Bailey v. King

In their petition for rehearing, counsel for plaintiff in error contend that, even though the restrictions upon the sale and leasing of the lands involved were entirely removed by the acts of Congress, the lease in controversy was void under the laws of this state, and in support thereof they cite the case of Duff et al. v. Keaton et al., 33 Okla. 92, 124 P. 291, 42 L. R. A. (N. S.) 472, wherein Mr. Justice Williams says:

"* * * The rule existing at common law, by which the guardian was authorized to lease the lands of the ward for a number of years without the approval of the probate court, has been changed by section 5513, supra, and that by said section said leases in order to be valid must be first approved by the probate court; it being specially provided by said section that the probate court may make such other orders, and give such directions as are needful for the management, investment, and disposition of the estate and effects, as circumstances require."

Without further comment upon that case, it is sufficient to say here that in the trial of this case below counsel for plaintiff, who is also plaintiff in error here, stood squarely upon the treaties and acts of Congress, contending that the restrictions upon such leases had not been removed, but were still maintained in full force. In their printed brief filed herein, and upon which we fully relied, they said at page 5:

"The laws in force in the State of Oklahoma at the time of the execution of the leases involved in this cause do not provide for the approval of leases made by the guardians of minors, but we contend that if the acts of Congress relating to leasing Indian minor's lands are in conflict with the state statutes, that the act of. Congress controls, and this court has repeatedly so held."

And at page 7 of their brief they say:

"The acts of Congress relating to leases on lands of Indian minors were in full force and effect at the time of the execution of the leases involved in this case"

— and further insist that the defendants' lease is void because of said restrictions. They took their stand and made their fight solely and entirely upon the restrictions contained in the acts of Congress, while counsel for defendants contended that these acts had been repealed and all restrictions removed by the act of May 27, 1908.

It being conceded by counsel for plaintiff in error that "the state law did not provide for nor require the approval of such leases by the county court, nor the recording thereof to make them valid," we gave that theory of the case no further consideration. It will be borne in mind that the rights of the minor Indian are not involved in this case. This is simply a controversy between two lessees — the plaintiff having full knowledge of the defendants' lease, and of their actual possession of the premises, at the time he (plaintiff) procured his lease. Under the circumstances of this case, taking into consideration the position taken, and admissions made by counsel for plaintiff in error as to the state laws, for which they now contend, involving an entire change of position, we do not believe they should now upon rehearing be permitted to gain-say their positive admissions, and assume a new and different theory.

Rule 9 of this court (38 Okla. ix, 137 P. ix), among other requirements for petitions for rehearing, provides;

"Such petition shall state briefly the grounds upon which counsel relies for a rehearing and show either that some question decisive of the case and duly submitted by the counsel has been overlooked by the court, or that the decision is in conflict with an expressed statute or controlling decision to which the attention of the court was not called. * * *"

In the case of Graham v. Heinrich et al., 13 Okla. 107,74 P. 328, the court says:

"After a party has brought an action in the district court alleging a legal and binding contract, and seeking to be relieved from the stipulations thereof upon his part, an answer and cross-petition filed by the defendants praying that the contract be enforced, and trial is had, and specific performance decreed, it is too late after appeal to the Supreme Court for plaintiff, for the first time, to elect to declare the contract invalid, as coming within the statute of frauds."

In Morrison et al. v. Atkinson et al., 16 Okla. 571,85 P. 472, 8 Ann. Cas. 486, it is said:

" 'Where parties consent to try their cause below on a particular theory of what the law of the case is, though it be erroneous, they cannot complain if the result be correct according to that theory.' Davis v. Jacoby, 54 Minn. 144, 55 N.W. 908."

And in the same case, at page 575 of 16 Okla., at page 473 of 85 Pac. (8 Ann. Cas. 486), quoting from Phil. R. Co. v. Howard, 13 How. 307, 14 L. Ed. 157, it is said:

"We are clearly of opinion that the defendant cannot be heard to say that what was asserted on a former trial was false, even if the assertion was made by mistake. If it was a mistake, of which there is no evidence, it was one made by defendant, of which he took the benefit, and the plaintiff the loss, and it is too late to correct it."

And again, at page 576 of 16 Okla., at page 473 of 85 Pac. (8 Ann. Cas. 486), quoting from Railroad Co. v. McCarthy,96 U.S. 258, 24 L. Ed. 693, they say:

"Where a party gives a reason for his conduct and decision touching anything involved in a controversy, he cannot, after litigation has begun, change his ground, and put his conduct upon another and a different consideration. He is not permitted thus to amend his hold."

This same rule is laid down and fully approved in the following cases: Duffy v. Scientific American Comp. Dept.,30 Okla. 742, 120 P. 1088; Harris v. First Nat. Bank,21 Okla. 189, 95 P. 781; St. L. S. F. R. Co. v. Key, 28 Okla. 769,115 P. 875; Hamilton v. Brown, 31 Okla. 213, 120 P. 950.

In Wattenbarger v. Hall, 26 Okla. 815, 110 P. 911, the rule laid down in the syllabus is as follows:

"The right of the plaintiff in error to recover was properly submitted, on his theory, to the jury; and, the jury having found against him thereon, he will not be permitted to change front in this court, amend his hold, and claim his right to recover on some other theory."

Upon a careful consideration of this case, we are of the opinion that a rehearing should be denied.

By the Court: It is so ordered.