Spade v. Morton
| Decision Date | 21 March 1911 |
| Docket Number | Case Number: 925 |
| Citation | 114 P. 724,28 Okla. 384,1911 OK 111 |
| Parties | SPADE v. MORTON et al. |
| Court | Oklahoma Supreme Court |
¶0 1. GUARDIAN AND WARD--Proceedings For Sale of Ward's Land--Necessity for Notice. There is no requirement of statute that notice shall be given by a guardian of his intended application under sections 3509-3511, Mansfield's Digest of Statutes of Arkansas (Ind. T. Ann. St. 1899, secs. 2405-2407) for an order of sale of his ward's real estate.
2. SAME. Failure to give such notice does not render the order of sale void on collateral attack.
3. GUARDIAN AND WARD--Sale of Ward's Realty--Validity of Private Sale. A private sale of the land of a minor by his guardian for investment under the provisions of sections 3509 and 3511, Mansf. Dig. (sections 2405, 2407, Ind. T. Ann. St. 1899), made under order of court and confirmed by the court, if irregular, is not void on collateral attack.
4. SAME--Confirmation. By section 3506, Mansfield's Digest of the Statutes of Arkansas (Ind. T. Ann. St. 1899, sec. 2402,) all sales of minors' land by a guardian are required to be reported by the guardian and confirmed by the court; and, in the absence of such report and confirmation, no title passes to the purchaser; but, where a guardian made application to the court, setting up the facts showing that his ward's real estate should be sold for investment, and that one M. offered a stipulated amount for the property, which was the highest and best bid applicant had received for the property, and prayed for order of court directing him to sell and convey the property to M. for said amount, and the court granted the order as prayed for by the guardian, and directed the guardian to execute a deed to M., held, that such order constituted a confirmation of the sale, and, if irregular, such irregularity would not vitiate the sale on collateral attack.
5. CONSTITUTIONAL LAW--Self-Executing Provisions--Judges Pro Tempore. That portion of section 9, art. 7, of the Constitution, providing for the election of district judges pro tempore, is not self-executing.
Error from District Court, Cherokee County; Malcolm E. Rosser, Judge.
Action by Sam Spade, a minor, by John Spade, guardian and next friend, against A. D. Morton, Jennie O. Morton, and the Prairie Oil and Gas Company. Judgment for defendants, and plaintiff brings error. Affirmed.
M. C. Reville and Kenneth S. Murchison, for plaintiff in error.
W. S. Fitzpatrick, J. B. F. Cates, N.E. Van Tuyl, George S. Ramsey, and C. L. Thomas, for defendants in error.
¶1 This action was originally brought in the United States court for the Northern judicial district of the Indian Territory at Tahlequah. Upon the admission of the state, it was transferred, under the provisions of the enabling act and the Schedule to the Constitution, to the district court of Cherokee county, where trial was had and judgment rendered. The action was instituted in the court below by plaintiff in error, hereafter referred to as plaintiff, against defendants in error, hereafter referred to as defendants.
¶2 The purpose of the action is to set aside a certain deed executed by one Samuel Manus, as guardian of plaintiff, to defendant A. D. Morton, on a certain deed from defendant A. D. Morton and wife to defendant Prairie Oil & Gas Company, conveying 76.03 acres of land described in plaintiff's petition. By consent of the parties, the cause was referred to a referee to make findings of fact and to report same, together with the evidence heard by him. A motion of plaintiff to amend the referee's report was sustained in part and overruled in part. To the act of the court in overruling plaintiff's motion in part, exception was saved, and the same has been urged in this court by plaintiff, in that he insists that the evidence supports certain facts not found by the referee. In response to this contention, defendants contend that the record is not in such condition that the evidence may be reviewed or considered by this court. Waiving the contention of defendants as to the condition of the record, and without a decision thereon, we have carefully examined all the evidence in the record and find that the facts found by the referee, as modified by the amendments of the trial court, are supported by the evidence, and the same will not be disturbed.
¶3 The facts, as found by the referee and modified by the trial court except as shall be further stated herein, are substantially as follows: On the 22d day of June, 1904, one Samuel Manus was duly appointed and qualified as guardian of the person and estate of plaintiff, and continued as such guardian until his death, on September 29, 1906. The lands in controversy are located near the town of Ramona in this state, and are within what is now a tank farm of defendant Prairie Oil & Gas Company at that place. Plaintiff is a full blood Cherokee Indian, duly enrolled as such, and the lands in controversy constitute a part of his allotment as a member of the Cherokee Tribe of Indians, and he was at all times hereinbefore mentioned, and subsequent thereto up to and including the trial of the action in the court below, a minor. Defendant Morton was at said times a resident of the town of Ramona, and engaged in the buying and selling of real estate. On June 21, 1906, there was approved by the President an act of Congress which removed the restrictions of plaintiff upon his power to alienate his allotment. Act June 21, 1906, c. 3504, 34 Stat. 345. Before the passage of this act by Congress, defendant Morton had discussed the question of selling the land to the Prairie Oil & Gas Company with some of its representatives, and had also made some investigation as to what the land could be bought for. He also went to Washington, and was instrumental in having the restrictions removed by the act of Congress, and he did so in expectation of being able to buy the land and resell it to his codefendant, but he had no contract or agreement with any one for such sale. On July 6, 1906, the guardian of plaintiff filed with the court his petition for order permitting and directing him to sell the lands in controversy to defendant Morton for a consideration of $ 1,330.52. On the 18th day of the same month, the court acted upon the petition and granted the order in conformity with the application of the guardian; and on the succeeding day plaintiff's guardian, Samuel Manus, executed his guardian's deed, conveying the lands to Morton. On the 23d day of the same month, Morton and his wife executed a warranty deed, conveying this land, with other lands, to defendant Prairie Oil & Gas Company.
¶4 The grounds upon which plaintiff seeks to have the deed set aside are succinctly stated by him in the propositions urged in his brief for reversal of the cause, which are as follows: First. That there was no notice given by the guardian of his intention to apply for authority to sell the lands of his ward. Second. That the decree of sale did not comply with the statute, in that it failed to fix the time and place for such sale or to direct the guardian to cause notice to be put up 20 days before the date of the sale. Third. That the guardian's deed contains none of the recitals required by the statute to be made in a guardian's deed. Fourth. That the sale was never reported to the court or confirmed by it. Fifth. That the sale is void on account of fraud participated in by defendants and plaintiff's guardian, Samuel Manus. Sixth. That plaintiff's restrictions upon his power to alienate his lands have never been removed, and the court was without jurisdiction to order sale of same. Seventh. That the regular judge of the judicial district in which this cause was tried, who was disqualified in the case, committed error in continuing the case, instead of ordering an election of a judge pro tempore, as prayed for by plaintiff. Eighth. That the Honorable Malcolm E. Rosser, the regularly elected and qualified judge of the Fifth district, who had been authorized and designated by the Chief Justice of the Supreme Court to hold a separate term of court in said district, was without authority to try this cause; and that plaintiff should have had an order directing a judge pro tempore to be elected to try same.
¶5 All the proceedings in probate pertaining to the land in controversy were had before the admission of the state, and were governed by the provisions of Mansfield's Digest of the Statutes of Arkansas in force in the Indian Territory. Section 3502 of that digest (Ind. T. Ann. St. 1899, § 2398) authorizes the probate court to order the sale of real estate of minors for the purpose of providing means for their education. And section 3511 (section 2407) authorizes the probate court to sell the real estate of any ward for the purpose of investing the funds derived therefrom, when it will be for the benefit of the ward to do so.
¶6 Section 3503 (section 2399) reads as follows:
"When real estate of minors is ordered to be sold under the provisions of the last preceding section, such sale shall be advertised and conducted in the same manner as now provided by law for advertising and conducting sales of real estate of deceased persons, made by executors and administrators, for the payment of debts."
¶7 By the specific language of this section, its provisions are made to apply only to the sale of real estate for the purposes authorized under section 3502, which is the education of the ward; and its provisions as to this class of sales do not require the proceeding for obtaining the order of sale to be governed by the provisions of the statute regulating the application for an order of sale by executors and administrators for the payment of debts. It requires only that, when the sale is ordered, it shall be advertised and conducted in the manner that sales are advertised and conducted by administrators and executors for the payment of debts. Section 159 (section 216), which requires that the...
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