Thraves v. Greenlees
| Decision Date | 01 September 1914 |
| Docket Number | 3097. [d1] |
| Citation | 142 P. 1021,42 Okla. 764,1914 OK 411 |
| Parties | THRAVES ET AL. v. GREENLEES. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The adult heir of a deceased minor Cherokee freedman, who died subsequent to September 1, 1902, and before receiving his allotment, and which allotment was subsequent to his death made in his own name, as authorized by section 20 of the Cherokee Agreement of July 1, 1902 (32 Stat. at L. 716), had authority on January 5, 1906, to alienate the so-called "surplus" allotment, the title to which was cast upon such heir as provided in chapter 49 of the Statutes of Arkansas (Mansf. Dig.), made the law of descent and distribution, in such cases, by said section 20.
Such authority, without regard to any previous legislation, is conferred by the act of April 21, 1904 (33 Stat. at L. 189) removing restrictions upon the alienation of lands of all allottees of either of the Five Civilized Tribes of Indians not of Indian blood, except minors and except as to homesteads.
Where the owner of the fee in inherited lands by warranty deed conveyed her entire right, title, and interest therein, unto the grantee named, his heirs and successors, in fee simple forever, and afterwards an action is brought by her and a subsequent grantee, in which other plaintiffs are joined, and in which the validity of the original deed is attacked as having been made at a time when the grantor could not alienate, it is error for the court to decree a reformation of the deed attacked, limiting and confining the estate conveyed to the life estate of the grantor, together with the right to prospect and develop oil and gas thereon during said life period; there being no allegation in the petition of either fraud or mistake in the making and execution of the deed.
In such case, neither the allegation or the further allegation "that the interest of Jennie Kilgore in and to the property of said decedent was considered to be that of a life estate and all parties to this action, up to June, 1909, recognized that she had a life estate, and only a life estate in said land," constitutes a sufficient plea of mistake in the making and execution of a deed to the fee.
The reformation of a deed so as to convey a lesser estate than that named will not be granted, unless the elements necessary to justify it are pleaded as grounds for relief.
As the only ground upon which a court of equity is authorized to reform a deed or written contract is that, by reason of fraud or mistake, it is different from what the parties intended to have it, equity has no jurisdiction to reform the writing if there is no fraud or mistake alleged and proved.
Commissioners' Opinion, Division No. 1. Error from District Court, Nowata County; T. L. Brown, Judge.
Action by W. V. Thraves and others against J. R. Greenlees and others. From the judgment, plaintiffs and the defendant named bring error. Reversed and remanded with directions.
In an action for the reformation of a deed of a deceased minor Cherokee freedman, neither an allegation that the allotment was generally understood to be a new acquisition and would descend as such, nor an allegation that the grantor's interest in the decedent's property was considered and recognized by all parties concerned as a life estate only, constituted a sufficient plea of mistake in the execution of the deed.
W. D. Humphrey, of Nowata, and W. M. Justis, Jr., of Richmond, Va., for plaintiffs in error Thraves et al.
W. A. Sipe, of Tulsa, and W. A. Chase, of Nowata, for plaintiff in error, Greenlees.
On March 12, 1910, plaintiffs, W. V. Thraves, Jennie Kilgore, née Jennie Nelson, Eddie Nelson, Lola M. Nelson, a minor, by James Kilgore, her guardian, and Elizabeth Robinson, filed their petition in the district court of Nowata county, in which John R. Greenlees, the Southwestern Land & Investment Company, and J. H. Keith were named as defendants. No summons was ever served on the latter two defendants, and the action as to them was dismissed. Plaintiffs' petition, which is very lengthy, charges that the lands in controversy were allotted to William McK. Nelson, a Cherokee freedman, during his lifetime; that thereafter said allottee died, being at the time of his death between four and five years of age; that decedent left surviving him as his heirs at law his mother, Jennie Kilgore, née Nelson, and two brothers and two sisters; that on the 4th day of January, 1906, one of his said surviving sisters, Elizabeth Robinson, executed to the defendant Keith a deed purporting to convey the title of said Elizabeth in and to her interest in the estate of her deceased brother, William McK., and that on the day following the mother, Jennie, and the other sister, Cora, likewise executed deeds of conveyance to the said Keith to their respective interests in and to the estate of the said William McK. It is further charged in the petition that all of said deeds were made before the grantors therein had any legal authority to alienate the lands embraced therein, and hence such deeds were each and all void; that on the 16th day of August, 1907, the said Keith, joined by his wife, executed a quitclaim deed to said lands to the defendant Southwestern Land & Investment Company, and thereafter, and on the 5th day of October, 1907, said Keith executed to said company a second quitclaim deed to said lands, and on the 30th day of June, 1909, the said company conveyed said premises by quitclaim deed to the defendant Greenlees. In the seventeenth paragraph of the petition it is charged that at the time of the death of the allottee, William McK. Nelson, his allotment was by the public, and those versed in the law understood to be a "new acquisition," and as such would descend to his heirs as provided in section 2531 of Mansfield's Digest of the Statutes of Arkansas, at the time in force, by congressional enactment, in the Indian Territory. The eighteenth paragraph of the petition charges as follows:
The petition concluded with the following prayer:
"Premises considered, the plaintiffs herein ask the court to investigate the various claims of all the parties hereto in and to the land in controversy, and to cause an accounting to be made, showing the amount of oil that has been taken from the land, and a judgment to be rendered, defining the interests of each of the parties hereto, and that the court require the defendants to turn into court all proceeds derived from the oil produced from said land, pending this litigation, and, if the defendants are not willing to so do, that the court cause a receiver to be appointed to take charge of the property and to operate the same during this litigation, and the plaintiffs pray for all further and proper relief."
The issues being joined, and the case coming on for trial, while the plaintiff Jennie Kilgore was on the stand, the defendant on cross-examination offered in evidence, without objection, the deed executed by her dated January 5, 1906. This deed recites that it conveys after which follows the description of the land conveyed, which included in all 50 acres. James Kilgore, husband of Jennie, joined in the execution of the deed, which further recited:
"That we are lawfully seised in fee of the aforegranted premises, * * * that we have good right to sell and convey the same to the said John H. Keith aforesaid, and we will and our successors, heirs, executors, and administrators, shall warrant and defend the same to the said John H. Keith and his heirs, successors, and assigns forever, against the lawful claims and demands of all persons."
While the same witness was on the stand, she identified an affidavit, exhibited to her by counsel for defendant, made on the date of the execution of the deed, which affidavit named the several heirs at law of William McK. Nelson, deceased, and contained the following recital:
"Affiant further states that she has sold all of her right, title, and interest in and to said estate to John H. Keith of Coffeyville, Kan., which is evidenced by said warranty deeds given to said John H. Keith."
From what has been seen, it will appear from the averments and prayer of the plaintiffs' petition that their action was brought solely to obtain an adjudication of their respective claims to the land, and an accounting for oil produced from it, on the theory that at the time of the deeds of conveyance of Elizabeth, Jennie, and Cora, they had no authority to convey, and...
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