Clark v. Addison

CLARK, Jr., I. P. Jack J. Daniel trustee, Jr., Clark Error, Plaintiffs in ADDISON, Defendant Error.

No. 36756.

Supreme Court of Oklahoma.

May 14, 1957. Shaw;’ Windham, Poteau, & 'Windham Smith, Shaw, Ark., plain-’ Fort & Jones in error.

tiffs Brown, Kelly Muskogee, H. Duane Strat- City, for deféndant in error. ton, Oklahoma PER CURIAM. appeal from a is an

This County of LeFlore in favor-’ Court District error, error, Addison, the de- defendant one of fendants in who the trial court. will be referred to hereafter as fendant, error filed general are the heirs denial and cross- parties plain- February, other They joined that in he seeking- tiff relief with resect to certain entered agree- oral adventure into Sr., property County. real ment with in I. P. Dunk- LeFlore Andrew lin Bryan and (the Dunklin so Dunklins Dunklin, brought by The action was C. named are the as and same A. Dunklin individually executor of and as the estate Dunklin). by W. B. That the terms of deceased, Dunklin, plaintiffs of W. B. and the to Addison and Clark were error. The of the trial court use knowledge experience their and in lo- disposed parties the claims of of all both cating properties certain timber in LeFlore plaintiff except and defendant as in- here County necessary investiga- and make to volved. The nature of brought the tions proper procedure and institute by plaintiffs the a whole as and the issues purchase sales; through that thereof tax by pleadings plain- raised the as between all purchase the would be made in of the name tiffs and in error as a defendant defendant Bryan Dunklin, Andrew who Dunklin cross-petitioner and material are is- purchase were to money furnish the and appeal. sues on this taxes; pay purchase after that Addison by and land, Clark look after were to the plaintiffs By petition claimed their own- paying taxes the Dunklin and funds land, of ership large tract asserting of a the protecting theft; the timber from the that owned, an property l/j to be then undivided lands and timber thereon would be sold Dunklin, together with an interest A. C. parties the acting together; after the sale as interest executor undivided of ½ Dunklins would be reimbursed for mon- Dunklin, deceased, estate of B. and an W. ey advanced, interest, plus profits n plaintiffs each in undivided interest Dunklin, Bryan divided to Andrew 1/3 1/3 error, totaling remaining was It 1/3. n Dunklin and each to Clark and Addi- Dunklin, Bryan per- alleged same that son. Defendant further alleged that Dunklin, acquired title son as W. B. petition lands in the pur- described were property by That after tax deeds. the death chased himself Clark under the Clark, Sr., I. B. Dunklin and P. W. therewith; agreement and in accordance originally on interests basis acknowledged Bry- defendant the death of each to- A. C. B. interest W. 1/3 Clark, Sr., an Dunklin P. and I. and their Clark, Sr., Dunklin and became I. P. vested petition heirs as plead proportions then claimed. that the interests in succession im- allegations The under the pressed agreements with the and lien ownership assertion of as stated out a set by him claimed such heirs and quiet cause of action all successors in interst had full knowledge usual general allega- ties defendant claims; there had been dis- parties claims of all against the tions as the agreement avowalent and denial of aft- specific There reference to defendant. parties Addison, er the death the two defendant, of which defendant in become error, Roy Legris, defendant did not aware until also named a 1950; defendant, injunctive against March, relief defendant’s demand seeking for re- timber cutting on lief included establishment of his them from the land. claimed profits, petition relating to decree Portions of the determi- interest determin- heirs, reforming ing property deeds the record title to the gen- nation of to be affecting allegations other held in trust under the eral and that partition requested plaintiffs, they fendant are now material. relief after quieting plain- required demanded included of title in to account for his share of the partition. profits tiffs arising from sale. separate parties plaintiff Dunklin

After all tiled to be held him for the bene- overruled, parties fit demurrers which were of the contracting only plaintiff controversy separate then filed answers question arises over the as to cross-petition. The substance whether defendant’s or not the together defendant denying Sr., of which in generally alone, addition to or Clark was to cross-petition raised allegations of the share the transactions to the extent of issues as follows: had failed to interest for services rendered. It was 1/3 disputed file a claim a supplied creditor of the estates that the Dunklins which n financesand Bryan Clark, Sr., Dunklin and I. P. ¿fjrds in- share by applicable ’! now barred statutes terest. limitation; that claim or cause defendant’s Under the joined issues thus defendant of action is in of violation of the statute presented testimony and written in- certain unenforceable; frauds and as further an- support struments in of his contentions. by way cross-petition swer and the of proof substance his was as follows: De- plaintiffs alleged that defendant had con- pursuant fendant testified pre- that to a verted timber from the lands involved to plan Clark, Sr., conceived with I. P. the damage. their two met with the two Dunklins and the, After the issues were drawn on the parties four agreement entered into the ac- pleadings, by parties, agreement of the cording to plead-in the terms which were judgment first was entered in the ex- case cross-petition; defendant’s that in accord- pressly reserving therefrom the and issue ance with the agreement he and-Clark as- prayer plaintiffs of in their purchase sisted in the of some 3177 acres partition and the issues as between the of land of which subject the lands cross-petition ties on the and of defendant part; performed action were a that he had thereto, responsive pleadings all of said various services connection with the ac- subsequently issues to be Ti- determined. quisition property pur- care of the so' quieted plaintiffs tle was fur- it was held, chased and all within the knowledge that, provided prop- ther if and when the and under the direction of the Dunklins. erty proceeds of was sold there- produced Defendant also }/3 paid pending from be into court the de- employed one Feme Fields in defendant’s remaining termination of the issues. period secretary office as during the engaged fendant and Clark had in their Subsequent entry to the judgment of this purported services in connection with the stipulation ap- entered into a agreement with the Dunklins. Her testi- proved by the trial court whereby it was was, substance, mony that Clark and de- $7,743.47 agreed that the sum of presence fendant had discussed in her proper net amount realized from the sale proposed project securing finances property of the to be into court and purchase going the land and were to the which might out of distribution be made aid; solicit Dunklins to financial that Clark remaining in satisfaction of the issues of' proceeded pur- and defendant toward the the case. land at tax pro- chase of timber sales and The trial on the issues reserved from the acres; plats cured some 3177 that she made judgment first was before the with- court purchased purchased land of the jury. out a From the entered written letters and and had various mem- awarding defendant one-half of the mon- oranda maintained files containing va- court, ey deposited in error nature, of this rious instruments which she appeal. files; produced that Clark and position parties plain- working together of all It was defendant property the defendant that the and the records were tiff and was matter written and under purchased agree- kept at tax sales her for both connection with efforts; taken in the Bryan ment and title name of that Clark and their defend- 260. plaintiffs and the tions of both defendant presence ant stated her that the two had entered constituted a with the Dunklins accord- Dail, Springs adventure. Sand Home ing claimed defendant and terms 524. The action as P.2d to receive one-half of the each was brought by plaintiffs the issue raised The records from the one-third interest. properly matters with- exceptions files were admitted in with few court, “equitable jurisdiction” evidence; produced strong- the records so standpoint quieting both from a ly testimony. corroborated defendant’s accounting between the We Another witness from a local bank estab- parties plaintiff think that and defendant years prior lished the fact that for a few by the were entitled to a determination death, to Clark’s defendant and Clark main- prop- ownership court as to the true tained a in bank account and there erty proper thereof distribution was some further corroboration of defend- proceeds in All accounting. its an issues Bryan testimony in Dunklin ant’s equitable ju- being thus raised within the inquired knowledge as to defendant’s court, risdiction the trial there was he, Bryan timber land and that duty upon incumbent the court to hear the

was interested with defendant in some tim- fully in judgment matter and fa- render ber holdings. land party Hoge vor of the entitled thereto. testimony of the careful review From a Hammonds, 145, 192 134 P.2d 559. v. Okl. part of defend- on the and exhibits offered nothing improper pleadings We find in the if ample, are find as a such ant we whole and that there was no error the method believed, accepted sustain and to properly procedure followed court. he was a contention that defendant’s property in a Where by him to ty agreement as testified to an in whose adventure not material joint it is and had made Dunklins and Clark with the taken, since hold the title is the one name agreement. compliance his with full ing regarded will as trustee be that defend- Dunklin testified Andrew Nagle, 159 Ferguson v. Okl. his associates. and that part in the transaction had no ant 219, Property acquired in 15 P.2d 1. was, Sr., agreement, Clark, under the alone property joint becomes the adventure with the perform and share the services to parties. Ferguson Nagle, of all the v. pro- other evidence There was Dunklins. 217, Cassidy Gould, 86 208 supra; v. Okl. error, all part duced on the 220, 780; Hornor, 208 86 Cassidy P. v. Okl. prove that defendant tended to of which P. 775. transaction. party to the not a was joint adven The members of a urge here that de- in error Plaintiffs powers part interests of ture have and cross-petition properly was fendant’s disposition property involved ners in the action, did not state a in the incorporated enterprise general rules the same and was not action cause of partner apply joint adventures and both competent and that evidence sustained accounting between ships in dissolution and barred because not was claim defendant’s 266, Akers, 116 Okl. Boles v. proceedings of the two estate filed in the 182; Co., 136 Dobbins Texas 244 P. v. persons. deceased be 40, 275 P. 643. It cannot said that the es property was vested in the was such that Plaintiffs’ title to prevailed, the two deceased defendant would of either of tates they had if any rather claim claim There was from adventurers. barred been have representatives estate in ac cross-petition of each his By property. amount realized acquisition counting from which the of the manner plead liquidation might adventure be participation in the al and property pro into the estate purchase and dis determined for the leged County ex rel. Reirdon ceedings. State According to the conten- thereof. position prayed possession plaintiffs, and 81 in the County, 183 Okl. Marshall Court of be that all claims of defendants Reirdon, barred 191 Okl. 488; Taliaferro v. P.2d plaintiffs quieted. Nagle, the title of 696; Ferguson v. 43, 126 P.2d supra. it While is.true that it wrong- had Addison and another defendant court that the contend Plaintiffs error land, fully and! from testify removed timber the. Addison permitting E. C. erred in prayed enjoined from further they be had agreements as to conversations required pay -for taking timber' Dunk- Clark, and W. B. with him I. P. taken, Addison was what been C. at the lin, deceased both 'whom were claiming excluded interest present trial. time of the the land. these representatives of legal heirs along parties plaintiff, ceased objection mem- A., living was a C. Dunklin who upon of E. Addison based Section

ber of adventure. 384, O.S.1951, commonly referred to permitted to applicable E. C. Addison was the “Dead Man’s Statute.” for the portion that the adventure of that statute is as follows: acquisition timber handling of party “No action shall be to a civil bank lands involved entered into behalf, testify in allowed to his own Oklahoma, Spiro, at of the two Dunklins (cid:127) respect any or com- transaction gone, P. Sr. had where he and I. personally such munication had previously agreed after the Dunklins had person, when with a deceased neces- furnish the Sr. to executor, ad- the adverse is the sary money buy pay all ex- to the land law, ministrator, kin, next heir at penses holding accruing in the land partner assignee or of such surviving it; disposing of that the Dunklins person, party deceased where such has any profits to be reimbursed full before acquired im- title to the of action cause divided, be to each of the i/$rd were to person; mediately from such deceased nn Clark, Dunklins each to P. I. assignor thing in of a nor shall the and E. C. Addison. The Dunklins were testify in behalf action be allowed to prices; right selling have the fix all to to party any concerning transac- of such and that P. Sr. and E. C. Addison I. personally tion or communication had n perform locate the all to land and per- assignor with a deceased such necessary acquisition, pres- services case; nor any shall such son such disposition land, ervation and of the competent : tes- party assignor or be to equally profits. share net of the in]/$rd any personally tify had to transaction

Andrew, party assignor by such or with a de- surviving or A. C. adventure, partner joint or contractor in joint ceased member of the admitted partner surviving or that P. the absence of I. Sr. and E. C. Addison contractor, Spiro joint surviving when together, had been such but that denied partner joint or contractor' is an ad- profits E. was to share in the net C..Addison ”* * * party. joint of the verse adventure. apply testimony this statute Does to quiet action to title was This filed A. will C. Addison? It be noted of E. Dunklin, individually and as executor of C. party prohibits testifying toas it Dunklin, deceased, of W. B.

the estate party, with a deceased transactions had Clark, Sr., heirs and trustee “ * * * deceased, party clearly quiet where such has and is an action ac- to such cause of against quired title to action im- title in the as all defend- mediately person; from such deceased All defendants were ants named. * * * party nor shall such claiming right, some or as- to be interest or competent testify- land, alleged signor any be be to to owned to 262

' provided “The 12 personally such inhibition under had transaction part- against O.S.1941 384 assignor a deceased is or § acquired absence title to cause of joint contractor in the who has

ner or partner immediately con- surviving from the deceased of his or person, partner tractor, surviving when he becomes witness and when such give respect party. testimony offers or joint contractor is adverse ^{[*] [*]} n » any transaction or communication personally with the deceased.” partner surviving C. Dunklin is a quoted repeated rule above the two deceased contractor of Berry, Preston P.2d party to adverse A. C. Dunklin is an ties. 417. Addison, testimony positive whose Clark, Sr. Dunlclins and I. P. that the two In the recent Fuller- case of Clammer v. present when were all ton, Okl., and E. C. Addison 823, 826, 259 P.2d the adminis- agreement At no trator, final reached. report in his final to a time E. C. Addison distribution, did sought charge sums certain adventure contract against Clammer, the share of one of Mrs. sur- absence of the deceased Objection the heirs. was made her as He testified that viving members. a witness as to charges sought to made Spiro all at when was made against her share of her father’s estate. present four and made'the them were 384, supra, This Court held that Section agreement. applicable, part: was not and said in hand, respondent “In the case at does for- Was the of E. C. Addison occupy position of one who ‘has ground bidden on the above statute acquired title to the cause of action’ that he or cause of action his claim person. from the deceased As a matter “immediately” from either of the deceased fact, she asserting even parties? He could not sue until the ter- action, only trying cause of but was mination of the adventure defend herself one.” it only because was then it could be any the Missouri case of Fulkerson v. determined whether there would be net Thornton, 468, very profits Mo. is fully 68 found after the Dunlclins had been a reasonable discussion the for by of reason the reimbursed for all monies out them. 384, supra. rule in is right We think announced Section It the of E. C. Addison to sue part as follows : was from the in this ac- “ * * * tion rather than from the deceased The reason the of statu- tory prohibition, prevention is the of When the adventure agreement was person one testifying where death has terminated and the claim of E. C. Addison lips sealed the of his adversary; a by was surviving denied the Dunklin and reason possibly which cannot apply the successors the of two deceased members where persons, there are other still then the of cause action accrued to E. C. alive, who co-contractors with Addison, and it cannot reasonably be con- decedent, cognizant the of all the tended he obtained his cause of action was, able, facts as well as he therefore, immediately from either of the deceased opposition to the testimony parties. The claim of E. C. Addison was objected the witness to as being in- here asserted him as a defense to the competent because of death of one of action commenced and asserted the the co-contractors. As the reason for plaintiffs. exist, the rule does no more does the rule.” 472, Gidney, Mike 195 159 v. P. 240, syllabus is it announced as The same rule is 2d announced Home Dairy Robinson, follows: wood Products Co. v. 254 1059, 197, 28, 22 A.L.R.2d Addison’s agreeing Ala. So.2d circumstances to work years from over large a discussed the number cases are with no share agreement to hoped profits an- the states, above various where rule adven- ture. approved. nounced is The issue whether basic clearly The rule is established fact a only pro is an action is who a specific adventure. is in There finding 384, su testifying

hibited from Section corporated in the judgment that he was. Products, Inc., v. pra, as in Mud announced The trial court was the trier the facts. Gutowsky, Okl., 389, and cases 274 P.2d credibility of witnesses and the effect witnesses, Minnie Al therein cited. The and weight to be in given conflicting or Fields len, and Feme Albert H. Moore questions consistent are of fact no interest facts, be determined the trier of the tes their in the outcome. believe that We jury, whether court questions and are not timony, considered in connection when of law appeal. for this Court on Plumer v. Addison- exhibits introduced from Pearce, 526, 813; Payne 208 Okl. 257 P.2d judg files, Clark sufficient to sustain Wade, 222, 190 Okl. 122 P.2d 144. the trial court. ment of case, as Under the of this facts exhibits. have all of the We examined court, determined trial it cannot Exhibit 9 letter from W. B. is a said that against defendant’s claim was one in- Addison to July 14, and asks dated either of the estates of the deceased certain purchase vestigate proposed adventurers, plain hence the contention of to do Dunklin what land and advise Mr. tiffs error that claim should have been purchase. Dunklin Mr. about making filed both estates or either of them investigate the Addison to asked E. C. is without merit. in whose determine for sure records and these name stands closes being There no error the “ * * * you can if best we think words the trial court affirmed. up with Mr. matter

go and take ahead Harris.” HALLEY, CORN, J.,C. V. JOHN- SON, CARLILE, JJ„ BLACKBIRD and 28, 1942, July is a letter dated Exhibit 10 concur. which is Addison to I. P. follows: WELCH, J., DAVISON, WIL- approval finally got “Mr. Dunklin JACKSON, JJ., LIAMS dissent. (1440A), in of the land on balance acknowledges Court aid of the North, met him in Township One I Supreme prep- Commissioners in Court made week he and I Poteau last opinion. a this After tentative aration of his plat he recorded deeds. I a out opinion was written Commissioner W. acres which this makes 3200 we believe J. approved by Commissioners Crawford and deal.” now own Reed, Nease R. H. and Jean James cause point is discussed While assigned of this Justice strange C. Addison briefs, it that E. seems report examination and to the Court for knowledge in his time and would devote Thereafter, upon report and con- Court. project land in- field timber conference, foregoing sideration consideration here for no whatever. volved adopted by opinion Court. he no was ever claim that There not have services. He did cent WELCH, Chief (dissenting). Justice buy involved and the tax land cash persuaded majority opinion the Dunk- I think the .error he expens- up the cash bear the rule in such put the announced case lins may party a man in cannot conceive of this a as to We es. transaction n personally communication such had

party person with a when the deceased

party so here is in effect main- testifying

taining an heirs person

deceased this with whom claimed oral have had an of,

which party’s forms the basis this

claimed right to recover.

It seems to me that the facts stated

majority opinion there is demonstrate that

application here for the statute 12.0.S.1-951

| prohibits 384 which himself

testifying to transactions communica- -and

tions personally person. with a deceased

That statute sets out the circumstances

under which applies, the statute and I think

those present. circumstances are here

(cid:127) DAVISON, I am authorized to state that

J., concurs in these views.

The STATE of Oklahoma ex rel. D William REEVES, Petitioner, . BELLAH, Judge

Lehman D. Munici pal City Cushing, Court of the Oklahoma, Respondent.

No. A-12441. Appeals

Criminal Court of of Oklahoma.

April 17, 1957.

Application for Leave to File Second Pet May 29, Dismissed as Moot

ition 1957. Sellers, Drumright, Jack Joe

Moore, petitioner. Sapulpa, for Grubbs, City Atty., Cushing, Sterling N. respondent. NIX, Judge. presented matter

This court March, day 1957,upon 6th on the motion Reeves, Petitioner, D. of William to dis- Bellah, Lehman D. qualify Judge od the

Case Details

Case Name: Clark v. Addison

Court Name: Supreme Court of Oklahoma

Date Published: May 14, 1957

Citation: 311 P.2d 256

Docket Number: 36756

Court Abbreviation: Okla.