Tiger v. Lozier

Decision Date26 April 1927
Docket Number15893.
PartiesTIGER et al. v. LOZIER et al.
CourtOklahoma Supreme Court

Rehearing Denied June 7, 1927.

Syllabus by the Court.

Where after the submission of the evidence to the court, and the court thereupon requests counsel for the opposing parties to the action to formulate and submit to the court findings of fact and conclusions of law thereon, and the court thereafter adopts the findings of fact and conclusions of law as submitted by counsel for one of the parties to the action and such findings of fact are reasonably supported by the evidence in said cause, and the conclusions of law thereon are correctly stated, the fact that such findings were tendered the court prior to their adoption by counsel does not constitute error.

Where a person offers himself as a witness, and testifies on the same subject-matter concerning the professional relations with an attorney, such party then waives the privilege of such attorney testifying on the same subject-matter.

The county courts of the state act as federal agencies in the matter of passing upon deeds presented to them for approval by full-blood Indian heirs, and, while acting in this capacity, the failure of such courts to either adopt rules relating to the manner of conducting such sales or the failure to follow such rules they may adopt does not affect their acts in approving, or failing to approve, a deed presented to such court for its consideration.

"The test of capacity to make a deed is that the grantor shall have the ability to understand the nature and effect of the act in which he is engaged and the business he is transacting. To invalidate a deed it must appear that the grantor was incapable of comprehending that the effect of the deed, when made, executed, and delivered would be to divest him of the title to the land set forth in the deed." Miller v. Folsom, 49 Okl. 74, 149 P. 1185.

Where all the facts are fully known to the heirs of a deceased person respecting their number, the identity and relationship to a deceased person and an error is made by them as to the quantity of interest of any such heir based upon full knowledge of all the facts, the same constitutes a "mistake of law," and is not such a mistake as will relieve either party from a contract voluntarily entered into, in the absence of fraud, misrepresentation, or duress.

Where a deed was presented to the county court on the 12th day of August, 1909, said court having jurisdiction to approve a deed from full-blood Indian heirs of a deceased allottee, and such court thereafter, to wit, on the 6th day of October 1909, duly approved said deed, but erroneously found that only one of the grantors therein had any interest in said land, but the grantors, after receiving the proceeds from said sale, divided the money equally among themselves according to their interest in said land, and thereafter, on the 5th day of November, 1914, such of the grantors who were not classed as having an interest in said land by the county court at the time it approved said deed on October 6, 1909 filed their petition in said county court, asking that the deed to their interest in said land be approved, which was accordingly done on the 5th day of November, 1914. held, that the approval of the said deed by the court on November 5, 1914, is valid and binding as to such grantors.

Additional Syllabus by Editorial Staff.

Under Comp. Laws 1909, §§ 2838, 2965, 6492, evidence of party's making mark held to show legal execution of deed.

Appeal from District Court, Creek County; Fred A. Speakman, Judge.

Action by Mollie Tiger and others against F. S. Lozier and others for possession of land and other relief. From a judgment of dismissal, plaintiffs appeal. Affirmed.

Lewis C. Lawson, of Holdenville, for plaintiffs in error.

Geo. S. Ramsey and Alvin Richards, both of Tulsa, F. A. Calvert, of Nowata, John M. Chick, Edgar A. de Meules, and Villard Martin, all of Tulsa, for defendants in error operating lessees.

Thrift & Davenport, W. V. Pryor, and Sam T. Allen, all of Sapulpa, for defendants in error fee owners.


The plaintiffs in error occupy the same relative position in this court as they did in the district court.

The plaintiffs brought an action in the district court of Creek county against the defendants, in which plaintiffs sought the possession of certain lands, the cancellation of instruments affecting title to said lands, and for an accounting of the rents, profits, and royalties thereon.

Upon trial in the district court, judgment was rendered in favor of the defendants and dismissing the plaintiffs' cause of action.

The facts, in brief, in the instant case are as follows:

Sina Crow was an enrolled member of the Creek Nation. She died intestate in August, 1899. She left a minor child, Susie Crow, who died shortly thereafter without issue.

At the death of Susie Crow her nearest relatives were Fannie Fulsom, grandmother, also Mollie Tiger and Baby Cumsey, who were sisters to the mother of Susie Crow.

A patent was issued to the land involved herein on May 14, 1906, in the name of Sina Crow. There is no contest in this case between the heirs of Sina Crow. A purported quitclaim deed was prepared to the lands involved in this action and duly signed by Fannie Fulsom, Mollie Tiger, and Baby Cumsey, in which they conveyed to F. S. Lozier all their rights, title, and interest in the land involved herein in consideration of $800. This deed, together with a petition for its approval, was filed in the county court of Creek county on the 12th day of August, 1909. Appraisers were appointed by the county court to appraise the value of said land, and said appraisers thereafter filed their appraisements in the county court of said county, in which they fixed the value of the said land at $800.

On the 6th day of October, 1909, the county court of said county duly approved said deed, and in its order approving said deed found that the estate ascended unto the laws of the Creek Nation, and that Fannie Fulsom inherited the entire allotment, and further ordered that the entire proceeds from said sale be paid to Fannie Fulsom.

On the 5th day of November, 1914, Mollie Tiger and Baby Cumsey presented to the county court of Creek county a petition to correct the order of the county court made on the 6th day of October, 1909, wherein it recited that Fannie Fulsom was the sole heir to the inheritance of Susie Crow. They also asked in their petition that the deed which was filed in the county court on August 12, 1909, be approved as to their interests.

The county court of Creek county, on the said 5th day of November, 1914, entered its order approving the deed theretofore filed in the said court on the 12th day of August, 1909.

At the conclusion of the trial in the district court, the court found practically every issuable fact in favor of the defendants and against the plaintiffs. It also rendered its conclusions of law in favor of the defendants and against the plaintiffs.

In reviewing the facts in this case, it will be observed that certain proceedings and transactions were had in which the plaintiffs are designated under different names. Therefore, in order to avoid confusion, it may be well to state that it is admitted by all parties to this action that: Ah-la-co-hon-ny Fulsom and Fanny or Fannie Fulsom is one and the same person; Mollie Crow Tiger and Mollie Tiger is one and the same person; Baby or Babie Barnett and Baby or Babie Cumsey and Babie Crow Barnett is one and the same person.

The plaintiffs in error present and urge a very large number of assignments of error. The parties to this case have presented voluminous briefs in support of their positions, and we will discuss such of them as we think are germane and necessary in disposing of said cause, and we will dispose of the assignments of error in the order designated by the plaintiffs.

The plaintiffs' first assignment of error is that the court erred in its manner of adopting its findings of fact and conclusions of law thereon. It appears that, at the conclusion of the testimony, the court requested counsel for the plaintiffs and defendants to prepare, for the benefit of the court, findings of fact and conclusions of law thereon. It appears that both parties to the action complied with the request of the court, and the court adopted as its findings of fact and conclusions of law thereon those tendered the court by the defendants. This identical question was before the court in the case of Howard v. Howard, 52 Kan. 469, 34 P. 1114, wherein the court said:

"The second objection is, that the findings made by the court were prepared by the attorneys for defendant. * * * It is not an uncommon practice for the attorneys of the respective parties to formulate such findings as they desire to have made, leaving the court to adopt them, or such of them as in its judgment have been established by the proofs. The findings presented to the court in this case were adopted by the court as its own, and the fact that they were formulated by counsel is no ground for criticism or objection."

In our judgment, it was not erroneous in the court adopting the findings of fact and conclusions of law as formulated by counsel for the defendants.

Plaintiffs' second assignment of error is predicated upon the court permitting James J. Mars to testify in said cause over the objection of the plaintiffs. It appears that the plaintiffs together with F. S. Lozier, one of the defendants, went to the office of said James J. Mars, who is an attorney, and called on him to prepare a quitclaim deed to said property, and also a petition to the county court praying that the court approve said deed. It appears: That Mars,...

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