he and Sullivan have any kind of a settlement in regard to this piece of land? A. Yes, sir. Q. Well, where was that settlement had? A. Moore & Noble's office. Q. Now, Mr. Wilson, you may go ahead and state anything else that occurred that day between you and Little Fish and Mr. Schock in regard to this land. A. As I remember, Mr. Schock brought Little Fish up to the office and some one as interpreter. I am not sure who the interpreter was, and we talked this matter over, and I told them how much I had paid him, and showed Mr. Schock and Little Fish, and there was an agreement there between us that I was to pay $ 354 more as my part, and I think I gave Mr. Schock right then for my part the money, and asked him when he got this matter through to deed me the piece of land in Okfuskee county. Q. Well, now, what did you pay Mr. Schock this $ 354 for? Why did you pay him that? A. As part payment on this piece of land I was getting. Q. Did you get a piece of this Billy Fish land? A. Yes, sir; 80 acres. * * * Q. Now, did Little Fish say anything further to you that day in regard to this land? A. The understanding that I had with Little Fish was that I was to pay this amount to Mr. Schock, and Mr. Schock would make the final settlement with him. That was the understanding before I gave Mr. Schock this check; that I had an understanding with Little Fish that he was to make the final settlement. He said Schock had already paid him some money, and he would make final settlement. * * * Q. Was there anything said that day as to what this $ 225 should be applied to? A. It was on payment of this land. Q. Did he agree to that? A. Yes, sir. Q. That the $ 225 that you had given him should be

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