Jackson v. Carroll

ELTING, J. This suit was commenced in the district court of Carter county, Okla., by Riley Jackson against J. S. Carroll and others, setting up that he was the owner and entitled to immediate possession of the southwest quarter of the northwest quarter of section 29, township 3 south, range 1 west. There are three counts in his petition : First, an action for ejectment. Second, in the nature of an action to quiet title. Third, for recovery of rents for the wrongful dispossession of said lands for a period of six years at $100 per year. In his petition, Riley Jackson alleges, in substance, that he is a Chickasaw freedman, and that said lands were his distributive share as an allottee of the Chickasaw Nation, and sets 'fo-rth a copy .A his patent to said lands. J. S. Carroll, defendant, filed answer, denying the allegations of the plaintiff’s petition, and sets up by way of affirmative defense that he, Ji S. Carroll, is the owner in fee simple title of the lands sued for by plaintiff, and claims said title by reason of a guardian’s deed dated July 8, 1912, from Ben Wright, the duly appointed, qualified, and acting guardian of Riley Jackson, Lidia O. Jackson, and Andrew Butler. Then alleges the due recordation of the said deed, and that he had collected the rents and profits, paid the taxes, and made valuable improvements thereon by greater buildings, cultivation, and otherwise reclaiming said land to the amount of $2,000. Asking thát title be quieted in him, and for all necessary relief, and attached as an exhibit to his answer a copy of the guardian’s deed. To this answer Riley Jackson filed a reply, denying each and every allegation of defendant’s answer in so far as the same does not admit the allegations of his petition; denying that Ben Wright was ever the guardian of the plaintiff, denying that the court had authorized Ben Wright to sell the land mentioned in plaintiff’s petition, and denying that any of the matters were ever authorized by a court having jurisdiction of said matter. Plaintiff alleged, further, that he was informed and believed that a purported order appointing Ben Wright as a guardian was made in the county court of Carter county, and that said order was void and of no effect. That at the time of said purported appointment the plaintiff was in the penitentiary at McAlester, Okla. That he never signed a waiver and never nominated Ben Wright as a guardian, and no notice was ever served upon him of said proceeding, and that *232 the same was without his knowledge or consent, and that Carroll had entered into a conspiracy with Ben Wright, the purported guardian, to cheat and defraud this plaintiff out of his property, and that Carroll had Wright appointed with a vie,w of purchasing said lands at fraudulent sale. That he never paid the guardian the consideration for said lands except through a fraudulent devise and a purchase by the guardian of worthless property from the defendant Carroll. That Carroll had signed the bonds necessary for Wright to make, and Carroll had Wright, immediately upon his appointment, to institute proceedings with a view to carrying out said fraudulent sale. Alleging, furthermore, that the plaintiff, at the time of the purported appointment of Ben Wright as his guardian, was more than 15 years of age, and that he was entitled to notice of said proceeding and entitled to nominate his own guardian. In substance, alleging that said sale was void, first, for fraud perpetrated by the purchaser in securing the appointment and the sale; and, second, because the appointment of the guardian~was void by reason of failure to give the notice as required by law to the plaintiff. A jury was waived and the cause proceeded to trial before the court. The court, after hearing the evidence, rendered a judgment in favor of the defendant J. S. Carroll, quieting title in him and removing cloud from title and enjoining Riley Jackson from claiming or asserting any right, title, or interest in said estate. Motion for a new trial was filed, and the same overruled by the court, and appeal lodged in this court by Riley Jackson, plaintiff below, plaintiff in error herein. There is attached to the evidence in the case-made a copy of the petition of the appointment of the guardian; the waiver of the mother of the plaintiff; a written nomination by Andrew Butler of Ben Wright to be his guardian; order appointing Ben Wright as the joint guardian of Riley Jackson, Lidia O. Jackson, and Andrew Butler; oath- of guardian; guardian’s bond, signed by Ben Wright, Clyde Johnson, and J. S. Carroll; letters of guardianship; petition to sell real estate; order for hearing petition to sell real estate; an appraisal of the lands of the three minors; the bid of J. S. Carroll in writing; return of sale; order confirming sale; guardian’s deed by Ben Wright -to J. S. Carroll; an order of the county judge directing guardian to buy a team for $225 and credit the same on the purchase of the land, and an order directing Ben Wright to loan J. S. Carroll $200 on a first real estate mortgage. An examination of the record in this case leads this court to conclude that this sale is void absolutely upon the face of the proceeding, and for reasons other than the fraud alleged and contended for by plaintiff in error and other than upon the grounds of the voidness of the proceedings by reason of failure to give the plaintiff fn error notice oftthe proceeding for the appointment of a guardian; these last two -being the questions specifically raised by the plaintiff in error in liis motion for new trial, and the overruling of which contentions by the trial court is assigned as error in this court. It is true that the grounds upon which we reverse this ease and direct judgment for the plaintiff in error were not raised by the plaintiff in error in this court, but we hold that this '’ourt has authority to review this record and either direct or render judgment such as the record discloses that the trial court sh raid have rendered in the first instance. In the case of First Nat. Bank of Soper v. Beecher, 62 Okla. 36, 161 Pac. 327, the syllabus, par. 3, reads as follows: “Where it appears’ that the court committed prejudicial error in directing and •rendering the judgment rendered,’and only questions of unmixed law are involved, and the record of the court discloses what judgment should have been rendered, this court will not reverse and remand said cause for another trial, but will reverse and remand said cause with instructions to the trial court to render judgment which it properly should have rendered.” To the same effect is Andrew v. Thayer, 69 Oklahoma, 171 Pac. 1117, and numerous other decisions by this court. We will now -proceed to set forth our reasons why this record discloses that the sale is void upon its face and that the guardian’s deed is an.absolute nullity. The petition for the appointment of a guardian, signed by Ben Wright, asks that he be appointed the guardian of Riley Jackson, Lidia O. Jackson, and Andrew Butler, minors, in Carter county, Okla., and that they are of the ages of 17, 12, and 15 years, respectively. The petition for appointment further alleges that, as Chickasaw freedmen, the said minors had lands allotted to them as follows: To Riley Jackson, the lands heretofore described in the statement of the case, and being the lands in controversy in this case; and to Andrew Butler, *233 the southwest quarter of the southwest quarter of section 20; and. to Lidia O. Jackson, the northwest quarter of the northwest, quarter of section 29, township 3 south, range 1 west. After Ben Wright was appointed guardian of these three minors, and on, to wit, March 25, 1912, he filed a petition to sell the real estate of the three minors. Said petition, after alleging that the personal property of said wards consisted of nothing, alleged the following: “That the said wards owned the following real estate of the approximate value of $1,200, to wit Then it described the three allotments heretofore designated. The order of sale does not appear to toe in the record. The return of gale shows, however, the following-recital : “Comes now Ben Wright, guardian of the estate of said above named minors and shows to the court that pursuant to the decree of the court entered herein, on the 24th day of April, 1912, authorizing him as such guardian to sell all of the real estate belonging to said above named minors hereinafter described; he caused public notice to be given as provided by law and said order by publication in the Ardmore Statesman for four consecutive weeks and 'by posting three notices thereof, that he would on the 25th day of June, 1912, at the hour of 2p. m. sell to the highest bidder subject to confirmation by said court said described lands; that on the 25th day of June, 1912, he sold said real estate, to wit: S. W. of S. W. % of sec. 20, and S. W. % of N. W. % of sec. 29, and N. W. % of N. W. % of sec. 29, all in township 3 south and range 1 west to J. S. Carroll, for the sum of $1,200 on the following terms, to wit: Cash on delivery of deed; that said Jj. S. Carroll was the highest bidder therefor, and said sum of $1,200 the highest and best sum bid, and that said sum of $1,200 is not disproportionate to the value of said property. “Wherefore, said Ben Wright prays the court to enter its order setting said return for hearing, and that upon said hearing being had he be directed to execute a proper conveyance thereof to said purchaser. “Dated this 25th day of June, 1912. “Ben Wright.” It appears from this.return of sale that the three allotments, as directed by the order of the court, were sold to J. S. Carroll in one tract for the lump sum of $1,200. On the 8th day of June, 1912, the county judge confirmed said sale of said three allotments for the sum of $1,200 to J. S. Carroll, and directed deed by guardian to J. -S. Carroll to said lands, and on the 8th day of July, 1912, the guardian made a deed of said allotments in one tract for a lump sum of $1,200 to J. S. Carroll. The notice of sale in this sale proceeding is not in the record but we have a right to conclude from the recitals in the return of sale that the advertisements and notice of sale were of the sale of the land in one tract, and not as separate tracts. We hold that each tract shpuld have been sold separately, and if not advertised in- separate advertisements, they should have been separated in the same advertisement or notice of sale. The provisions of the statute as to the kind, of notice of sale that is required, whether at public or private sal-e, require that the lands and tenements to be sold must be described with common certainty in the notice. This, of course, has reference to the lands belonging to each particular ward. A portion of the first paragraph of the syllabus of the case of Perkins et al. v. Middleton et al., 66 Okla. 1, 166 Pac. 1104, reads as follows: “The authority of a guardian to sell and convey the real estate of his ward rests entirely upon the statutes. (Such real estate cannot be sold or conveyed by the guardian except for the purpose and upon the terms and conditions prescribed by the statute.” This is, to say the least of it, a very unusual proceeding, and one that has probably been but rarely resorted to, and hence the occasions for courts to pass upon the legality of the same have been very rare.. After considerable search, we have -been unable-to find any case where any court has directly passed upon this question; but as a proceeding it is so out of consonance with any elementary sense of right and proper legal principles and procedure that' -we think citation of authority is unnecessary. These tracts of land were the individual property of each of these minors. Neither minor had any interest in the tract that belonged to the other minor. Their interest not being joint or common, it is absurd to contend that, a court or its agent had authority to hotch-potch these three allotments in one sale and sell them as one tract and for a lump sum without separating and designating the interests of each ward and the particular' tract that was his individual property and advertising each particular tract upon its particular merits and disposing of each upon its special intrinsic value. They were sold as a joint interest, when in fact and in truth their interests were sever *234 al, and a guardianship court or its agent, the guardian, has no authority under our statutes for such procedure, and such a sale is an -absolute disregard of fundamental rights of the respective wards and .their several special interests, and this sale must be held void. It is true that the appraisement filed in this record shows that each separate tract was appraised at $350, and that the lump sum received for the three combined tracts sold was $150 in excess of their combined appraisement. We conclude from this record that this was a sale at private sale, under the order of the court, and which requires an appraisement. But the object of the appraisement is to fix a standard below which the lands cannot be legally sold; the statute fixing the per cent, of the appraisement which the land must bring before it can be a legal sale. There is no way to tell what any particular tract brought, nor what value the purchaser placed upon each particular tract. What each particular tract possessed of intrinsic merit and which would appeal to a purchaser, each ward was entitled to, and each ward was entitled to have his property sold separately and upon the particular merits of his tract of land, and to no more and no less. To divide the proceeds of this sale equally between the three minors is, not to say that he has a just distribution of what his property would bring under a free, fair, and independent sale of its particular interests. To repeat, 'this is such an anomalous and unusual procedure that decisions upon the proposition seem to be very rare. The 8th paragraph of 21 Cyc. 37, reads as follows: . “Subject to the qualifications just noticed that no conflict of property interest shall exist between the guardian and his ward, a guardian may be appointed for more than one ward. Thus, where several wards hold by a common title, one guardian may ■be appointed to act for all.” And under said paragraph the case of Pursley v. Hayes, 22 Iowa, 11, 92 Am. Dec. 350, is cited. We take the following from the body of the last cited ease, from pages 365, 366, of 92 Am. Dec: Next is the objection that the guardian was appointed for the wards jointly, and the bonds are for their security in the same manner. The record discloses that these lands constituted the entire property of these minors. Each ward did not have property in his own right distinct from the others. They all held by a common title as tenants in common. And certainly nothing has 'been more common in our practice than 'to appoint one guardian for all minors thus interested, and no rule of the statute can be found forbidding it. True, the guardian ought to keep his account with each ward separate and distinct. And this is all that is held in this respect in the case of Eoteaux v. Lepage, 6 Iowa, 123, to which counsel so frequently refer.. But a failure on the part of the guardian to comply with his duty in this respect would not invalidate a title held under a sale made by him. And we may be allowed to add that, where property is held as in this instance, economy and a sound discretion would dictate that the trust should be imposed upon one instead of upon several persons. We fail to see any legal or reasonable obpjection to such a practice.” ■In the cited and quoted case they sustain the joint appointment and the sale on the ground that the wards had a joint interest in the property. But by strong inference this case holds that if the wards had held by a several ownership, the court would not have so held. We have examined, also, the case of Eo-teaux vi. Lepage, 6 Iowa, 123, and cited in the quotation given. This last cited case seems to have involved a question where the guardian had merged the accounts of his wards for whom he was joint guardian, holding that the accounts should, have been separated, and holding a joint judgment void. It is possible that the interests in lands of two or more minors might be properly and legally sold and carried through in one proceeding, tout that would, in effect, if properly conducted, toe three separate and distinct proceedings carried on at one and the same time, and might be quite difficult and hazardous to undertake. But such a proceeding as is disclosed by the record in the instant case we are compelled to hold to be a nullity, and the same is shown upon the face of the proceeding. The following is taken from Pettis v. Johnston, 78 Okla. 285, 190 Pac. 689: “A judgment void on its face may be va-. cated upon motion, no matter what length of time has interposed since its rendition; neither is it necessary for the movant to show meritorious defense, nor can the court impose any conditions for vacating it. See long list of cases in annotation to Furman v. Furman (N. Y.) 60 Am. St. Rep. 642-643; Blyth & Fargo Co. v. Swenson, 15 Utah, 345, 49 Pac. 1027; Harris v. Hardeman, 14 How. 337, 14 L. Ed. 444; Condit v. Condit, 66 Okla. 215, 168 Pac. 456.” *235 Sigler & Jackson, for plaintiff in error. Charles A. Coakley and Thomas Norman, for the defendants in error. Joseph C. Stone, Charles A. Moon, Francis Stewart, Kenneth H. Lott, J. R. Cot-tingtoam, S. W. Hayes, George M. Green, E. E. Mclnnis, J. H. Everest, Ed. S. Yaught, Phil D. Brewer, Thos. H. "Wren, and A. G. Cochran, amici curiae. The tenth paragraph of the syllabus in Pettis y. Johnston, supra, reads as follows: “A judgment which is void upon its face, and requires only an inspection of the judgment roll to demonstrate its want of validity, is a ‘dead limb upon the judicial tree, which may be lopped off at any time’; it can hear no fruit to the plaintiff, tout is a constant menace - to the defendant, and may be vacated by the court rendering it ‘at any time on motion of a party or any person affected thereby’, either before or after the expiration of three years from the rendition of such void judgment. Such motion is unhampered toy a limitation of time.” A guardianship proceeding for the sale of a ward’s real estate, void upon its face, or, in other words, the record of the proceeding shows that it was in contravention of the essential terms, conditions, and purposes of the statutes, and so out of consonance with the policy and safeguards of the general law intended for the protection of the fundamental rights of such wards of probate courts, that it binds no one, and all who deal in such lands purported to toe sold under such proceeding do so at their peril and at the risk of having the title declared void upon its face. This cause is, therefore, reversed, with directions to enter judgment for the lands sued for in favor of the plaintiff in error, Riley Jackson, and decree declaring the guardian’s deed void and of no force and effect and canceling the same and declaring the title to be in the plaintiff in error, Riley Jackson, and enjoining the defendant in error, and any one claiming toy or through him, from claiming any right, title, or interest in and to said lands, and that the court proceed to determine the amount of rents and profits due the plaintiff in error, Riley Jackson, as against the defendant, J. S. Carroll, for the wrongful dispossession of said lands. HARRISON. Q. J., and JOHNSON, MC-NEILL, KENNAMER, and NICHOLSON, JJ., concur.