Tracy v. Norvell
| Decision Date | 29 March 1921 |
| Docket Number | Case Number: 11810 |
| Citation | 81 Okla. 94,1921 OK 112,196 P. 929 |
| Parties | TRACY et al. v. NORVELL. |
| Court | Oklahoma Supreme Court |
¶0 1. Compromise and Settlement -- Binding Effect. Voluntary settlements are so favored that if a doubt or dispute exists between parties with respect to their rights, and all have the same knowledge or means of obtaining knowledge concerning the circumstances involving their rights, and there is no fraud, misrepresentation, concealment, or other misleading incident, a compromise voluntarily entered into must stand and be enforced, although the disposition made by the parties in their agreement may not be that which the court would have decreed had the controversy been brought before it for a decision.
2. Appeal and Error -- Equity Case -- Sufficiency of Evidence. In an equitable action the judgment of the trial court will not be set aside unless it is clearly against the weight of the evidence.
3. Compromise and Settlement -- Action to Cancel--Judgment--Evidence. Record examined, and held, that the judgment of the trial court is not against the weight of the evidence.
R. C. Allen and Davidson & Williams, for plaintiffs in error.
Alpha L. Burns, Harvey C. Goodloe, Edward E. Harvey, Errol L. Joyce, and Woodson E. Norvell, for defendant in error.
¶1 The plaintiff in error Nola Childers Tracy, who was plaintiff below, is a citizen of the Osage Tribe of Indians, and inherited from her father, William Childers, who was a citizen of the Creek Tribe of Indians, the following described, lands lying and situate in Tulsa county, to wit: the south half of the northwest quarter of the northeast quarter, and lots 5 and 6, in section 11, and the east half of the northeast quarter of section 12, township 19 north, range 12 east of the Indian Meridian, containing 160 acres, more or less. Lee Clinton and Daniel B. Hersley were, in the year 1914, duly appointed guardians of the estate of the plaintiff and continued as such guardians until such plaintiff arrived at her majority. The defendant in error, defendant below, was the attorney for said guardians and the estate of said plaintiff. Said plaintiff attained the age of 18 years on the 25th day of December, 1917. On the 7th day of January, 1918, said plaintiff, as party of the first part, and said Lee Clinton, Daniel B. Horsley, and said defendant, as parties of the second part, entered into a contract in writing by the terms of which said plaintiff constituted and appointed said defendant and said Clinton and Horsley her agents for the purpose of surveying and platting said lands into lots and as an addition to the city of Tulsa, and marketing said lots. Under the terms of said contract the plaintiff agreed to pay all the expenses of grading, platting, advertising, and conducting the sale of said lots, the expense of abstracts and revenue stamps and the expense of equipping and maintaining officers in the city of Tulsa, together with the salary of one person to act in the capacity of stenographer and book-keeper. It was further agreed that said plaintiff should have the privilege of selecting from said lands so platted the equivalent of four blocks for her own use, and should not be liable for any commissions thereon, and that said defendant and said Clinton and Horsley should receive a net commission of 10 per cent. of the gross amount received from the sale of each lot. It was further agreed that said defendant and Clinton and Horsley should exercise the powers granted them jointly, acting as a board by majority vote; should adopt rules for their government and keen a complete record of their proceedings which should be open to the inspection of plaintiff at all times. Proceeding under said contract, said defendant and said Clinton and Horsley sold between January 10th and September 1, 1918, lots for which the parties received about $ 100,000. On or about September 1, 1918, the plaintiff, without the consent of the defendant, closed the offices in which the business had been conducted, and refused to further perform said contract, and refused to allow said defendant to participate in the performance thereof. Thereafter, the defendant brought suit in the district court of Tulsa county against said plaintiff and Lee Clinton and Daniel B. Horsley, seeking to recover the sum of $ 110,000 for legal services rendered to said guardians and the estate of said plaintiff. On December 21, 1918, a contract of settlement was entered into by and between the plaintiff and defendant herein, by the terms of which, in consideration of the dismissal with prejudice of the aforementioned suit and the relinquishment by said defendant of all claims which he had or might have against the plaintiff, her guardians, or her estate, the plaintiff agreed to convey by good and sufficient warranty deed to said defendant 36 lots or parcels of land situated in what is known as Horsley Hill addition to the city of Tulsa, and agreed to indorse and deliver to said defendant a certain promissory note for the sum of $ 10,000, executed by E. Constantin and Constantin Refining Company, payable to the order of said plaintiff. In said contract it was agreed that 18 of said lots were received and accepted by the defendant in exchange for his relinquishment of his rights under the contract bearing date of January 7, 1918, and the other 16 lots and said note for $ 10,000 were in payment for all legal services rendered. Said lots were conveyed and said note indorsed and delivered and said action for $ 110,000 dismissed with prejudice in accordance with the terms of said contract. Afterwards, and on November 7, 1919, this action was brought by plaintiff, seeking to set aside said compromise settlement, and praying that the defendant be required to make full disclosure and discovery of the matters in plaintiff's petition mentioned, and a complete accounting of all funds received by him from the sale of the lots conveyed to him, and the note so indorsed and delivered to him, and for judgment against said defendant for such sum or sums received, and for cancellation of the conveyance covering the unsold portion of said lots, and for general relief. The plaintiff predicates her action upon alleged fraud of the defendant in procuring the contract of January 7, 1918, and also in procuring the settlement of date December 21, 1918. The defendant in his answer and cross-petition denied the fraud and prayed that a certain notice placed of record by the plaintiff, seeking to cloud the title to certain lots deeded to him under said contract be canceled, and for all proper relief. The trial court, at the request of the parties, made findings of fact and conclusions of law, as follows:
"Nola Childers Tracy, one of the plaintiffs herein, inherited 160 acres of land in this county as an heir of the estate of her father, a Creek Indian. She was at that time a minor about 14 years of age. Clinton and Horsley were appointed guardians of her estate. Miss Childers attained...
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