Scott v. Abraham

• Decision Date: 11 July 1916
• Docket Number: 7359.
• Citation: 159 P. 270,60 Okla. 10
• Parties: SCOTT v. ABRAHAM (TWO CASES).
• Court: Oklahoma Supreme Court

159 P. 270

60 Okla. 10

SCOTT v. ABRAHAM (TWO CASES).

No. 7359.

Supreme Court of Oklahoma

July 11, 1916

Syllabus by the Court.

A judgment of a county court appointing a guardian, and thereafter ordering a sale of the minors' land, both the judgment and the proceedings leading up to it being regular upon their face, is not subject to collateral attack in an action of ejectment by the minors to recover the land, upon the ground that the minors at the time the guardian was appointed were not residents of the county in which the guardian was so appointed.

A purchaser at a guardian's sale, all the proceedings relating thereto being regular upon their face, may not be ousted by this title by reason of fraud of the guardian inducing such sale, where the purchaser did not participate in or have knowledge of such fraud.

Commissioners' Opinion, Division No. 2. Appeal from District Court, Creek County; Wade S. Stanfield, Judge.

Actions by Daisy Scott, by her next friend, against Joe Abraham, and by George Washington Scott, by his next friend, against the same defendant, in ejectment and to cancel certain deeds. Judgment for defendant, and plaintiffs appeal. Affirmed.

W Morris Harrison, of Sapulpa, and R. C. Allen, of Muskogee for plaintiffs in error.

W. O Beall and W. L. Cheatham, both of Bristow, and R. B Thompson, of Sapulpa, for defendant in error.

BURFORD C.

Two suits were instituted in the district court of Creek county by Daisy Scott and George Washington Scott, by their next friend, against Joe Abraham, to recover certain tracts of land, and to have the deeds thereto by one Charlie Scott, executed while acting as their guardian, set aside. The petitions were practically identical, and the causes were consolidated in the trial court and here. The petitions alleged in substance that these minors were children of Alec Scott, a member of the Creek Nation, and his wife, a noncitizen; that Alec Scott had murdered his wife, and had been sentenced to life imprisonment at the federal penitentiary at Leavenworth, Kan., where subsequently he died; that both father and mother were residents of what is now Creek county, Okl., and that the children were residents of Creek county, except that during a portion of their life they had removed with a relative to the state of Durango, Mex. It is alleged that they had never at any time been residents of Haskell county, Okl.; that one Charlie Scott had procured himself to be appointed their guardian in the county court of Haskell county, Okl., and that this appointment was fraudulently procured by the said Charlie Scott, and the defendant, Joe Abraham; that thereafter the lands of these minors were sold, and the defendant, Joe Abraham, became the purchaser, and that the deeds executed by Charlie Scott, as guardian, to Joe Abraham were, by reason of the premises, void. The defendant admitted possession of and claim to the lands in question, but denied any fraud on his part, and alleged that the proceedings in the county court of Haskell county were regular upon their face, and that his title was good. Upon these pleadings the cause was tried to a jury, who returned a verdict in favor of the defendant. After motion for new trial was filed and overruled, the plaintiffs bring the cause here for review.

The questions involved in the specifications of error may be fully considered under two subdivisions of one proposition, to wit: Was the judgment of the county court of Haskell county subject to attack in this action (1) for lack of jurisdiction; (2) under the allegations of fraud as set out in the petition?

Upon the first proposition defendant in error urges that the instant suit constitutes a collateral attack upon the judgment of the county court, and that as such it cannot be maintained upon the allegations of the petition. Although this court has many times followed the broad rule laid down in Southern Pine Lumber Co. v. Ward, 16 Okl. 131, 85 P. 459, to the effect that "the jurisdiction of any court exercising authority over a subject, may be inquired into in every court, when the proceedings of the former are relied on and brought before the latter, by any party claiming the benefit of such proceedings" (Earl v. Earl, 149 P. 1179; In re Moore's Guardianship, 152 P. 378; Jefferson v. Gallagher, 150 P. 1070; Sharp v. Sharp [No. 7334, not yet officially reported] 166 P. 175), yet the rule is subject to the limitation that where it was necessary for the court rendering the judgment to pass upon a matter of fact in order to determine its own jurisdiction, its determination of that matter of fact is ordinarily impervious to attack in any collateral proceeding involving such judgment. In the instant case the proceedings of the county court of Haskell county, are conceded to be regular upon their face, the petition for the appointment of a guardian alleged that the residence of the minors was in Haskell county. It was necessary for the county court of that county to determine their residence as a matter of fact as a prerequisite to exercising jurisdiction. Having done so the determination of the court may not be collaterally attacked upon the ground that the finding upon which jurisdiction was based was untrue. These principles, and that the instant case constitutes a collateral attack upon the judgment of the county court, are firmly established by the decisions of this court in Baker v. Cureton, 150 P. 1090, and Hathaway v. Hoffman, 153 P. 184. In the latter case it was said:

"Where, in an action of ejectment joined with one to clear title, plaintiffs, in order to prove title in themselves, assailed the validity of the record in the county court appointing for them a guardian, who, as such, pursuant to an order of the court, had subsequently sold and conveyed the land in controversy to defendant's grantee, held, that such was a collateral attack, and that the record, being one of a court of general jurisdiction as to probate matters, could not be impeached by evidence aliunde."

And again:

"The record of the county court of Atoka county being silent as to the factum of the residence of the minors at the time said appointment was made, and the court being one of general jurisdiction as to matters probate, the trial court did right in passing on the motion to direct a verdict, to lay out of the case said evidence as to the residence of the minors, at the time the appointment was made and to hold, as he did, in effect, that such was a collateral attack on the record of that court, which, importing as it does absolute verity, was not subject to be impeached by

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