Zufall v. Peyton

• Decision Date: 12 July 1910
• Docket Number: Case Number: 497
• Citation: 1910 OK 258,110 P. 773,26 Okla. 808
• Parties: ZUFALL v. PEYTON.
• Court: Oklahoma Supreme Court

1910 OK 258

110 P. 773

26 Okla. 808

ZUFALL v. PEYTON.

Case Number: 497

Supreme Court of Oklahoma

Decided: July 12, 1910

Syllabus

¶0 1. VENDOR AND PURCHASER--Remedies of Vendor--Lien--Defenses. A defendant in a suit to foreclose a vendor's lien reserved in an administratrix's deed purporting to convey to him certain lands of which he is in possession may resist the payment of the balance of the purchase money upon the ground that said administratrix's deed was void, but must, in order to avail himself of that defense, offer to restore the premises, together with the rents and profits accruing during the time possession was withheld.

2. EXECUTORS AND ADMINISTRATORS -- Sale of Property--Validity. A purchaser at an administrator's sale has a right to suppose that by his purchase he will obtain the title of the decedent, and, if the order of sale is void, then his bid or other promise to pay is without consideration and cannot be enforced.

Error from District Court, McIntosh County; Preslie B. Cole, Judge.

Action by Margaret Zufall, administratrix of Oscar O. Zufall, or Otto Zufall, deceased, against Masterson Peyton. From a judgment in favor of defendant, plaintiff brings error. Reversed and remanded.

N. B. Maxey and Chas. F. Runyan, for plaintiff in error.--On necessary pleading for rescission: Pugh v. Stigler, 21 Okla. 854.

Horace Speed, R. B. Turner and W. C. Leidke, for defendant in error.--On applicability of doctrine of caveat emptor; Maupin on Marketable Title to Real Estate, pp. 82, 83; 24 Cyc. pp. 65, 72; Thompson v. Tolmie, 2 Pet. 157.

KANE, J.

¶1 This action was commenced by the plaintiff in error, Margaret Zufall, administratrix of the estate of Oscar O., or Otto, Zufall, deceased, as plaintiff, against Masterson Peyton, the defendant in error, as defendant, for the purpose of foreclosing a vendor's lien reserved in an administratrix's deed executed by the plaintiff to the defendant. The petition alleged, in substance, that the plaintiff is the duly acting administratrix of the estate of said decedent by appointment of the United States court for the Western District of the Indian Territory, at Muskogee, and that said probate matter was at the time of the commencement of said suit pending in the county court of McIntosh county, state of Oklahoma, by virtue of its being the successor of the United States court for the Western District of the Indian Territory; that the said decedent at the time of his death was a member of the Cherokee Tribe of Indians, and that out of the lands of said tribe there had been allotted to him certain described lands, aggregating 90 acres; that the said land at the time of the sale was located in the Western District of the Indian Territory, and that the United States court at Muskogee had jurisdiction thereof; that the said decedent died, leaving certain debts outstanding against the estate, and that this plaintiff, acting under an order of the said United States court at Muskogee, offered for sale the said lands belonging to the said estate after the same had been duly advertised as required by law on the 22d day of August, 1906, at the hour of 1 o'clock p. m., in the town of Checotah, in the Western District of the Indian Territory; that at said sale the said lands were bid off by Masterson Peyton, the defendant, for the sum of $ 1,650, he being the best and highest bidder therefor; that the said Masterson Peyton paid to this plaintiff the sum of $ 550, one-third of the purchase price, and that the administratrix executed to the said Masterson Peyton an administratrix's deed to said lands, which was duly confirmed by the court on the 25th day of August, 1906, wherein she reserved a vendor's lien on said lands for the balance of the purchase price, which remained unpaid in the sum of $ 1,100, which was evidenced by a promissory note of even date therewith, due in six months after date with interest at 6 per cent. per annum, from date.

¶2 Thereafter the defendant filed his answer, in which he sought to make Margaret Zufall, as administratrix, Margaret Zufall individually, Pearl Zufall, Maggie Zufall, Lewis Zufall, George Zufall, and Grace Zufall, and Herbert Zufall, minors, as the sole heirs of the said decedent, parties defendant, and alleged as a defense to the action instituted by the plaintiff that the United States court for the Western District of the Indian Territory at Muskogee did not have jurisdiction of the real estate belonging to the said decedent, and therefore did not possess the authority to order a sale of said lands, and that the sale so ordered was void, because under the treaty between the United States government and the Cherokee Indians, which provided for the allotment of the lands of said tribe, the said lands could not be sold by the allottee, nor taken for debts against his estate for a period of five years from the approval of the said agreement, and that the said period of five years had not expired, and therefore the said lands belonging to the decedent were not subject to the payment of debts against his estate; that said court was without authority to confirm the sale of said lands, and that the confirmation so made was void; that, as he did not obtain any title under said sale, said court ought not to foreclose said vendor's lien against him; that he was not liable under the law for the payment of the balance of the purchase money, and that he was entitled to have judgment against the said administratrix, and against the heirs which he sought to be made parties defendant, for the sum of money he had paid to this plaintiff as a one-third of the purchase price thereon, and a lien for said amount on the lands in controversy, and he prayed that said lien be enforced, and said lands be sold for the payment and satisfaction of said lien.

¶3 Thereafter the plaintiffs, made defendants in the cross-petition of the defendant, filed their reply and answer to the cross- petition, denying all the material allegations of the defendant's answer and cross-petition, and set up as an additional defense thereto that, if the sale so made was void, it had been ratified by the execution of quitclaim deeds from all of the adult heirs of the said decedent, and prayed as in the original petition.

¶4 Thereafter the defendant filed his reply, wherein he denied that the adult heirs of the said decedent could legally confirm the title to said lands in him, because two of the said defendants were minors, and that the restrictions were still upon said lands, and that even the adult heirs were unable to make a valid conveyance thereof.

¶5 Said cause was submitted to the court upon said pleadings without a jury, and at the time of the hearing the plaintiff and the defendants upon cross-petition moved the court for leave...