Alfrey v. Colbert

104 S.W. 638, 7 Indian Terr. 338, 1907 Indian Terr. LEXIS 40

• Court: Court Of Appeals Of Indian Territory
• Decided: September 26, 1907
• Status: Published

Opinion

Townsend, J.

(after’ stating the facts as above). The appellants have filed 20 assignments of error, as follows:

“(1) The court erred in not dismissing plaintiff's complaint for want of equity.

“(2) The court erred in not holding that the amount of moner*- paid by defendants to plaintiff when the first deed was executed, taken in connection with the amount paid when the second deed was executed, constituted a good consideration for the execution of said second deed.

“(3) The court erred in not sustaining defendants’ exceptions to the fifth finding of the special master, which is as follows: ‘That the preponderance of the testimony goes to show that the plaintiff was born the latter part of March, 1884, and was 20 years old at the time he executed the deed sought to be set aside by this action, and at the time of the filing of the complaint herein.’

“(4) ' The court erred in not sustaining defendants’ exceptions to special master’s seventh finding of fact, which is. as follows: ‘That the price paid by the defendants, $550, for .said premises, is grossly inadequate, is shown by a preponderance of the evidence. G. D. Carl, one of the defendants, and who was to have one-half of the profits, testifies that he had sold the said premises for $2,700, and was stopped from completing said sale by the bringing of this suit, and that this was within two months after the purchase by the defendant R. J. Alfrey from the plaintiff, and that there had been no improvements put on said premises during that time; and the evidence does not show that the premises had materially enhanced in value.’

“(5) The court erred in not sustaining defendants’ exception to the ninth finding of fact of the special master, which is as follows: ‘It is contended by the attorney for the defendants that, in order for the plaintiff to recover, it was necessary for him to make a tender of the amount received by him. The question does not appear in either the complaint or answer, and therefore should not be considered by the court; and, even if this question had been properly pleaded, it is well settled that an infant need not return the consideration, if he has squandered or wasted it. Brewster on Conveyancing, § 321; Craig vs Van Bebber, 100 Mo. 584, 13 S. W. 906, 18 Am. St. Rep. 569.

“(6) The court erred in not' sustaining defendants’ exception to the eleventh finding of fact of the special master, which is as follows: T find that the plaintiff, Perry Colbert, was at the time of the^execution of the deed shown in item 1 of this report, a minor under the age of 21 years, and that by act of Congress of June 30, 1902,' hereinbefore mentioned, and which was not changed, so far as this plaintiff is concerned, by the act of April 21, 1904, hereinbefore mentioned, said deed is absolutely void, and not susceptible of ratification, and of no effect, except to cloud the title of the plaintiff.’

“(7) The court erred in not sustaining defendants’ exception to the recommendations of the special master, which are as follows, to wit: T therefore recommend that the said deed in- controversy herein be declared null and void -and of no effect, and that the defendant R. J. Alfre}? be required to execute a quitclaim deed to the plaintiff, Perry Colbert, reconveying said premises back to said plaintiff, in order to clear plaintiff’s title to said premises, and that a decree be made and entered accordingly.’

“(8) The court erred in not sustaining defendants’ exception to the finding of the master in chancery, in finding that the second deed made by plaintiff to defendants was an attempt to ratify the former deed, which was delivered during the minority of the plaintiff, and was void, which finding is as follows, to wit: T find that this subsequent deed is an attempt made by the parties to this suit to ratify the former deed, which was executed and delivered by the minor during his minority.’

“(9) The court erred in not sustaining defendants’ exception to the conclusion of the master in finding that said second deed was an attempt to ratify the priorfdeed, which was void, which conclusion is as follows, to wit: ‘From the foregoing findings of fact I conclude' that such attempted ratification on the part of the minor is absolutely void, under the act of Congress approved June 30, 1902, which provides, among other things, that “any agreement or conveyance of any kind or character violative of any of the provisions of this paragraph shall be absolutely void and not susceptible of ratification in any manner, and no rule of estoppel shall ever prevent the assertion of its invalidity.” ’

“(10) The court erred in finding for the plaintiff in the case, in view of the fourth finding of the fact of the special master, which is as follows: ‘That the evidence offered herein is very uncertain, indefinite, and unsatisfactory on every material matter; that the age of the plaintiff is the most important question involved herein.1

“(11) The court erred in finding in its decree that the second deed taken by the defendants was a ratification of the first deed, which finding is as follows, to wit: ‘That after the filing of the special master's report herein defendants took from plaintiff a second deed to said property, which deed the court finds was executed after plaintiff became of age, and was intended to be, and was in fact, a ratification of his first deed, given to defendant Alfrey as aforesaid.'

“(12) The court erred fin its decree in finding that the plaintiff was a minor at the time the first deed was executed, and in not finding that at the time the second deed was executed the $550 paid at the time the first deed was executed and $5 paid at the time of the execution of said second deed gave defendants a good title to the land, which said finding of fact is as follows: ‘The court further finds that plaintiff was a minor at the time the first deed was executed, but that he had arrived at his majority at the time the second deed was executed; that at the time the second deed was executed there was no other consideration than the amount paid for the first deed, except $5.'

“(13) The court erred in finding that the plaintiff, at the time of the execution of the deeds, came within that class where property should be placed in the hands of a curator, and in holding that the amount paid plaintiff by defendants was wholly inadequate, which finding is as follows, to wit: ‘The court further finds that the plaintiff, at the time of executing the first and second deeds, was inexperienced; that his education and training was limited; that plaintiff was of weak and feeble mind, and, although not insane, his case comes within the category where his property should be placed within the hands of a curator; that the consideration paid plaintiff by defendants was wholly inadequate.’

“(14) The court erred in rendering its decree in said case, which is as follows: ‘It is therefore ordered, adjudged, and decreed by the court that both the deeds of conveyance above described be, and the same are hereby canceled, set aside, and held for naught, and that the defendants are hereby perpetually enjoined from disposing of any of the land above described, or any part thereof; that the plaintiff, Perry Colbert, refund to the defendants, within one year from the date thereof, all moneys paid to him for and on account of the purchase of said lands, which the court finds to be five hundred fifty-five dollars ($555.00), with interest at the rate of 6 per cent, per annum from date of the payment thereof, for which defendants shall have a lien upon'the lands of the plaintiff for the sums of money, together with the interest aforesaid, by the plaintiff, Perry Colbert the defendant R. J. Alfrey will make, execute, and deliver to plaintiff, Perry Colbert, or his heirs, or assigns, or legal representatives, a quitclaim deed for the above described premises.’

“(15) The court erred in rendering a decree independent of the findings of the master and special master, and ignoring those findings.

“(16) The court erred in not sustaining defendants» exception to the special master’s report allowing in evidence the affidavit of Alec Keys and Will Ross.

“(17) The court erred in finding for the plaintiff upon the evidence introduced, which was uncertain, indefinite, and unsatisfactory upon every material allegation, even according to the fourth finding of the special master, which is as follows: 'That the evidence offered herein is very uncertain, indefinite, and unsatisfactory on every material matter; that the age of the plaintiff is the most important question involved herein.’

“(18) The court erred in not holding that the representations made by him, at the time the first deed was executed, that he was of age, estopped him from denying that he was of age at that time.

“(19) The court erred in not holding that the plaintiff did not come into court with clean hands, as the proof shows that at the time the first deed was made he represented himself to be of age.

“(20) The court erred in not holding that the second deed, executed after plaintiff was of age, without any fraud or undue influence on part of defendants, gave defendants a good title, regardless of the question of age of plaintiff at the time of the execution of the first deed.”

But appellants say: “We confidently submit this cause upon the propositions contained in the recapitulation of said assignments of error, under five different heads, as follows: (1) That the weight of the evidence shows that plaintiff was of age when the first deed was executed, and that the consideration paid him was adequate. (2) That there is no equity in the complaint of plaintiff, because he did not return or offer to return the consideration paid him by defendants, and for this reason the court should have dismissed the complaint. (3) That there was no equity in complaint of plaintiff, because the proof shows that the sale wras made as a consequence of false' representation as to his age made by plaintiff to defendants, and that therefore he did not and could not come into a court of equity with clean hands. (4) That, if the first deed was void at time of its execution on account of plaintiff's minority, he subsequently ratified or affirmed the same after he became of age by executing the second deed. (5) That, if. the first deed could not be ratified or affirmed, the second deed conveyed title as an original conveyance; that the $550 paidwhen first deed was executed, together with the $5 paid when the second deed was executed, made a good and sufficient consideration for the execution of the second deed; that there is no finding of master' or court in the case showing there was fraud or undue influence used to induce plaintiff to execute second deed; and that, if the other points should be resolved against appellants, on this one alone the court should have rendered decree for them.”

Appellants first make a statement of the testimony by the different witnesses, and an argument that from that testimony the conclusion of the special master, Peter Deichman, that Perry Colbert was a minor, was incorrect. In his fourth finding the special master says “that the evidence offered herein is very uncertain, indefinite, and unsatisfactory on every material matter; that the age of the plaintiff is the most important question involved herein.” And. for his fifth finding the special master states the following: “Fifth. That the preponderance of the testimony goes to show that the plaintiff was born the latter part of March, 1884, and was 20 years old at the time he executed the deed sought to be set aside by this action, and at the time of the filing of the complaint herein. The testimony of Gabriel Jamison, who principally raised the plaintiff, what little raising he got, and who seems to be a citizen of the Creek Nation of more intelligence than ordinary, fixes the age of the plaintiff by one of his own children. He also explains why the record in the Hawes Commission shows the plaintiff's ago to have been 18 on June 16, 1931." We have examined the entire testimony and record in this case, and must concur in the statement of the special master that “the evidence offered herein is very uncertain, indefinite, and unsatisfactory on every material matter," and in view of the fact' that the master has found by a preponderance of the testimony that Perry Colbert was a minor at the time of the execution of the deed, in which finding the court concurs, rve do not feel at liberty to interfere with the conclusions arrived at by both the master and the court. It thus having been determined that Perry Colbert was a minor, we find that the act of Congress of June 30, 1902, entitled “An act to ratify and confirm a supplemental agreement with the Creek tribe of Indians and for other purposes,” in the first part of section 16 thereof, reads as follows: “Lands allotted to citizens shall not in any manner or at any time be encumbered, taken or sold to secure or satisfy any debt or obligation, nor be alienated by the allottee or his heirs, before the expiration of five years from the date of the approval of this supplemental agreement, except rvith the approval of the Secretary of the Interior." Under this act an allottee was not permitted to alienate his allotment until the expiration of five years from June 30, 1902. And in the same section it is further provided: “Any agreement or conveyance of any kind or character violative of any of the provisions of this paragraph, shall be absolutely void and not susceptible of ratification in any manner, and no rule of estoppel shall ever prevent the assertion of its invalidity.” This sixteenth section is still in force, except as modified by another act of Congress of April 21, 1904, which provides: “All the restrictions upon the alienation of lands of all allottees of either of the five civilized tribes of Indians, who are not of Indian blood, except minors, are, except as to homesteads, hereby removed..”' It thus appears that if Perry Colbert was a minor, and under the act of April 21, 1904, the restrictions were removed, he, béing a minor, was an exception, and his restrictions ■ were consequently not removed; and under the provisions of section 16, above quoted, his conveyance, made while a minor, was absolutely void.

The defendants filed a supplemental answer on the 15th day of December, 1905, stating that since the filing of their original answer Perry Colbert, on the 21st day of November, 1905, had executed another warranty deed to the defendant Alfrey, and that at the time of the execution of this warranty deed Perry Colbert was over 21 years of age. It appears from the record that this supplemental answer was withdrawn from the special master, Peter Deichman, and referred to the regular master, Thomas A. Sanson, who, on the 4th day of May, 1906, files his report, and states as follows: “I find that since the institution of this suit, and since the said Perry Colbert attained his majority, he attempted to ratify the original deed herein, and executed another deed to the defendant Alfrey for a consideration of $5. I find that this subsequent deed is an attempt made by the parties to this suit to ratify the former deed, which was executed and delivered by the minor during his minority. From the foregoing findings of fact I conclude that such attempted ratification on the part of the minor is absolutely void, under the act of Congress approved June 30, 1902, which provides, amongst other things, that ‘any agreement or conveyance of anjr kind or character violative of any of the provisions of this paragraph, shall be absolutely void and not susceptible of ratification in any manner, and no rule of estoppel shall ever prevent the assertion of its invalidity’ ” — and recommends that the deed set out in the plaintiff’s original bill of complaint herein, and the deed set out in the defendants’- supplemental answer herein, ■ be canceled by the court and held for naught, and that- the defendants be required to convey the - same to plaintiff, Perry Colbert.- But appellants,say: “It will be seen that section 16 is divided into two paragraphs. The last paragraph refers to homesteads exclusively, and, as the land in controversy in this suit is not the homestead of the allottee, that doctrine would not apply in this case. The provision referred to provides ‘that any. agreement or conveyance of any kind or character violative of any of the provisions of this paragraph, shall be absolutely void and riot susceptible of ratification/ etc. It is clear, we think, that the provision does not apply to the first paragraph of section 16.” But the appellee insists that it. applies to all lands allotted to any of the citizens of the Creek Nation, and that the finding of Thomas A. Sanson, master in chancery, in this respect, was correct, and says: “Commonly speaking, there are two paragraphs in this section, but in a legal sense the entire section constitutes a paragraph. Webster defines ‘paragraph' as follows: ‘A distinct part of a discourse or writing; any portion of a section of writing or chapter which relates to' a particular point, whether consisting of one sentence or many sentences.' The same authority defines ‘section’ as follows: ‘In books and writing, a distinct part or portion; the subdivision of a chapter; the division of a law or other writing or instrument. In laws a section is sometimes called a paragraph or article.’ ” And he further insists that all conveyances in violation of said section should be void and not susceptible of ratification, and that no rule of estoppel should ever prevent the assertion of its invalidity, and that the restricted and technical construction placed upon it by appellants is absurd; for why should Congress provide -against the ratification of void contracts and conveyances of homesteads, consisting of 40 acres of land, and permit the ratification of void contracts and conveyances of 120 acres of surplus land? The clause. “Any agreement or conveyance of any kind or character violative of any of the provisions of this paragraph shall be absolutely void and not susceptible of ratification in any manner, and no rule of estoppel shall ever prevent the assertion of its invalidity,” is a separate and independent clause in said section 16, and in our judgment it applies to the attempted ratification of any of the deeds prohibited in said section. ' :

It is the contention of the appellants that Perry Colbert, the appellee, sold his land by reason of a false representation to appellants as to his age, and insists that he who comes into a Court of Equity must come with clean hands, and states that in Pomeroy’s Equity (volume 2, § 945) it is said: “The incapacity of infants to enter into binding contracts is the same in equity as in law; but such contracts are generally voidable only, and may therefore be ratified after the infant attains his majority. Fraud, however, will prevent the disability of infancy from being made available in equity. If an infant procures an agreement to be made through false and fraudulent representations that he is of age, a Court of Equity will enforce his liability as though he were adult, and may cancel a conveyance or executed contract obtained by fraud.” The special master in his report says: “It is contended by the attorney for the defendants (appellants) that in order for the plaintiff to recover it was necessary for him to make a tender of the amount received by him. This question does not appear in either the complaint or answer, and therefore should not be considered by the court.” The special master further finds that the appellee was very ignorant and inexperienced in all business matters, and that the price paid by the defendants, $550, for said premises, is grossly inadequate is shown by the preponderance of the evidence. G. D. Carl, one of the defendants, who was to have one-half of the profits, testifies that he had sold the premises for $2,700, and was stopped from completing said sale by the bringing of this suit, and that this was within two months of the purchase by the defendant Alfrey from the plaintiff, and that there had been no improvements put on the premises during that time, and the evidence does not show that the premises had materially enhanced in value; and he further says that fraud has not been conclusively proved, but that there is some very strong evidence to support it. Pomeroy’s Equity, § 927, states: “Although the actual cases in which a contract or conveyance has been canceled on account of gross inadequacy merely, without other inequitable incidents, are very few, yet the doctrine is settled, by a consensus of decisions and dicta, that even in the absence of all other circumstances, when the inaclequacjr of price is so gross that it shocks the conscience and furnishes satisfactory and decisive evidence of fraud, it will be a sufficient ground for canceling a conveyance or contract, whether executed or execu-tory. Even then fraud, and not inadequacy of price, is the true and only cause for the interposition of equity and the granting of relief.” And section 928 is as follows: “* * * * When the accompanying incidents are inequitable and show bad faith, such as concealments, misrepresentations, undue advanfc age, oppression on the part of the one who obtains the benefit, or ignorance, weakness of mind, sickness, old age, incapacity, pecuniary necessities, and the like, on the part of the other, these circumstances, combined with inadequacy of price, may easily induce a court to grant relief, defensive or affirmative. It would not be correct to say that such facts constitute an absolute and necessary ground for equitable interposition. They operate to throw the heavy burden of proof upon the party seeking to enforce the transaction. or claiming the benefits of it, to show that the other acted voluntarily, knowingly, intentionally, and deliberately, with full knowledge of the nature and effects of his acts, and that his consent was not obtained by any oppression, undue influence, or undue advantage taken of his condition, situation, or necessities. If the party upon whom the burden rested should succeed in tlius showing the perfect good faith of the transaction, it would be sustained; if he should fail, equity would grant such relief, affirmative or defensive, as might be appropriate.” And in section 947: “By the same analogy, where a person is illiterate or ignorant of the nature and extent of his own rights, or ignorant of the nature of the transaction in which he is engaging, and acts without professional or other advice, and advantage is taken of his condition to obtain a conveyance or contract upon an inadequate consideration or otherwise unfair, equity will relieve by setting it aside or defeating its enforcement. The relief is granted on the ground that there was not an intelligent and free consent.”

It is contended by the appellants that the appellee misrepresented his age, and perpetrated a fraud in inducing them to pay $550 for the land in controversy. On the- other hand, the appellee contends that the money paid to him while a minor has been wasted and squandered, and that consequently he should not be compelled to return the same. The court below found that plaintiff at the time 'of executing the first and second deeds was inexperienced; that his education and training was limited; that plaintiff was of weak and feeble mind, and, although not insane, his case comes within the category where his property should be placed in the hands of a curator; that the consideration paid by defendants was wholly inadequate. But, in view of the misrepresentations made by the appellee as to his age, we think the court below very properly ordered that the appellee should refund to the defendants, within one year from the date thereof, all moneys paid to him for and on account of the purchase of said lands, which the court finds to be $555, with interest at the rate of 6 per cent, per annum.

The last contention of appellant is: “That, if the first deed could not be ratified or affirmed, the second deed conveyed title as an original conveyance; that the $550 paid when first deed was executed, together with the $5 paid when the second deed was executed, made a good and sufficient consideration for the execution of the second deed.” But if the $550 was the consideration of the first deed, which the mast'er and court found to be void, then how can that be a consideration in the second deed, except it be to ratify the void deed? The only consideration moving between the parties at the time of the execution of the second deed was $5, and the including of the $550 in the consideration of the second deed makes conclusive the fact that the second deed was an attempt to ratify the first deed, which had been declared to be void.

In our judgment, the court below, in its decree, arrived at a just and equitable determination of the facts of this case, and his judgment is therefore affirmed.

Gill, C. J., and Clayton'and Lawrence. JL, concur.