Wood v. French

• Decision Date: 18 November 1913
• Docket Number: Case Number: 2857
• Citation: 1913 OK 679,136 P. 734,39 Okla. 685
• Parties: WOOD et al. v. FRENCH.
• Court: Oklahoma Supreme Court

1913 OK 679

136 P. 734

39 Okla. 685

WOOD et al. v. FRENCH.

Case Number: 2857

Supreme Court of Oklahoma

Decided: November 18, 1913

Syllabus

¶0 1. ESCROWS--Vendor and Purchaser--Wrongful Delivery of Deed--Effect. Where the grantor retains the actual possession of the land, although such possession is not notice of his adverse claim of ownership, his escrow deed is invalid to transfer any right, in absence of performance of condition; and the wrongful yielding of possession of such deed to grantee by depositary transfers no title, even though the claimant thereunder be an innocent purchaser for value.

2. VENDOR AND PURCHASER--Innocent Purchaser--Notice of Defect--Inadequacy of Price. Where the grantor in an escrow deed retains the actual possession of the land, and his grantee, after wrongfully obtaining possession of such deed, without performance of the escrow condition, sells the land at a very inadequate price to an otherwise innocent purchaser for value, such inadequacy of price is evidence of notice of adverse claim of ownership by the grantor in such escrow deed.

3. CONTINUANCE--Application--Sufficiency. Application for continuance because of absence of witness, without showing that applicant believes to be true the material facts he believes the witness would prove, is insufficient under section 4207, St. Okla. 1893 (section 5045, Rev. Laws 1910).

4. SAME--Grounds--Diligence. In showing diligence to procure evidence, failure to take deposition of witness not amenable to nor served with subpoena is not excused by the promise of such witness to appear and give evidence at the trial, neither the reliance upon such promise nor the breach thereof being blamable to the adverse party; and it is not an abuse of judicial discretion to deny application for continuance based upon absence of such witness.

Roach & Bradley, for plaintiffs in error.

Thomas J. Watts, for defendant in error.

THACKER, C.

¶1 Plaintiff in error will be designated as "defendant" and defendant in error as "plaintiff," in accord with their respective titles in the trial court. Plaintiff, a three-eighth blood Cherokee Indian, residing and engaged in business in Los Angeles, Cal., owned in Sequoyah county, Okla., 80 acres of inherited allotted land worth $ 3,200, which he wanted to sell when, in May, 1909, at Chouteau, Okla., while en route to Muskogee, Okla., he met one John Culver, who claimed to have known him at the Male Seminary the plaintiff had attended at Tahlequah, but, although believed, Culver was not remembered by plaintiff. Culver told plaintiff he knew a party who bought land, and took him to the office of and introduced him to H. R. Pierson the morning after their arrival in Muskogee. Pierson was engaged in some way in the land business and, representing himself to be authorized to purchase lands for the defendant H. B. Fields, who was by Pierson and Culver falsely represented to plaintiff as a wealthy oil man temporarily out of the city, he offered to purchase plaintiff's land at the agreed price of $ 3,200. Accordingly, plaintiff as seller, Pierson as purchaser for Fields, and Culver as disinterested depositary of escrow deed, came to an agreement whereby plaintiff's deed to Fields was signed, acknowledged, and so put in escrow and left with Culver to be by him delivered to Fields when he paid or mailed to plaintiff said $ 3,200. Plaintiff waited in Muskogee a few days and attempted to get in communication with Fields by phone, thinking he might get the money from Fields before leaving; but, failing in this, he left without having seen or heard from Fields and went to and spent some time at one or two places in each of the states of Colorado, Idaho, and Washington; and while on that trip he wrote Culver and, failing to get an answer, wrote Pierson, demanding a return of the deed if the purchase price was not forthcoming, receiving from Pierson a letter under date of June 20, 1909, which, so far as pertinent here, reads as follows:

"Yours received. Contents noted. I have not seen Fields. I learn he is in Colorado Springs. Just as soon as he returns I will send you all papers."

¶2 Fields was not, in fact, wealthy, nor an oil man, but was a carpenter, with an earning capacity of from $ 3.50 to $ 4.50 per day; and he had not been out of Muskogee on or about May 21, 1909, when plaintiff's deed was made and placed in escrow. Although Fields had stated to plaintiff, soon after the latter had discovered his deed had been wrongfully delivered and recorded, that he had, by his own check, provided Pierson with the $ 3,200 to pay plaintiff for the land, he testified at the trial more than a year later he had not provided $ 3,200 nor any amount by check, but had advanced, in money, $ 1,000, of which Pierson returned to him all in excess of $ 800, as the full amount of the purchase price, and $ 40 additional retained as agent's commission. Fields further testified he did not do business with banks and had kept the $ 1,000 so advanced, with $ 1,500 more, in the form of money in his trunk in his room at a boarding house in Muskogee; and he further claimed to have sold the land to the defendant Wood for $ 1,000, which is $ 2,200 less than the land was worth, the same amount less than he told plaintiff in the first instance it had cost him, and $ 160 more than he finally testified it had cost him. Fields admits the agency of Pierson in the purchase of the land for him; and the facts and circumstances in the case tend to show that, in respect to the representations made to plaintiff by Pierson, no less intimate legal relation than that of principal and agent existed between these parties. It also seems clear that Culver can be deemed to bear no more intimate legal relation to plaintiff than that of a disinterested depositary of the deed; and, if he was more intimately connected with those interested in procuring from plaintiff the making and wrongful delivery of the deed, it does not appear that knowledge of such fact can be imputed to plaintiff, so, in relation to plaintiff, he must be regarded as a disinterested depositary of the escrow deed. Some time in the summer or about September 1, 1909, plaintiff returned to Muskogee and Culver assured him he was still holding the deed in escrow for payment of the purchase price; but, some time in August or September, plaintiff got information to the effect that the deed to Fields had been recorded, which upon investigation he found to be true. Plaintiff further found that the deed had been recorded on May 21, 1909, the day next following the day he acknowledged it and put it in the hands of Culver as escrow holder; that it had been delivered to Fields; and that on July 2, 1909, Fields had executed to the defendant Wood a deed, which was recorded on July 17, 1909, purporting to convey this land for a consideration of $ 1,000, the receipt of which is acknowledged in the deed. Plaintiff had fruitless conferences with Fields, Pierson, Culver, and Wood, in which, accepting plaintiff's evidence as true in deference to the findings and judgment of the trial court, Fields claims to have advanced Pierson $ 3,200 for plaintiff by check, Pierson claimed to have thought Culver had paid the $ 3,200 to plaintiff, but without explaining from what source he thought the money had been obtained, Culver claimed to have thought plaintiff had been paid by Fields directly or through Pierson and admitted he had not paid him, and Fields, upon being finally charged by attorney for plaintiff with not having paid, and asked how much he had received for the use of his name in the transaction, said, "$ 200," but thereupon got mad and left the room with the statement that, if any more information was wanted, plaintiff and his attorney would have to see Pierson. Plaintiff, having failed to more definitely fix responsibility for the wrong done him or to obtain satisfactory amends, attempted to give public notice of his claim and the grounds therefor by making on September 27, and filing for record on September 28, 1909, in the office of the register of deeds of Sequoyah county an affidavit of the same, which was recorded in the Miscellaneous Records of that office; and on February 24, 1910, he commenced this action, recovering judgment on January 20, 1911, canceling the said deeds, together with the records thereof, removing cloud from his title, and perpetually enjoining defendants from setting up any claim adverse to plaintiff to said land and from disturbing him in the peaceful...