Barnes v. Lynch

STATEMENT OF THE CASE. This suit was brought to recover the title to certain lands in Kay county, including the southeast quarter, the southwest quarter, and the northwest quarter of section 27, township 26, range 2, the southeast quarter having originally been, before this controversy began, the property of C. W. Broadhead; the southwest quarter the property of the defendant, Lynch, and the northwest quarter having been the property of D. F. Stiles, and by him conveyed to H. C. C. Stiles. The town of Ponca City, or the most of it, was platted upon these three quarters of land. While the suit was begun for the recovery of blocks and lots upon each of these quarters of the section mentioned, its ultimate scope, as finally determined by the ruling of the court, involved only nine blocks in the northwest, or Stiles', quarter of the section. The object of the suit, as set forth in the petition, was to set aside deeds to the real estate in these sections of land and to decree the title therein to be in the plaintiffs, and for an injunction against the defendants, J. W. Lynch and Minnie Lynch, his wife, to prevent them from disposing of it. *Page 160 The petition set forth that "on the 26th day of August, 1895, the plaintiff and the defendant J. W. Lynch, agreed upon a partition and distribution of said real estate," which stood in the name of "The Ponca City Land and Improvement company," and that "it was agreed that the plaintiffs should have and receive, as their distributive share of said real estate, the town lots and real estate" claimed in the petition and which included the nine blocks of the Stiles, the northwest quarter of section 27, the real estate in question; that Lynch had fraudulently procured the plaintiffs to execute deeds to him of the land for the distributive share of the plaintiffs under the division referred to, upon a pretense and representation of Lynch that such conveyances were necessary to perfect the title to the property, and that the deeds had been procured by Lynch from the plaintiffs wrongfully and in fraud of their rights. The petition averred that the defendants, D.C. Pryor, H. F. Hatch and the Farmer's National bank of Arkansas City, Kansas, claimed to have interests in the real estate. Immediately after the filing of the petition, which was case number 452 on the docket of the district court of Kay county, another cause was instituted, wherein D.C. Pryor was plaintiff, and the Ponca City Land and Improvement company and others were defendants, which cause was numbered 453 on the docket, and which was consolidated with this action. Loren W. Krake and Andrew Waugh and Gilbert B. Barnes were also made parties to the consolidated case. On the 26th of December, 1897, the consolidated case came on for trial upon the petition of the plaintiffs, the amended answers *Page 161 and cross-petitions of Prior, Howe, the Ponca City Land and Improvement company, and J. W. Lynch. The amended answers and cross-petitions denied that the plaintiffs and Lynch were the owners of the real estate contended for, or that they had any right to receive any distributive share thereto; they averred the incorporation of the "Ponca City Land and Improvement company," under the laws of Kansas; that the defendant, J. W. Lynch, was elected president, and the plaintiffs, Dalton and Barnes, vice-president and secretary, respectively, which offices they continued to hold, and that they each owned, respectively, a one-seventh interest therein, and were entitled to the issuance of its stock to that amount, by reason of money and subscriptions paid in and services performed; that Lynch, Barnes and Dalton had, as alleged in the petition, undertaken to divide the property of the incorporated company among themeslves, and had executed conveyances between themselves, by which they distributed it among each other, after the purchases and payments had been made therefor on behalf of, and with the money of, the incorporated company, and that the distribution which was then sought to be made between the said individuals, was made by fraud and collusion, and for the purpose of defrauding the cross-petitioners and the corporation. The answer and cross-petition of the defendant Lynch, himself, declared that the real estate in controversy was the property of the Ponca City Land and Improvement company, and that after the pretended distribution of the property of the company between Barnes and Dalton and himself, on the 26th day of August, *Page 162 1895, that he had procured the deeds to be made to himself to the whole of said property, including that distributed by the agreement of Barnes and Dalton to himself, and that these deeds were without consideration, and he renounced any claim to the property in his own name, declaring that he had procured the plaintiffs to make the conveyances to him, in order that he might hold the property for, and convey it all back to, the Ponca City Land and Improvement company. The company also filed its amended answer and cross-petition, denying that the plaintiffs were entitled to any interest in, or right to the property; that all of the conveyances of the lands in question made to the plaintiffs and to Lynch were made for the purpose of defrauding the company, and prayed that it might all be decreed to be conveyed to it. It was averred in the pleading, and shown by exhibits filed in connection therewith, that after the distribution of the property, as alleged, between the plaintiffs, Barnes and Dalton, and the defendant, Lynch, that the plaintiffs had immediately thereafter conveyed, by deeds and mortgages, the whole of that portion of the lands which they had received by deeds executed by Lynch, as president, and Barnes, as secretary, in execution of the alleged fraudulent distribution of August 26, 1895, to the Farmers National bank, and H. F. Hatch, and H. J. Hatch, all of Arkansas City, Kansas. The defendants, H. F. Hatch and H. J. Hatch, and the Farmers National bank of Arkansas City, the grantees and mortgagees in these deeds and morgages, filed their answer in the cause and "disclaimed any and all interests, claims and estates of any kind, character or *Page 163 nature whatever in any and all of the lands mentioned and described" in the special pleadings on file in the case. It appeared in evidence that on the 22nd day of August, 1895, that the nine blocks in question on the Stiles quarter had been conveyed to Barnes and Dalton by H. C. C. Stiles, who held the title; that on August 26, the alleged fraudulent distribution of all the lands alleged to belong to the company was executed by the plaintiffs and the defendant, Lynch, and that on the 12th day of December, 1895, Lynch came to Barnes and Dalton, and represented to them that, owing to some illegality or defect in the incorporation of the Ponca City Land and Improvement company, that the deeds from it to Barnes and Dalton were invalid, and that they could not give a good title to those who should purchase from them; that counsel had been consulted in regard thereto; that such was their opinion, and that the proper way to cure the defect was for the plaintiffs to convey the lands back to the company, for the company to convey the same to Lynch, and that Lynch and his wife would then convey the same to Barnes and Dalton, and that in pursuance of this advice, which was corroborated by that of their own attorney, the plaintiffs executed the deeds suggested to the company, and procured the company to sign deeds conveying the lands from the company to Lynch, and also procured to be prepared deeds conveying the lands from Lynch and his wife to the plaintiffs, which were delivered to Lynch and signed, and acknowledged by his wife, Minnie Lynch, and that it was agreed when these deeds should be signed and acknowledged by Lynch, that the deeds of the plaintiffs to the Ponca City Land and Improvement *Page 164 company should be delivered to the company, and that the company was to deliver them to Lynch, and that then Lynch was to deliver the deeds, signed by himself and wife, to the plaintiffs; that Lynch never signed the deeds prepared for himself and wife, nor ever delivered them, but that, on the contrary, he obtained possession of the deeds from the plaintiffs to the Ponca City Land and Improvement company, and of the deeds from the company to himself, by falsely pretending that he desired to compare the description of the property in those deeds with the descriptions thereof in books in his own office, and that if he found the same to be correct, he would then sign and execute the deeds from himself to the plaintiff; but that, instead of doing so, he proceeded immediately to place the deeds from the plaintiffs to the company, and from the company to Lynch, upon record. The consideration set forth in these deeds, or the most of them, was one dollar. The case was tried before the court and a jury. The order of consolidation by which the cases numbers 452 and 453 had been consolidated, was by the court, on trial, set aside, no finding being made as to the defendants, Minnie Lynch and Gilbert B. Barnes, and the case proceeded as between the plaintiffs, Barnes and Dalton, and the Ponca City Land and Improvement company, the land then in issue being the nine blocks in the Stiles quarter. Upon the issue thus pending, the jury found in favor of the Ponca City Land and Improvement company, the issue having been as directed by the court, whether or not "the defendant, cross-petitioner, the Ponca City *Page 165 Land and Improvement company, is the equitable owner and entitled to recover that property." Motions for a new trial having been heard and refused, C. L. Swarts, who had theretofore appeared in the case only as the attorney filing the disclaimers of H. F. Hatch, H. J. Hatch, and the Farmers National bank of Arkansas City, sought and procured leave to appear for the defendant cross-petitioner, the Ponca City Land and Improvement company, and thereupon moved the court to dismiss the answer and cross-petition of the defendant, the Ponca City Land and Improvement company. This application was refused by the court, on the ground that it was made in the interest of the plaintiffs, and not made in good faith in behalf of the Ponca City Land and Improvement company. Opinion of the court by The defendant in error filed his motion to dismiss the appeal in this court — first, because, as shown by the record, Judge Bierer, the judge who tried this case below, attempted to settle and authenticate this record at the city of Guthrie on July 7, 1898, the term of office of said judge having theretofore expired, and his successor having been inducted into office on the — day of March, 1898, and, at the time when Judge Bierer's term of office expired, no time had been fixed by order of said judge, or the court, or otherwise, for the signing and settlement of said case; and, fifth, because the plaintiffs in error acquiesced in the judgment and decree of the trial court, and, over the objection and exception of the defendant in error, in open court, asked *Page 166 and obtained leave to and did continue the litigation in this case in the trial court, by filing a supplemental petition, praying for the appointment of a referee, and for an accounting between the plaintiffs below, here now plaintiffs in error, and the defendant, the Ponca City Land and Improvement company, of certain moneys claimed to have been paid by the plaintiffs below under such circumstances as would constitute an equitable lien on the real property, the subject matter of the action, in which the plaintiffs claimed to own the property in their own right absolutely, which claim was, by the verdict of the jury and the decree of the court, disallowed, and that the filing of the supplemental petition, after the determination of the main case, constituted an acquiescence in the decree now sought to be reversed by this proceeding in error, and thereby waived their right to prosecute the proceeding here, and is now thereby estopped from denying the correctness of the judgment and decree. Upon these assignments of error this cause was heretofore considered by this court at the January, 1899, term, and determined, and is now again here upon a petition for rehearing, which was allowed and ordered at the June term of 1899. Upon the first of the foregoing propositions, the facts are that the decree in the trial court was entered on February 21, 1898, when one hundred days were allowed plaintiffs in error to make and serve a case-made, fifteen days thereafter were given to suggest amendments thereto, the case to be settled upon five days' notice. The case was served on May 28, 1898; July 1, 1898, notice was given that the case-made would be presented *Page 167 for settling and signing on July 6, 1898. The term of office of Justice Bierer, the trial judge, expired upon the 28th day of February, 1898; the case was signed and settled by him on July 7, 1898. Upon this state of facts this court heretofore determined, Judge Tarsney writing the opinion, that: "Where an action is tried before a district judge and time given to make a case, and the term of office of the judge expires during the time fixed for making the case, he may settle and sign the case after going out of office, although at the time he retired from office no time had been fixed for settling and signing the case. Section 567, Code Civil Procedure, authorizes an ex-judge to settle and sign a case if, at the time of his retirement from office, either the time for making and serving case had not expired, or, if it had expired, the retirement of the judge was pending the time fixed for settling and signing the case." The statute to be interpreted is section 567 of the Code of Civil Procedure of the Statutes of Oklahoma, 1893, which provide, that: "In all cases heretofore or hereafter tried, when the term of office of the trial judge shall have expired, or may hereafter expire before the time fixed for making or settling and signing a case, it shall be his duty to certify, sign or settle the case in all respects as if his term had not expired." This statute contemplates "all cases" in which "the term of office of the trial judge" shall" hereafter expire before the time fixed for making" a case, or (2) all cases in which the term of office of the trial judge shall "hereafter expire," before the time fixed for settling and signing the case. There are here two contingencies in which *Page 168 a trial judge may certify, sign or settle a case, one of which is when the party taking the appeal shall have procured an order of the court which has not expired before the term of the trial judge has expired, and the other is when the party taking the appeal shall, after the case has been made, yet also shall have procured an order from the judge for "settling and signing a case." The statute appears to have provided the remedy of an appeal notwithstanding the term of office of the trial judge shall have expired, in behalf of such appellants as shall have been diligent in procuring orders for making a case-made or for settling and signing such a case made, before the expiration of the term of office of the judge, and if the time was fixed for (1) "making" or (2) "settling and signing a case," which have, either of them, been procured during the life of the judge's term of office, that then the appellant shall have the benefit of the appeal, notwithstanding the fact that the judge's term of office may have expired before the case is made or before, as provided by the statute, it has been "settled and signed." Several cases are cited to us from the determination of the supreme court of Kansas upon this statute, which are not inconsistent, but are, we think, confirmatory of these views. These are: Thurber v. Ryan, 12 Kans. 455; Railway Company v.Corser, 31 Kans. 705, and Railway Company v. Wright, 53 Kans. 272. The case of the Farmers Alliance Insurance Company v.Nichols, 50 Pac. Rep. 940, was determined in the court of appeals of Kansas, S.D., November 16, 1897. It was determined adversely to the view which we now hold. *Page 169 Its facts are essentially similar to the facts in the present case. It is determined upon the authority of Railway Company v.Wright, cited above, which does not support its conclusion, which is that: "Where the term of the district judge trying a case, expired when no time had been fixed by the order of the court for settling and signing a case, Held: that the judge whose term of office had expired, was without authority to settle and sign the same." We suppose that the conclusions of that court would be right if the statute had provided that the trial judge whose term shall "hereafter expire" might "before the time fixed for making" and "settling and signing a case," instead of saying as it does, that he should have the power to sign and settle the case in all cases in which his term shall expire hereafter "before the time fixed for making or settling and signing a case." We think that by the use of the disjunctive conjunction "or" the law making power, in enacting this statute, provided two contingencies in which a judge may settle and sign a case after his term had expired, instead of one contingency, which seems to have been contemplated by the court of appeals of Kansas in the case of Farmers Alliance Insurance Company v. Nichols. But the Farmers Alliance Insurance Company v. Nichols went to the supreme court of Kansas, and was, on the 7th day of January, 1899, affirmed, the court there saying, that: