Paulter v. Manuel , 25 Okla. 59 ( 1909 )

The judgment in this action was rendered in the United States Court for the Western District of the Indian Territory at Muskogee on the 29th day of June, 1907. On the 19th day of September, 1907, appellant presented to the Honorable William R. Lawrence, Judge of the United States Court of Appeals for the Indian Territory, his petition for appeal, which was allowed, and the transcript was filed in the United States Court of Appeals for the Indian Territory on October 21, 1907, where the cause was pending on the admission of the state

On the 17th day of October, 1907, appellee Robert J. Manuel, as guardian of Lizzie Manuel, presented to the said William R. Lawrence his petition for a cross-appeal, which was allowed, and the transcript was filed in this court on March 14, 1908. No citation was issued by Judge Lawrence at the time he allowed the cross-appeal, and none has been issued by this court, or any member thereof. By the cross-appeal, appellee in the main appeal seeks to have reversed that portion of the judgment of the trial court which decrees the Oklahoma Land Company to be the owner of the land in controversy. The Oklahoma Land Company was not a party to the appeal taken by appellant, Paulter, and entered no general appearance in this court to the cross-appeal before the end of the next ensuing term of this court after the cross-appeal was taken. Counsel for the Oklahoma Land Company in their brief have raised the question of this court's jurisdiction to determine any matters raised by the cross-appeal. It has several times been held by this court that the act of Congress of March 3, 1905 (Act March 9, 1905, c. 1479, par. 12, 33 Stat. 1081 [U.S. Comp. St. Supp. 1909, p. 219]), put in force in the Indian Territory the federal appellate procedure, and that such procedure governs all appeals taken from judgments rendered in the United States courts of the Indian Territory before the admission of the state. Kelley v. McCombs et al., 23 Okla. 867, 102 P. 186;Parks v. City of Ada, 24 Okla. 168, 103 P. 607. Cross-appeals must be prosecuted like other appeals. The S. S. Osborne,105 U.S. 447, 26 L. Ed. 1065; Hilton v. Dickinson, 108 U.S. 165,, 2 Sup. Ct. 424, 27 L. Ed. 688; Farrar v. Churchill, 135 U.S. 609, 10 Sup. Ct. 771, 34 L. Ed. 246. Citation is one of the necessary elements of an appeal taken after the term, and if it be not issued and served before the end of the next ensuing term of the appellate court, and be not waived, the appeal becomes inoperative. Parks v. City of Ada, supra; Jacobs v. George,150 U.S. 415, 14 Sup. Ct. 159, 37 L. Ed. 1127. On the 28th day of March, 1908, appellee, Robert Manuel, as guardian, had issued by the clerk of this court a summons in error, notifying appellant, J. F. Paulter, and the Oklahoma Land Company of his cross-appeal, and this summons in error was served, but appellee could not complete his cross-appeal in this manner. While no specific form of citation is required, and it is probable that the notice contained in the summons in error would be sufficient if the clerk of the court had had authority to issue citation, yet the clerk is without such authority.Parks v. City of Ada, supra; Freeman v. Clay et al., 48 Fed. 849, 1 Cow. C. A. 115; United States v. Hodge, 3 How. 534, 11 L. Ed. 714. The cross-appeal, therefore, after the expiration of the ensuing term of this court after the allowance thereof, became inoperative, and we can review nothing attempted to be presented by it.

Counsel for appellant, in the main appeal, urge in their brief several assignments of error, but all the different assignments urged by them in effect present but one contention, which is that, at the time Lizzie Manuel executed the deed of conveyance to appellant, she was a person of sound mind, with sufficient mental capacity to make the conveyance; that she received a fair consideration for the land conveyed, and no fraud was perpetrated in the transaction. This contention presents only issues of fact. Many witnesses for both parties testified before the master upon these questions, and the master, after heating all the evidence, found upon all these issues against appellant, and the trial court approved and confirmed his findings, and entered judgment accordingly. The master found:

"That Lizzie Manuel was, at the time of signing the deeds to J. F. Paulter, and has been continuously from her childhood, of a very weak mind, and very ignorant. Her mind is so weak, and she is so ignorant, that she has no intelligent conception of the quantity nor quality of the land she was undertaking to convey, nor did she have any intelligent idea of the price offered and paid to her. She does not understand numbers, nor can she count money. When she made her mark to the deeds, and had the same explained to her by members of the Buck family who went with her and a notary public, she did not know, nor had she mental capacity to comprehend, that she was conveying 120 acres of land, and was to receive therefor $250. She understood that she was only selling land to get money; but what or how much land was conveyed, or how much money she was receiving or to receive, was beyond her comprehension. She was then, and still is, so ignorant and weak-minded that she does not know whether $15 is more or less than $30, or whether $10 is greater or less than $100. That her weakness of mind was sufficiently apparent, from her conduct and conversation, to attract the attention of the purchaser, Paulter, and put him upon notice and inquiry concerning her mental capacity to contract. * * * The sum of $250 paid by the defendant Paulter for said land was grossly inadequate."

We have carefully examined all the evidence; and, while there is some conflict, we believe that the master was fully warranted in the finding above set out. Under the rule of the jurisdiction in which this case arose and was tried, the legal presumption, where the evidence is conflicting, is that the finding of fact of the master in chancery is correct, and his report will not be set aside, unless it appears with reasonable clearness that he has fallen into a mistake of fact.Blakemore v. Johnson, 24 Okla. 544, 103 P. 554; GuaranteeGold Bond Loan Say. Co. v. Edwards, 164 Fed. 809, 90 Cow. C. A. 585.

The master does not find that Lizzie Manuel is insane, or that she is without mental capacity sufficient to transact any business whatever, but he finds that her mind is so weak, and she is so ignorant, and her intelligence is so inferior, that she was unable to comprehend or understand the nature or character of the transaction by which she conveyed her land to appellant. This woman from childhood has had a very weak mind, bordering on idiocy. She, however, is not entirely without mental capacity, for she has sufficient intelligence to know how to work, is a good cook, and discharges the other duties of a servant satisfactorily to those employing her. She is able to transact minor and unimportant business. such as buying clothing, small quantities of groceries, and knows the value thereof. She understood what it was to have a bank account, and that money could be drawn by issuing checks thereon. She is unable to read and write, but at several times after the sale of her land she requested others to draw checks for her upon the bank where she had her account for small amounts, but the evidence is convincing that she was incapable of understanding the nature and character of the transaction between her and appellant. She did not then know, and does not now know how many acres of land she had conveyed, or its value, and is and was at the time she executed the deed mentally incapable of understanding same. She cannot count 10, and does not know which is greater, $10 or $100, and has no idea of values whatever above small amounts, such as the price of a dress, pair of shoes, or small quantities of groceries. After the restrictions upon her power to sell her allotment were removed, she at once became anxious to sell the same. Witnesses testify, and it is not controverted or denied, that she gave to appellant as her reason for wanting to sell that she wanted to sell the land before somebody else sold it, and she would not get the money. The reason assigned by her to appellant for wanting to sell the land was sufficient to put him on notice of her inability to understand the nature and character of her rights and interest in and to the land and her power to control the same. At the time of the sale she was living with a family by the name of Buck. Several members of this family accompanied her to town on the day the deed was executed, and were present at the time of the execution of the deed. One member of this family received $100 of the money purported to have been paid by appellant to Lizzie Manuel for the land. This incident, together with the conduct of the members of the Buck family, show them to have been interested in the sale. Mrs. Buck, who received the money, executed her note for the amount, but the same, although due, has never been paid. All the members of the Buck family who were present at the execution of the deed appeared as witnesses for appellant at the trial. But their evidence as to what took place at the time of the execution is at variance with the evidence of the notary who took the acknowledgment and with the evidence of each other. The notary stated that he made no explanation of the deed at the time of the execution thereof, except that he read the same; that Lizzie Manuel said she understood it, but he did not know whether she did or not. Some members of the Buck family testified that a full explanation of the deed and its contents was made to her. Others testified that nothing was done except the reading of the deed by the notary; and the members of the family who testify that the deed was explained to her could not remember what parts of the deed were explained, or what was said; and, although this transaction was consummated by appellant in person, and he is in full possession of all the details surrounding the same, he did not testify. The consideration paid by him was grossly inadequate.

It was not necessary, in order to entitle appellee to relief, to show that she was, at the time of the execution of the deed, insane, or so mentally weak that she was entirely disqualified to transact any business. It was sufficient to show that her mental weaknesses and infirmities were such that she was at that time incapable of understanding the nature and magnitude of the transaction, and that there was gross inadequacy of consideration for the conveyance. From these circumstances imposition or undue influence will be inferred, and they alone are sufficient to secure the aid of a court of equity. Allore v. Jewell, 94 U.S. 506, 24 L. Ed. 260. In the case of Harding et al. v. Wheaton, 2 Mason, 378, Fed. Cas. No. 6,051, Mr. Justice Story said:

"Extreme weakness will raise an almost necessary presumption of imposition, even when it stops short of legal incapacity; and though a contract in the ordinary course of things, reasonably made, with such a person might be admitted to stand, yet if it should appear to be of such a nature as that such a person could not be capable of measuring its extent or importance, its reasonableness, or its value fully and fairly, it cannot be that the law is so much at variance with common sense as to uphold it."

Mr. Chief Justice Marshall, discussing this same case on appeal to the Supreme Court of the United States, inHarding v. Handy, 11 Wheat, 103, 6 L. Ed. 429, said:

"If these deeds were obtained by the exercise of undue influence over a man whose mind had ceased to be the safe guide of his actions, it is against conscience for him who has obtained them to derive any advantage from them. It is the peculiar province of a court of conscience to set them aside. That a court of equity will interpose in such a case is among its best-settled principles."

Mr. Justice Field, in Allore v. Jewell, supra, after quoting the language of Mr. Justice Story and Mr. Chief Justice Marshall, said:

"The same doctrine is announced in adjudged cases, almost without number; and it may be stated as settled law that, whenever there is great weakness of mind in a person executing a conveyance of land, arising from age, sickness, or any other cause, though not amounting to absolute disqualification, and the consideration given for the property is grossly inadequate a court of equity will, upon proper and seasonable application of the injured party, or his representatives or heirs, interfere and set the conveyance aside."

The doctrine of this case finds recognition and support in cases from the highest courts of almost every state in the Union. Jones v. McGruder, 87 Va. 360, 12 S.E. 792; Fishburne v.Ferguson's Heirs, 84 Va. 87, 4 S.E. 575; Turner v. Utah TitleInsurance Trust Co., 10 Utah, 61, 37 P. 91; Taylor v.Atwood, 47 Conn. 498; Ashmead et at. v. Reynolds et al., 134 Ind. 139, 38 N.E. 763, 39 Am. St. Rep. 238; Ikerd et al. v. Beavers,106 Ind. 483, 7 N.E. 326; Wilkie, Gdn.v. Sassen, 123 Iowa, 421, 99 N.W. 124; Clark v. Lopez, 75 Miss. 932, 23 So. 648, 957;Richards v. Donner, 72 Cal. 207, 13 P. 584; Walling v. Thomaset al., 133 Ala. 426, 31 So. 982.

The master, under the order of court, reported both findings of fact and conclusions of law. He found that the Oklahoma Land Company, at the time it purchased the land in controversy from appellant, had no knowledge or notice of the mental condition of Lizzie Manuel when she conveyed the land to appellant, or of other circumstances surrounding the transaction; that said company was an innocent purchaser for value and has good title to the land in controversy. This finding and conclusion of the master was confirmed by the trial court, and has not been assigned or urged in this case as error; nor has any contention been made by appellant that the trial court was without authority in this proceeding to award appellee judgment for the damages sustained by her by reason of the transaction and the act of appellant conveying the land to the Oklahoma Land Company. His sole contention is that the evidence does not support the master's findings as to the condition of appellee's mind and the consideration paid for the land. Under the application of the rule that appellant in his brief shall specify separately the errors complained of, and shall argue and support with authorities each point relied upon, we forego a consideration of this action of the court, and have made no extensive examination of the authorities with reference thereto, but the judgment of the court in this respect finds support in Cole v. Getzinger et al., 96 Wis. 559, 71 N.W. 75.

Finding no error in the assignment urged and relied upon in this court, the judgment of the trial court is affirmed.

All the Justices concur.