Critchlow v. Bacon ( 1930 )

The judgment of the trial court canceled a conveyance to Marcum executed by Dan Bacon, an aged illiterate full-blood Choctaw Indian, of his interest in 1,400 acres of land upon which were nine producing oil wells, based upon a recited consideration of $1,000. A part of the land consisted of the estate of Ellen Bacon, deceased daughter of grantor. It appears that grantee, some years prior to the instant deed, had acquired an oil and gas lease upon these lands, and that he thereafter, through a purported guardianship sale, acquired a royalty deed to Ellen Bacon's land. The guardian recorded a conveyance of one-fourth interest in this royalty to himself. The proceedings of that guardianship sale, in addition to at least gross irregularities, recited as a consideration a barter prohibited by law, section 1480, C. O. S. 1921, and denounced by uniform decision. McCoy v. Mayo, 73 Okla. 17, 174 P. 491; Morris v. Sweeney, 53 Okla. 163, 155 P. 537; Am. Inv. Co., v. Brewer, 74 Okla. 271. 181 P. 294; Perkins v. Middleton,66 Okla. 1, 166 P. 1104; Pyeatt v. Estes, 72 Okla. 160,179 P. 42; Berry v. Tollison, 68 Okla. 159, 172 P. 630; Brooks v. Tucker, 83 Okla. 255, 201 P. 643; Vose v. Penny 78 Okla. 238,190 P. 97; Bridges v. Rea, 64 Okla. 115, 166 P. 416; Allison v. Crummey, 64 Okla. 20, 166 P. 691; Atkinson v. King, 93 Okla. 37, 219 P. 914; Scott v. Gypsy Oil Co.,112 Okla. 13, 239 P. 889. We quote:

McCoy v. Mayo, supra: "The sale of a minor's real estate, under an order of the county court having jurisdiction of such estate, in consideration of part cash and part by the conveyance of property, is absolutely without jurisdiction of the county court, and such sale is void, notwithstanding the procedure of such sale is otherwise in strict conformity with the probate laws of this state."

Perkins v. Middleton, supra: "A sale of the ward's real estate can only be made for money, and a conveyance thereof in exchange for other land is unauthorized."

In Berry v. Tollison, supra, it was held that an exchange of minor's property instead of a sale for money "constitutes fraud upon the estate of the ward, and the sale may be set aside in an action against the purchaser, or any person acquiring rights in said lands with knowledge or chargeable with notice of such fraud."

In Allison v. Crummey, supra, it was held:

"A guardian has no authority to sell his ward's lands for anything but cash, and in case he does, he undoubtedly perpetrates a fraud upon the estate of his ward."

In Scott v. Gypsy Oil Co., it was held that the sale must be "in the manner and form provided by law". The law requires that a guardianship sale be for cash. Herein there is no innocent purchaser for value. Herein the record affirmatively discloses the trade.

As to the final transaction wherein Marcum secured the deed from Dan Bacon to his interest in the 1,400 acres of land, we ought to view the position occupied by the parties to the transaction. Marcum, the purchaser, was a lessee of an oil and gas mining lease to land involved in the final deed. Consequently he occupied a position of trust and confidence. It was his duty to account for production from the land. Dan Bacon, the grantor, was in the position of beneficiary of Marcum's accounting.

Pomeroy lays down the rule (sec. 848) that:

"Where an ignorance or misapprehension of the law, even without any positive. Incorrect or misleading words or incidental acts occur in a transaction concerning the trust between two parties holding close relations of trust and confidence injuriously affecting the one who reposes the confidence, equity will, in general, relieve the one who has thus been injured."

But Marcum, while occupying such position of trust and confidence, affirmatively represented, as to Dan Bacon's interest in the mineral rights so bartered away in violation of express statute and decision, "It isn't worth a dime." Whether Marcum's error in value be one of fact or one as to law, as to Dan Bacon's existing right and interest in the mineral rights, equitable relief ought to prevail in behalf of Dan Bacon, the illiterate, the uninformed. Moreover. I do not believe, under the record evidence, that Marcum's act constituted an error. The judgment below stamped it as fraud — grossest overreaching. Not only was Marcum a lessee of Dan Bacon's interest in the land, but, in addition, he was Dan Bacon's co-tenant. He had purchased a half interest in the allotment of Silly Frazier, which by devolution had gone to Eli and to Ellen in equal shares. This fact emphasized the confidential relation existing between Marcum and Dan Bacon; that relation demanded a full disclosure on the part of Marcum and the utmost in fair dealing — the burden of evidence as to value was upon him, the purchaser, not upon Bacon, as the majority opinion holds. Hoyt v. Lightbody, 98 Minn. 189, 108 N.W. 843, 116 A. S. R. 358.

Brink v. Canfield, 78 Okla. 189, 187 P. 223, concerned a full-blood Indian's deed in the procurement of which the Indian was deceived as to his rights as an heir as here, and it was held "the court will unhesitatingly grant the heir of the wronged party relief against those chargeable with such unconscionable practices."

A conspiracy to defraud was relied upon by the plaintiff herein, the alleged purpose being to fraudulently secure the royalty interest in Ellen Bacon's lands. The parties were said to be Marcum and the guardian of Ellen's estate. I think the conspiracy was proven, for the grossest fraud was shown by the record of the guardianship sale of the royalty to Ellen Bacon's land. Even the guardian, who, by law, existed for the purpose of protecting the estate for the ward, recorded a deed within one year after his guardianship sale, whereby he himself held record title to property theretofore sold for his ward. The record shows that the guardian testified he "had it sold" prior to the guardianship sale.

I think the fraud proven followed Marcum throughout his acts in acquiring the interest of Dan Bacon to the 1,400 acres of land for the paltry sum of $1,000.

I dissent to the majority opinion.

Note. — See under (1) 23 R. C. L. p. 368; 3 R. C. L. Supp. p. 1325; 5 R. C. L. Supp. p. 1241; 6 R. C. L. Supp. p. 1373. (6) 2 R. C. L. p. 204; R. C. L. Perm. Supp. p. 377. See "Appeal and Error," 4 C. J. § 2857, p. 887, n. 62. "Cancellation of Instruments," 9 C. J. § 149, p. 1234, n. 93; p. 1235, n. 94; § 151, p. 1235, n. 97, 98; § 152, p. 1236, n. 2. "Deeds," 18 C. J. § 554, p. 448, n. 47. "Evidence," 22 C. J. § 53, p. 111, n. 52. "Indians," 31 C. J. § 79, p. 514, n. 96. "Reformation of Instruments," 34 Cyc. p. 984, n. 34.