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(- 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 of estoppel might to the plaintiffs, this court will
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-
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
for sale of land
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 purvalidity.
we would not hesi- chasers or encumbrancers." tate to hold that such order would If we find the weight of the tesbe 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
this showing is much discredited by -exceeding authority
tered a decree not the fact that it reasonably appears proof.
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
thé 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
land-authority of court.
(-Okla. 179 Pac. 42.) defendants the Prudential Insur
Prudential Insur- effect admitted that this state of ance Company of America and
facts existed, but Mr. McNeal, the the Deming Investment Company, attorney, attempts to excuse any frankly admits that he understood, further investigation by showing he as a matter of law, the payment of propounded a question to Mr. Cash, the purchase price partly in prop the guardian of the minors, eliciterty, contrary to the statutes, and ing an answer to the effect that the
the order of the Oklahoma City property which was Guardian and
court would render being conveyed to the guardian was land-collusion the sale void. That
a private deal between him and Mr. such a sale would
McDonald. Cash being an interestbe void against the parties to the
ed party and one of the main contransaction can hardly be contro- spirators to defraud his wards, and verted.
the party apparently reaping the To connect the acts of the origi- greater benefit from the transacnal interested parties subsequent to the bidding in of the property at
tion than anyone else, it seems the
answer public sale with their prior acts in
to this question would bringing about the sale causes us to
naturally invite a further inquiry conclude that if a specific intent to
rather than to have the effect to defraud were not formed in the be- satisfy and remove any suspicion or ginning of the negotiation, it is rea
doubt. The uncontradicted testisonably clear that it was intended mony shows that the conveyance of to secure title to the lands of these this Oklahoma City property, under minors by undue influence and for an agreement of all parties, was less than its value, resulting detri- placed with Mr. McNeal, with the mentally to the minors. We there other conveyances, and was not to fore hold that the finding of the be delivered until all the conditions court on this issue is contrary to had been complied with and at the both the preponderance and weight time the other conveyances were to of the evidence.
be delivered. This, in itself, would The only other question necessary suggest that it was so intimately to be determined is, Were the facts linked with the conveyance of the and circumstances such as to give minors' land and formed a part of notice or impute knowledge to the
the same transacdefendants the Prudential Insur- tion, to be delivered knowledge of
Noticeance Company of America, the Dem
attorney. ing Investment Company, and transaction was fully completed, Jennie C. Estus? The weight of au would not only suggest, but would thority unquestionably is that under require, a further investigation to such circumstances, where parties ascertain the true facts. Overall v.
claim to be inno- Taylor, 99 Ala. 12, 11 So. 738; Pom. burden of proof cent bona fide pur- Eq. Jur. & 601. Under the law in chasers for value,
this jurisdiction as construed by the burden rests on
this court such inthem to show themselves to be such.
formation to Clark v. Sayers, 55 W. Va. 512, 47 S. E. 312; Bowman v. Griffith, 35 equivalent to knowledge on all facts
interested party is inquiry. Neb. 361, 53 N. W. 140; Berry v.
which could be ascertained from a Whitney, 40 Mich. 65. The facts and circumstances re
reasonable investigation. Cooper lated as having transpired in the of
v. Flesner, 24 Okla. 57, 23 L.R.A. fice of the attorney for the Pru
(N.S.) 1180, 103 Pac. 1016, 20 Ann. dential Insurance Company of
Cas. 29; Nute v. Nute, 41 N. H. 60; America and the Deming Invest- Schnavely v. Bishop, 8 Kan. App. ment Company were such as to put 301, 55 Pac. 667; Goree v. Goree, 22 the attorney upon inquiry, and such Tex. Civ. App. 470, 54 S. W. 1036; facts need not be restated. It is in Fischer v. Lee, 98 Va. 159, 35 S. E.
-bona fides of purchase,
-intention to an put upon
-examination of title.
441; Manasses v. Dent, 89 Ala. 565, the preponderance of the testimony, 8 So. 108.
but to the weight
Evidence It is contended, however, that thereof, and that in judgment Mr. McNeal was not the attorney rendering a generfor the defendant Jennie C. Estus, al judgment for the defendants, preand she must be held to be an inno- judicial error was committed. "The cent purchaser. To this contention plaintiffs admit that they are not we are unable to give our consent. entitled to retain the $15,000 seWe are of the opinion that the more
cured by the loan on the land in reasonable rule would be that where question, and at the same time se
cure a decree of court canceling the a purchaser, under such circumstances as here, elects to rely upon by this proceeding.
instruments sought to be canceled the investigation and the opinion of
Owing to the conclusion reached, the attorney for the loan company, holding the conveyances void on acwho examined the title for the pur
count of the fraud practised, it is
unnecessary to determine whether
this is a direct or collateral attack chaser, for all in
upon the judgment appealed from. tents and purposes he should be held
Sockey v. Winstock, 43 Okla. 758, to be the attorney for such pur- 144 Pac. 372; Wimberly v. Winchaser, and charged with knowledge stock, 46 Okla! 645, 149 Pac. 238. of all matters, facts, and circum
It is not charged, and neither do stances entering into or connected the facts show, that the defendant with the negotiation tending to af- the Prudential Insurance Company fect the title to such property. actively participated in any of the There was nothing inconsistent in fraud affecting the title to the land Mr. McNeal, as attorney for the in question, but we only hold that it loan companies, to also represent had such knowledge or notice sufthe purchaser and the borrower; ficient to put it upon inquiry, that, and, if she was willing to intrust to if reasonable diligence had been him the duty of passing upon the
used, it could and would have actitle for her, based upon facts which quired full knowledge of the fraud he acquired in passing upon the title
of the other defendants sufficient to for the loan company, he would be prevent it from being an innocent her attorney no less than if he was encumbrancer. The judgment of employed separately and subse
the trial court will be reversed, with quently to the passing on the title
directions to enter a decree cancelfor the loan companies. Gardner v.
ing each and all of the conveyances Early, 72 Iowa, 518, 34 N. W. 311; sought to be canceled by this proGriffin v. Franklin, 224 Mo. 667, 123 ceeding, and restoring the title to S. W. 1092; Baldwin v. Root,
the lands involved unencumbered to Tex. Civ. App. - 38 S. W. 630. the minor plaintiffs, conditioned
But counsel contend she paid no upon the payment by the guardian fee for this service, and therefore of the sum of $15,000 to the court she would not be bound by his clerk, with further directions to the knowledge of the facts affecting the court to ascertain the actual and title. It is not a prerequisite that a necessary cost and expense to the
fee should be paid minors in the prosecution of this Client-necessity before the relation suit, including a reasonable at
of attorney and torney fee, which shall be deducted client may exist. Packard v. Delfel, from the amount of $15,000 so de9 Wash. 562, 38 Pac. 208.
posited, and the balance of said We are constrained to hold that amount shall be paid to the defendthe judgment and findings of the ant the Prudential Insurance Comtrial court are contrary not only to pany of America.
bona fide purchaser--notice,
(- Okla. —, 179 Pac. 12.) It is hereby recommended that
any greater effort to ascertain the such decree be entered.
true condition of affairs than is disPer Curiam:
closed by this record. Adopted in whole.
We note the motion of the pre
vailing parties to modify the opinA petition for rehearing having ion of the learned commissioner by been granted, the following Per striking therefrom the condition Curiam response was handed down
that plaintiff in error shall pay the on March 18, 1919:
clerk of the court the sum of $15,After a careful examination of 000, and substituting therefor a the record upon rehearing, the court condition that plaintiff in error shall is convinced that the opinion pre pay into court such portion of said pared by Mr. Commissioner Linn is
sum as may remain undisposed of. in the main correct, and that, with
As this portion of the decree was the slight modification hereinafter entered in pursuance of admissions pointed out, it should be approved. made by counsel for the movant, We are of the opinion that Mrs.
both in open court and in their Estus was not only bound by the briefs, that such a condition would notice and knowledge acquired by be equitable in case they prevailed, McNeal, but, like McNeal, she came and as we believe it is an equitable
into possession of condition of recovery, we decline to purchaser
facts sufficient to make the modification prayed for. put a prudent per Objection is also made in the pe
son upon inquiry. tition for rehearing to that part of She knew the transaction involved Commissioner Linn's opinion which the transfer of the allotted lands of directs the trial court to award the Indian minors, and that a sale by plaintiff in error a reasonable atthe guardian must be for cash. She torney's fee, to be deducted from also knew that the delivery of the the "$15,000 so deposited.” As the guardian's deed to McDonald was
question whether the plaintiffs in in some way dependent upon the error would be entitled to recover consummation of the deal between attorney fees, in case they prevailed, herself and McDonald, and she has not been passed upon by the knew, or could have known by slight trial court, we will not pass upon it inquiry, that the land she conveyed now, but will leave it open for origto McDonald in exchange for the inal consideration below, if either minors' lands was to be immediate- party desires to raise it. To this exly transferred to Cash, the guardi- tent the opinion is modified. an, either for his own benefit or for For the reasons stated the opinthe benefit of his wards, and that ion of Mr. Commissioner Linn, as the money she borrowed from the hereby supplemented and modified, Prudential Company was to be used is adopted and approved as the in payment of a portion of the pur- opinion of the court. chase price bid for the minors'
All the Justices concur. lands, at the guardian's sale. Indeed the whole transaction between McDonald and his associates, and
NOTE. Cash, which was largely enacted in the presence and hearing of McNeal The general question of the imputaand Mrs. Estus, bore so many of the tion of the knowledge of an attorney familiar earmarks of a conspiracy to his client which is considered in to defraud these Indian minors of the reported case (PYEATT V. ESTUS, their estates, that it seems incred- ante, 1570) is discussed in the note ible to us that neither of them made post, 1592.