233 P. 1078 | Okla. | 1924
Fannie Usrey, nee Bishop, was allotted the lands in controversy as a mixed-blood Choctaw Indian. Eunice George, the mother of the allottee, and the wife of J.C. George, who is the step-father of the allottee, was appointed guardian of the person and estate of Fannie Usrey. The guardian filed her petition in the guardianship case for the sale of her ward's lands as described in the petition. W.R. George, a brother of J.C. George, became the purchaser at the sale. After the purchase of the land, W.R. George and his wife executed and delivered a mortgage on the property to the American Investment Company to secure the payment of one note in the principal sum of $2,000. Thereafter, the American Investment Company assigned the mortgage and indebtedness to Henry B. Hellman. As a part of the same transaction W.R. George and wife executed and delivered a commission mortgage on the same property to the American Investment Company for the sum of $250. The proceeds of the first mortgage were paid to Mrs. George, and the payment in the sum of $1,992.50 was credited to her account as guardian of Fannie Usrey, a minor, in a bank at Temple, Okla. Henry B. Hellman later died leaving several persons as his heirs at law. R.E. Calloway, as agent of the American Investment Company conducted the negotiations in connection with the execution of the mortgages, and was employed in the bank in which the money was deposited. W.R. George made default in the payment of the commission mortgage, and the American Investment Company foreclosed the same and acquired the title at sheriff's sale, subject to the first mortgage. Thereafter Fannie Usrey commenced her action against the American Investment Company and the heirs of the assignee of the first mortgage to cancel the guardian's deed, mortgage, and the sheriff's deed in the foreclosure proceedings, and for possession of the lands with rents. In the trial of the cause judgment went for the plaintiff and against the defendants, granting the relief as prayed for. The defendants have perfected their appeal from the judgment to this court, and assign several of the proceedings had in the trial court as error for reversal here. Among the several errors assigned are: (1) Error of the court in submitting the issues of fact to the jury; (2) refusal of the court to make special findings of fact and law upon the timely request of the defendants; (3) the verdict and judgment is contrary to the evidence; *204 and (4) the verdict and judgment is contrary to law. Section 466, Comp. stat. 1921, is in the following language:
"An action may be brought by any person in possession, by himself or tenant, of real property against any person who claims an estate or any interest therein, adverse to him, for the purpose of determining such adverse estate or interest, and such action may be joined with an action to recover possession of such real property by any per-not in possession."
The first part of the section is declaratory of the equitable remedy to quiet title by a person in possession as it existed in the chancery courts. The latter part of the section merely authorizes the owner out of possession, in an action in ejectment to join therewith an action to quiet title. The effect of section 466, supra, is neither to add anything to, nor take anything from the respective actions as they formerly existed and were applied in the chancery and law courts, further than the increased results obtained by combining the two remedies in one suit. The effect of the section is to enable the plaintiff, who formerly owned the complete title, and has conveyed the legal title to the defendant (but retains the equitable title on account of the wrongful procurement of the legal title by the defendant), to join his equitable action with his action in ejectment, in order that the legal title of the defendant may be cancelled by the equitable proceedings, and revested in the plaintiff. After the cancellation of the legal title of record in the defendant by the equitable proceedings, the legal title of record, as it formerly stood in the plaintiff is thereby revested in the plaintiff by the judgment in the equitable proceedings. In an action to quiet title and for possession as is involved herein, if the plaintiff prevails in the equitable action, judgment follows as a matter of course for the plaintiff for possession, as the judgment in the equitable remedy revests the plaintiff with the legal title as it appears of record undisputed.
In certain causes the trial of the issues of fact is governed by section 532, Comp. Stat. 1921, in the following language
"Issues of law must be tried by the court, unless referred. Issues of fact arising in actions for the recovery of money, or of specific real or personal property, shall be tried by a jury, unless a jury trial is waived, or a reference be ordered, as hereinafter provided."
This section requires the issues of fact arising in an action in ejectment to be submitted to the jury, unless waived.
In the trial of issues of fact in an equitable proceeding, section 556, Comp. Stat. 1921, governs:
"Upon the trial of questions of fact by the court, it shall not be necessary for the court to state its findings, except generally for the plaintiff or defendant, unless one of the parties request it with the view of excepting to the decision of the court upon the questions of law involved in the trial; in which case the court shall state in writing the conclusions of fact found, separately from the conclusions of law."
In the trial of an action to quiet title, if either the plaintiff or the defendant makes a request for special findings of fact it is the duty of the court to grant the request. Section 466, supra, relating to the joining of an action to quiet title with an action in ejectment was enacted by the Legislature subsequent to the passage of the two prior sections. The section merely relates to the right to join the two actions in the same proceeding, which did not formerly exist. Ewert v. Robinson (C. C. A.) 289 Fed. 753. The section does not evidence a purpose on the part of the Legislature to modify the statute relating to the trial of issues of fact in an ejectment case by the jury, or the statutory provisions in relation to the trial of equitable causes. The Legislature has since enacted codes containing the three sections, and by such adoption has evidenced a purpose to give all three sections effect in our code. The action of the Legislature inadopting cides containing the three sections is equivalent to construing the sections as having a place in our statutory law. Rock Island Imp. Co. v. Fagerquist,
For her right in canceling the guardian's deed and quieting the title, the plaintiff relied in her petition upon the following allegations: (1) The relationship between the purchaser and the guardian; and (2) the failure of the defendant to pay the consideration for the conveyance. In addition to these two grounds for cancellation, the plaintiff's attorney in his statement to the jury, without objections from the defendants, added another ground, i. e., that it was the purpose of all parties, including the agent of the mortgage company, to divest the plaintiff of her title and place the same in W.R. George for the purpose of mortgaging the same for the benefit of the guardian and her husband. The relationship between the guardian and the purchaser would not of itself affect the validity of the sale. Tootle v. Payne,
The action of the plaintiff to cancel the guardian's deed to the purchaser and quiet title in the plaintiff is an equitable proceeding, and even though joined with an action in ejectment it must be tried and considered on appeal according to the equitable rules in relation to such proceedings. On appeal in an equitable proceeding, while this court will examine and weigh the evidence, it will not reverse the action of the trial court thereon, unless it be clearly against the weight of the evidence. Pelham Petr. Co. v. North,
It is recommended that this cause be reversed and remanded, with directions to enter judgment for the defendants.
By the Court: It is so ordered.