Testerman v. Burt
| Decision Date | 04 March 1930 |
| Docket Number | Case Number: 18938 |
| Citation | 289 P. 315,1930 OK 103,143 Okla. 220 |
| Parties | TESTERMAN v. BURT et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Pleading--Sufficiency of Petition Challenged by General Demurrer.
The allegations of a petition when challenged by a general demurrer should be construed liberally in favor of the pleader, with a view to substantial justice between the parties, and if any facts are stated therein which entitle the pleader to any relief, the demurrer should be overruled.
2. Appeal and Error--Pleading--Amendments to Conform to Evidence.
The court may, before or after judgment, in furtherance of justice, allow a petition to be amended to conform to the facts proven, and where the trial court has authorized amendment of the pleadings and found the issues in favor of the plaintiff or cross-petitioner, the Supreme Court may consider the case as if the pleadings had been amended to conform to the facts proven where the evidence is admitted without objection.
3. Courts--Jurisdiction of State Court to Adjudicate Rights in Oil Lease on Red River Bed Granted Under Federal Statute.
An award of a lease to a party under the provisions of chapter 249, 42 U.S. Stat. 1448, does not prohibit or affect the jurisdiction of a proper court of this state to hear and adjudicate the claim and rights of another who alleges that the party obtaining the award or lease received the same as agent or trustee of the plaintiff, and, in such a case, where the judgment directing a transfer of the lease to the plaintiff is conditional and subject to the approval of the Secretary of the Interior, such judgment is not an invasion of the province of the Secretary of the Interior.
4. Trusts--Trustee not Permitted to Acquire Antagonistic Rights in Property.
Whenever one person is placed in such relation to another, by the act or consent of that other or the act of a third person or of the law, that he becomes interested for him, or interested with him, in any subject or property or business, he is prohibited from acquiring rights in that subject antagonistic to the person with whose interest he has become associated.
5. Trusts--"Constructive Trusts."
Constructive trusts are such as raised by equity in respect of property which has been acquired by fraud, or where, though acquired without fraud, it is against equity that it should be retained by him who holds it.
6. Mines and Minerals--Mining Partnership--Enforcement of Lien Against Partner's Interest to Repay Amount of Partnership Funds Appropriated by Him.
Where a member of a mining partnership or association appropriates to his own private use and benefit moneys belonging to the association, the share and interest of such member in the partnership may be impressed with a lien and ordered sold by a court of equity to satisfy the debt due the association for such funds.
7. Attorney and Client -- Allowance of Reasonable Attorney Fee in Equity Action.
In an equity action involving the allowance or recovery of attorneys' fees, the court may find and fix the value of such services in accordance with all the evidence and circumstances, within the bounds of reason, and it is held that the attorneys' fees allowed claimants by the trial court is supported by the evidence and record.
8. Appeal and Error--Review--Necessary for Propositions to Be Supported by Record.
A proposition or question of law presented and argued on appeal that is not shown to arise under the facts and record will not be considered or determined.
9. Equity -- Contracts -- Equity Following Law--Denial of Relief Against Contracts Becoming Burdensome.
Equity usually follows the law and is not authorized to modify contracts or relieve either of the parties thereto from a provision therein merely because such provision may appear more burdensome, in the light of later events, than was anticipated.
10. Appeal and Error--New Trial--Necessary That Motion Be Filed Within Statutory Time.
Section 574, C. O. S. 1921, requiring a motion for a new trial to be filed within three days after the verdict or decision is rendered, is mandatory; and, in the absence of a showing that the party filing it has been unavoidably prevented from doing so within the time fixed by statute, this court cannot consider errors occurring at the trial.
Commissioners' Opinion, Division No. 1.
Error from District Court, Tillman County; Frank Mathews, Judge.
Action by J. A. Burt against Tom Testerman et al. to determine the interest of unit holders in the Melish Consolidated Placer Oil Mining Association and to dissolve the Association and distribute its assets; other parties other than share or unit holders in the Association who claimed an interest in the assets of the Association were made parties and they asked that their rights be adjudicated. Dissolution of the Association was denied and judgment was entered in favor of the Association against Tom Testerman et al., determining the rights and interests of the several parties in the Association and its properties. Defendants appeal. Affirmed.
Stevens & Cline, for plaintiff in error Tom Testerman.
Ledbetter, Stuart, Bell & Ledbetter, for Melish Consolidated Placer Oil Mining Association in Red River.
T. P. Gore and E. E. Gore, for T. P. Gore.
Stevens & Cline, for Leslie C. Garnett.
Brown & Stater, for Burk-Bet Oil Company, W. F. Quay, and H. D. Hardenstein.
Jos. H. Aynesworth and Brown & Stater, for Burk-Senator Oil Company, Burk-Allied Oil Company, and Nacogdoches Oil Company.
¶1 This suit with its many issues grew out of certain placer mining claims attempted to be made about the year 1918, in the south half of the bed of Red River, in Tillman county, Okla., on the theory that the land belonged to the federal government, while other locators claimed superior rights under state claims of ownership, the states of Texas and Oklahoma each asserting exclusive ownership and jurisdiction over the territory. The Supreme Court of the United States, in the case of State of Oklahoma v. State of Texas, in opinions reported in 256 U.S. 70, 65 L. Ed. 831, and 258 U.S. 574, 66 L. Ed. 771, 42 S. Ct. 406, and 259 U.S. 565, 66 L. Ed. 1067, held that the south bank of the river was the boundary line between the states of Oklahoma and Texas; that the territory involved belonged to the United States government, and was not subject to location or acquisition under either the mining or land laws of the federal government, and adjudged all claimants, except the United States, to have no rights therein. Prior to the rendition of the opinion in the case referred to, the Melish Consolidated Placer Oil Mining Association in Red River was organized, and several of the original locators assigned their claims to the Association, who entered into contracts with certain other parties to this action or their assignors to drill test wells for oil and gas and develop portions and parts of the acreage and claims which the Association acquired from the original locators.
¶2 After the decisions in the case of State of Oklahoma v. State of Texas, supra, Congress enacted, in March, 1923, what is referred to as a relief measure (42 Stat. 1448), the purpose and object of which will be gathered in part from the following quoted part of the bill:
¶3 On September 1, 1925, under the provisions of such legislation, there was awarded to the Melish Consolidated Placer Oil Mining Association in Red River, which will hereinafter be referred to as the Association or Melish Association, leases or permits on approximately 222 acres of the 640 acres to which it made claim under such legislation, and to the plaintiff in error herein, defendant below, Tom Testerman, there was awarded a one-acre lease on which was located receivers well No. 156, which latter award carried with it approximately $ 110,000 accumulated from the production of the well held by the federal receiver.
¶4 This action was commenced in the district court of Tillman county, by J. A. Burt, in January, 1926, the plaintiff naming in his petition as defendants, the Melish Association, Tom Testerman, as its president, Elsie E. Wright, secretary, and Tom Testerman, M. L. Whelan, E. J. Boase, Henry D. Green, and Arthur Atkins, as trustees thereof, and alleged in part in his petition that the purposes of the organization were to create a common-law trust, designate trustees thereof in whom shall be vested certain placer mining property then and there supposed to be owned by the beneficiaries of said trust, and...
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