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edge as was acquired by such attorney Notice intention to put upon inin examining and passing on said quiry. titles.

13. Notice to one negotiating for the [See 2 R. C. L. 962.]

purchase of land recently sold under Evidence judgment contrary to. order of court as infant's estate, that

10. Upon an examination of the en- a conveyance of other land to the tire record, it is found that the judg- guardian formed part of the same ment of the trial court is clearly con- transaction, is equivalent to knowltrary to the weight of the testimony,

edge of all facts that would be ascerand that said judgment should be re

tained from reasonable investigation, versed and the relief prayed for grant

such as that payment was not made in ed, upon the conditions stated in the cash but in property. opinion.

[See 20 R. C. L. 346.] Appeal dismissal defect in brief. Attorney and client necessity of 11. That appellants' brief does not

fee. comply with the court rules does not

14. The relation of attorney and require dismissal of the appeal if

client is not dependent upon the pay. there is a substantial compliance, the

ment of a fee. case is in equity, and the interest of [See 2 R. C. L. 954.] minors having a meritorious ground

On Rehearing. for appeal is involved. [See 2 R. C. L. 176.]

Vendor and purchaser bona fide

purchaser — notice. Evidence burden of proof bona

15. One negotiating for lands refides of purchase.

cently sold as infant's estate who 12. The burden of showing bona

comes into possession of facts suffifides of a purchase of land the title cient to put a prudent person upon to which has been secured through inquiry cannot claim to be a bona fide fraudulent sale of a minor's estate is purchaser if such inquiry would have upon the one asserting that fact. led to knowledge of collusion and that [See 10 R. C. L. 898.]

the sale was not for cash as required.

ERROR to the District Court for Garvin County (McMillan, J.) to review a judgment in favor of defendants in an action brought to cancel certain conveyances to land of the minor plaintiffs. Modified.

The facts are stated in the Commissioner's opinion.

Messrs. C. G. Moore, Albert Rennie, lands were sold and conveyed to the J. A. McClure, and Burwell, Crockett, defendants were void, in that the & Johnson for plaintiffs in error. petition failed to allege facts suf. Messrs. F. A. Gillette, William H.

ficient to give the county court McNeal, Charles B. Mitchell, Thomp- jurisdiction, and, further, that the son & Patterson, Blanton & Andrews, George W. Welch, and J. J. Carney

order of the court authorizing the for defendants in error.

sale was based upon a ground not

alleged in the petition or provided Linn, C., filed the following opin- for by law, therefore void. It is ion:

further alleged that by reason of (Plaintiffs in error will be desig- fraud practised by the defendants nated plaintiffs, and defendants in A. L. McDonald, T. H. Vaughan, and error, defendants.) The plaintiffs Henry Hickman, in collusion with are minor children of A. P. Cash, the defendant A. P. Cash, father suing through their legal guardian, and legal guardian of the minor A. F. Pyeatt, the purpose of which plaintiffs, as a result of which fraud suit is to have canceled certain con- the purchase price for which said veyances to the lands involved, lands were sold was not paid in which comprise the allotments of cash, but partly in cash and partly said minors and their deceased in depreciated property situated in mother. Briefly stated, the grounds Oklahoma City; that such fraud and of recovery alleged are that the pro- conduct of said defendants was bate proceedings under which said known to the other defendants, or

1

(- Okla. 179 Pac. 42.) by the use of ordinary diligence health; hence that it would be might have been known, and by rea- greatly to the interest of said mison thereof the title to said lands nors that their father and legal did not vest under and by reason of guardian should cause said lands to said conveyances. The defendants be sold to these parties and the proA. L. McDonald and T. H. Vaughan ceeds thereof invested in other filed answers, denying generally and property or held by the guardian to specifically the allegations of the pe- be paid out for maintenance, etc. tition and setting up the probate Feeling thus concerned about the proceedings and the conveyances plaintiffs' welfare, they induced thereunder. Defendants Prudential the guardian to file a petition for Insurance Company of America the purpose of causing said lands and the Deming Investment Com- to be sold, and agreed with him in pany denied any knowledge of the advance that they would guarantee fraud, and relied upon said probate to bid upon said land the sum of proceedings, and claimed to be and claimed to be $26,000; and

$26,000; and each of the three mortgagees for value without no- gentlemen, as the testimony shows, tice or knowledge of any fraud as deposited $250 in a bank at Maysalleged. The defendant Jennie C. ville, guaranteeing their good faith, Estus denied generally and specific and that they would bid the stipucally the allegations of the petition, lated amount at the sale. The peand relied on her purchase, and tition was filed, and in due time the avers she is a bona fide purchaser in court made an order directing the good faith and without notice of any guardian to proceed to sell said fraud, as alleged. Said proceed- lands at public sale for cash in ings came on for trial to the court hand. Said sale was made, and the without the intervention of a jury, defendant A. L. McDonald, for himand upon the conclusion of the tes- self and associates, purchased the timony the court found generally in land, agreeing to pay therefor the favor of the defendants, holding sum of $26,000. This sale was that said probate proceedings were made on March 26, 1910. About the regular and in accordance with the time or soon after the lands had law, and that none of said defend- been bid in by the defendant A. L. ants were guilty of any fraud af. McDonald he found a purchaser for fecting the title to any of said land. the same in the personage of Mrs. The court also found that the full Jennie C. Estus, and contracted to agreed price of said land had been convey these lands to her for the paid in cash. From this judgment consideration of $48,620, $15,000 of the plaintiffs have prosecuted their which was to be paid in cash, which appeal by filing their petition in money was to be secured by the error, with original case-made at- said defendant Jennie C. Estus, netached. There seems to be but little gotiating a loan upon the property dispute in the testimony, but the con- involved; and the balance to be paid troversy mainly arises over the by executing certain notes and question as to what conclusion the mortgages aggregating $5,500 as facts show. Briefly stated, the un- commission due the first defendants disputed evidence shows that the named in looking after the interest defendants A. L. McDonald, T. H. of the minors by inducing the Vaughan, and one Henry Hickman guardian to cause said lands to be conceived the idea that it would be sold. That the guardian A. P. Cash to the interest of these minors that learned that said property had been their allotments, aggregating about resold for a consideration of $48,750 acres of Washita Valley lands, 620, and, feeling that there was too were insufficient to maintain and much profit being made in which educate said minors, and that the he was not to share, he managed to climatic condition was not con- convince himself that it was not for ducive to their continued good the best interest of the minors to carry out said deal; hence refused was appointed.

There is some to execute a conveyance.

testimony in the record tending to After much persuasion and co- show that the guardian A. P. Cash ercion without avail, defendant had defaulted and failed to account Vaughan conceived the idea that his for certain moneys in his hands as family physician, Dr. Price Patter- guardian, and that a suit was insti- . son, might be used as a convenient tuted against certain surety cominstrument to again convince the panies as his bondsmen, which was said father and guardian of the ad- compromised for a consideration vantages of said sale and induce paid of something over $9,000. This him to execute the deed, and for his suit was instituted and settled aftservices he was paid the sum of er the judgment had been rendered $500. After a brief period of time in the present suit in the trial court. Dr. Patterson reported that he was We are met at the threshold of successful, and that the sale would this controversy with a motion to go through, provided that the Okla- dismiss, and the first ground urged homa City property, which was is that the brief of plaintiffs in valued at the sum of $28,620, should error does not comply with rule 26 be conveyed personally to A. P. of this court (165 Pac. ix.). While Cash, which, in addition to the the brief does not

Appeal$15,000 borrowed on said property, strictly comply with dismissal

defect in brief. and the second mortgage of $5,500, this rule, yet it is a was to constitute the full consider- substantial compliance, and, this ation for said conveyances. Said

Said being an equity case and the interparties, including Dr. Patterson, in est of minors involved, this court company with A. P. Cash and his would hesitate to dismiss a meri. wife, proceeded to Oklahoma City, torious appeal where palpable inand in the office of the attorney of justice would be done to minors for the Prudential Insurance Company failure on the part of counsel to and the Deming Investment Com- strictly comply with the rule menpany met defendants A. L. McDon- tioned. It is further very earnestald and Jennie C. Estus, where, aft- ly insisted that the case should be er some parleying and discussion dismissed for the reason that the for two or more days, all of the matters in controversy have been various instruments, conveyances, compromised and settled, as alleged, mortgages, etc., were executed on or in the motion, in a certain cause about the 30th day of September, filed by the present guardian for and under an agreement they were the minors in May, 1913, against all placed in the hands of W. H. the former guardian and his sureMcNeal, attorney for the Deming ties. Attached to said motion are Investment Company and the Pru- certified copies of said proceedings dential Insurance Company, before and the settlement, etc. They now whom practically all of the instru- insist that the filing of said suit ments were acknowledged, and who and the compromise was a settlealso acted as agent or attorney for ment of all the matters in controthe defendant Jennie C. Estus, with- versy in this suit, therefore, a bar out compensation, however, from to further proceedings in this case. her, and which instruments were In support of their contention, recorded by him after the condi- counsel cite the cases of Price v. tions under the agreement had been Pawnee County, 8 Okla. 121, 56 Pac. complied with. The record shows

. The record shows 959, Smith v. Boatman, 29 Okla. that the instruments were filed for 818, 120 Pac. 599, and Tinker v. Mcrecord on the 10th day of October, Laughlin-Farrar Co. 29 Okla. 758, 1910. Subsequently the defendant 119 Pac. 238, as being in point. ExA. P. Cash was removed as guard- amination of these cases discloses ian, and the present guardian, that the actual controversy in the through whom this suit was filed, suits involved in the appeals there

dismiss

review

(- Okla.

179 Pac. 42.) were actually settled pending the 4. Under the facts and circumappeal, and it is only necessary to stances disclosed by the record, read the cases to prove their inap- should the defendants the Prudenplicability to the question now be- tial Insurance Company of America, fore the court. We are of the opin- the Deming Investment Company, ion that had proceedings against the and Jennie C. Estus be held to be sureties on the bond been terminat- bona fide purchasers for value, ed prior to the trial of the present without notice? case, the settlement made could not This being a cause of equity jurishave been successfully pleaded as a diction, the rule is that if the judgdefense or a bar to the prosecution ment of the trial court is clearly of the present suit. In such an in- contrary to the weight of the testi

stance the question mony and resulting in an injustice -motion to

of estoppel might to the plaintiffs, this court will subsequent suit.

have been a serious weigh the testimony, and either question, but we are clearly of the enter such decree as should have opinion that the motion to dismiss been entered, or reis not well taken, and the same is verse and direct -equity-scope hereby denied.

such a decree to be Plaintiffs allege some twenty- entered by the trial court. Schock

. eight assignments of error, but we v. Fish, 45 Okla. 12, 144 Pac. 584; are of the opinion, under the view Wimberly v. Winstock, 46 Okla. we take of this case, it is only neces- 645, 149 Pac. 238. sary to consider the two first al- We are of the opinion that the leged:

first question must be answered in “(1) Said court erred in over- the affirmative. While the petition ruling plaintiffs' motion for a new filed in the county court by the trial and in refusing to grant a new guardian impresses us as being trial herein, to which plaintiffs in rather in stereotype form, yet it, in error duly excepted.

a general way, sets out the condi“(2) Said court erred in render- tion of the minors' estate, and aling judgment against plaintiffs in leged one of the error in favor of defendants in grounds in the stat- ward-petition error upon the facts proven, to

ute authorizing a for sale of landwhich plaintiffs in error duly ex- sale, and comes cepted.”

within the rule laid down in the Under these two assignments may case of Sockey v. Winstock, 43 Okla. be discussed the following propo- 758, 144 Pac. 372, and Eaves V. sitions:

Mullen, 25 Okla. 679, 107 Pac. 433. 1. Did the petition filed by the The second question presents a guardian in the county court give more difficult proposition. It is well the court jurisdiction to make an settled by the authorities that a order authorizing the sale of the judgment may be void for want of lands involved ?

authority in a court to render 2. If it be held that such petition the particular judgment rendered was sufficient, was the county court though the court may have had authorized and did it have jurisdic- jurisdiction over the subject-matter tion to make and enter the order and the parties. Or, in other which was made authorizing the words, as applied to the case at bar, sale ?

though the petition on file by the 3. Does the preponderance and guardian requesting the sale of the weight of the testimony show that minors' lands was sufficient to conthere was such fraud practised by fer jurisdiction upon the court to the defendants in collusion with the grant the sale, yet, if the court finds guardian to render the sale and the that the grounds therein alleged are attempted conveyances of the lands not supported by the facts, the in question void?

question is, Would the court be au

Guardian And

suficiency.

thorized to enter a judgment order- volve the propositions stated by ing the sale of the land upon some counsel for defendants on page 32 other ground not disclosed in the pe- of their brief in the following lantition or not authorized by the guage: “There are really only two statutes? If it were clear that the questions of fact involved in the order of the court in the present in- case: First, whether the guardstance, ordering the sale. of the ian received the whole purchase lands in question, was upon some price in cash; and, secondly, if he ground not disclosed in the petition did not, whether Mrs. Estus and the

and not provided other defendants who held title unJudgment

for by the statute, der McDonald were bona fide pur. validity.

we would not hesi- chasers or encumbrancers." tate to hold that such order would If we find the weight of the tes. be void; but we entertain some timony shows that the guardian did doubt on this question, in that the not receive the full purchase price court found in making the order of the property in cash, then in such that “it is necessary for the pur- event it is not seriously contended pose of reinvestment and is for the

that the sale would not be void so best interests of said minors that far as affects the defendants Mcsaid real estate should be sold.” Donald, Vaughan, and, Cash, the

Section 5498 of the Revised Laws guardian; but it is seriously conof 1910 provides that the real es- tended that the rights of the other tate of the ward may be sold for the defendants could not be affected as purpose of maintaining and educat- they are said to be innocent bona ing the ward, etc. Section 5499 pro- fide purchasers. We have not the vides, in substance, that if it ap- slightest doubt from this record pears to the satisfaction of the that the guardian did not receive court upon the petition of the the full purchase price of the propguardian that the ward's real es- erty in cash, and that the only cash tate should be sold and the proceeds received by him was the $15,000 thereof put out on interest or in- which was obtained by a loan upon vested in some productive stock, or the property involved. That the in the improvement or security of Oklahoma City property entered any other real estate of the ward, into the negotiation for the minors' the same may be sold. The peti- lands and constituted a large part tion, as well as the order of the of the purchase price cannot fairly court, is more or less general and be denied. In fact, the only evivague, tending to show a necessity dence to the contrary is a statement for such sale, yet we have held that from Cash to the effect that he had the petition was sufficient to give the balance of the purchase price in the court jurisdiction, and, after the bank, and the further fact that having obtained jurisdiction, the the report which he filed aftercourt should not be held to have lost wards would indicate that he had jurisdiction, unless it clearly ap- received the purchase price, but -exceeding

pears that it en- this showing is much discredited by tered a decree not the fact that it reasonably appears

authorized under that the report was partially false, the facts or not warranted by law; and that he was short and did not

and, in that the have the cash on hand; and, furInfant-sale of

question is not free ther, that there is a total lack of

from doubt, we pre- showing in the record of any other fer to place our decision upon other consideration paid for the Oklagrounds.

homa City property, and many cirThe third and fourth questions, cumstances showing that it entered which are necessarily presented by into the consideration for the sale the record, relate to questions of and conveyance of the minors' land. fact on the issue of fraud, and in- Mr. McNeal, the attorney for the

authorityproof.

land--authority of court.

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