(185 P.) gation, which was adverse to the grantor, constitute a fraud upon the estate of the ward, brought suit upon the covenant of warranty and the sale may be set aside in an action by in said conveyance. The grantor pleaded the the ward against such purchaser, or any other statute of limitations. Held, that the grantor person who acquires rights in said lands with is estopped from maintaining such defense." notice of such secret fraud. In the above case, Graves, J., in the body 2. ELECTION OF REMEDIES 3(2)-SUIT ON of the opinion used the following language: GUARDIAN'S BOND AS PRECLUDING OTHER Appeal from District Court, Garvin County; F. B. Swank, Judge. "After Pratt has so waited and the company Under the facts of this case, as stated in the after full opportunity to test its claim has fail-body of this opinion, plaintiffs are not estopped ed, it would be unconscionable for it to assert to cancel defendant's mortgage because of the the very delay, which it requested for the pur- prior institution by them of an action against pose of avoiding payment to Pratt, of the money paid by him for which he had received noth- the sureties of their former guardian for the ing. The ordinary rules of justice and fair amounts found due them and their brother and dealing rebel at the suggestion. The facts fur- sister by the county court on said guardian's final account. nish abundant reason for the application of the rule of estoppel to such conduct. We think this is a case where this rule should be applied. Cases may be found which are apparently opposed to this view; in fact, considerable conflict exists among the decisions concerning the general subject of changing the statute of limitations by agreement, waiver, and estoppel. Much of this confusion arises from the difference in statutes, and in the application thereof to particular cases. Very few can be found which, when closely examined, will be found to differ materially, in principle, from the view we have taken; it would be useless, therefore, to attempt a review thereof." [4,5] From an examination of the entire record we are convinced that no reversible error was committed by the trial court, that the evidence of the plaintiff tended reasonably to support the judgment rendered in his behalf, and that the defendant was not otherwise deprived of any constitutional or statutory right. Action by Phelix N. Choate, a minor, by R. M. Love, his next friend and legal guardian, against E. N. Nesbitt, F. O. Ringer, and the Alliance Trust Company, Limited, of Dundee, Scotland, consolidated with action by Leslie R. Choate, a minor, by his next friend and guardian, etc., against the Alliance Trust Company. Judgment for plaintiffs, and defendant Alliance Trust Company appeals, making its codefendants, Nesbitt and Ringer, defendants in error in the Supreme Court. Judgment affirmed. Valley, for plaintiff in error. Wayne H. Lasater, of Pauls Valley, for defendants in error Choate. RAINEY, J. Phelix N. Choate, a minor, by Judgment was so modified as to allow interest on $1,870.32 from March 16, 1915, in-R. M. Love, his next friend and legal guardstead of from October 21, 1910, as specified in the judgment of the trial court, and with such modification the judgment of the trial court is affirmed. ian, instituted an action in the district court of Garvin county against E. N. Nesbitt, R. O. Ringer, and the Alliance Trust Company, Limited, of Dundee, Scotland, a corporation, for the purpose of canceling as clouds on the KANE, RAINEY, HARRISON, and Mc- title to plaintiff's allotment of land a certain NEILL, JJ., concur. OWEN, C. J., dissents. deed executed by one A. M. Davis to defendants Nesbitt and Ringer and a mortgage ex SHARP and HIGGINS, JJ., not participat- ecuted by the same party to the Alliance ing. (76 Okl. 269) ALLIANCE TRUST CO., LIMITED, OF Trust Company. About the same time Leslie R. Choate, a minor brother of Phelix N. Choate, also instituted an action against the Alliance Trust Company to cancel the same mortgage that covered the allotment of land of the said Leslie R. Choate. These actions involved practically the same issues and were consolidated before the trial, which resulted (Supreme Court of Oklahoma. Oct. 14, 1919.) in a judgment for the plaintiffs. (Syllabus by the Court.) 1. GUARDIAN AND WARD 105(1)—VACATION OF SALE FOR GUARDIAN'S SECRET FRAUD. Where a guardian sells the lands of his ward upon a secret understanding that the purchaser shall not pay for the same and the sale is confirmed by the court and deed executed and delivered to the purchaser, such facts Most of the material facts are incorporated in the trial court's findings of fact, which are as follows: "(1) That the plaintiffs, Phelix N. Choate and Leslie R. Choate, are members of the Choctaw Tribe of Indians by blood, and as such were allotted the lands described in their petition; that said lands were duly patented to them; and that said plaintiffs are minors. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "(2) That J. H. Choate, the father of said plaintiffs, was their legal guardian at the time the mortgage was executed to the Alliance Trust Company, Limited, and when the deed was made to E. N. Nesbitt and F. O. Ringer, and was such guardian until July 11, 1913; that on the 1st day of March, 1910, said J. H. Choate, as guardian of said plaintiffs, filed his petition in the county court of Garvin county, Okl., for authority to sell the lands of said minors, and on July 21, 1910, said J. H. Choate procured from said county court an order to sell said lands; and that on October 3, 1910, said J. H. Choate procured from said county court an order confirming said sale, and on October 12, 1910, said J. H. Choate, as guardian, executed a deed to said land to one A. M. Davis. "(3) That on November 1, 1910, said A. M. Davis and his wife, Lorena Davis, executed a mortgage on said lands to the defendant, the Alliance Trust Company, Limited, to secure the payment of a note in the sum of $1,600; that on July 20, 1911, said A. M. Davis and his wife, Lorena Davis, executed a deed on said lands to defendants E. N. Nesbitt and F. O. Ringer. "(6) That said A. M. Davis and J. H. Choate, as guardian of said plaintiffs, fraudulently colluded together for the purpose of obtaining an order from said county court to sell said land for the purpose of obtaining money for the use of said J. H. Choate; that the draft for said loan was sent to said A. F. Pyeatt by Holmes & Hibbard, and said A. F. Pyeatt paid $550 of same to said J. H. Choate, $500 to Lon L. Moore, and the balance paid on other accounts of J. H. Choate; that said A. F. Pyeatt and Lon L. Moore, at the time said loan was negotiated and during the negotiations for said loan, were partners in the farm loan business; that the abstract of title to said lands was sent by Holmes & Hibbard to Cook & Gossert, attorneys of Kansas City, Mo., for examination; that said Cook & Gossert were also title examiners for defendant the Alliance Trust Company, Limited; that the county court proceedings concerning the guardian's sale of said land contained in said abstract of title showed the consideration for said deed to be $1,500, and the application for said loan was $1,600, which fact was known to said Cook & Gossert when they examined said abstract. "(7) That said A. M. Davis and his wife, Lorena Davis, deeded said land to said E. N. Nesbitt and F. O. Ringer, partners, in con said J. H. Choate; that said Nesbitt & Ringer did not at any time pay or agree to pay said A. M. Davis or Lorena Davis anything for said deed; that at the time said deed was executed said Nesbitt & Ringer knew that they were acquiring no title to said lands, and knew that plaintiffs were in possession of said lands and owners thereof and had never parted with the title to said lands; that said Nesbitt & Ringer at the time said deed was executed knew that said deed from A. M. Davis and Lorena Davis conveyed no title to said lands and knew that said guardian's pretended sale was fictitious. "(8) That said A. F. Pyeatt, during the negotiations for said loan from defendant the Alliance Trust Company, Limited, talked to said J. H. Choate concerning said loan and mortgage. "(4) That on the 9th day of April, 1914, said plaintiffs commenced an action in this court, entitled Corneal Choate and Others, Minors, by R. M. Love, Guardian, v. the South-sideration of $400, which amount was paid to ern Surety Company and Others, to recover the amount found by said county court to be due by said J. H. Choate to said minors. "(5) That the mortgage executed on said lands by said A. M. Davis and his wife, Lorena Davis. was procured for the defendant the Alliance Trust Company, Limited, through their agents, Holmes & Hibbard, of Muskogee, Okl.; that G. A. Ramsey, agent for Holmes & Hibbard, procured from said A. M. Davis an application for a mortgage on said land; that at said time said A. M. Davis did not live on said land and exercised no control over same, but lived at a distance of about 13 miles from said land; that at the time said application was procured no one lived on said land, but the same was cultivated by one Dillingham as a tenant of plaintiffs; that said A. M. Davis was never in possession of said land and never exercised any control over same; that A. F. Pyeatt and Lon L. Moore were agents of said Holmes & Hibbard and of defendant the Alliance Trust Company, Limited, and corresponded with said Holmes & Hibbard concerning the draft in payment of said loan, and in making an abstract of title on said lands; that said J. H. Choate, at the instance of the said A. F. Pyeatt, procured power of attorney from said A. M. Davis to indorse said draft; that said A. M. Davis received no deed to said land and never talked with said A. F. Pyeatt concerning said loan and mortgage, and said A. M. Davis did not receive said loan nor any part thereof; that said A. M. Davis executed said mortgage and notes at the instance and request of said J. H. Choate; that said A. M. Davis did not at any time pay any interest or commission on said loan; that said A. F. Pyeatt was personally acquainted with said A. M. Davis at said time; that said A. M. Davis is a brother-in-law to said J. H. Choate; that said A. M. Davis was not present at the guardian's sale of said lands, and did not make any bid on same, and did not ray anything nor agree to pay anything for "(9) That Wayne H. Lasater, attorney for plaintiffs, was empowered and authorized by Hon. W. R. Wallace, judge of the county court of Garvin county, Okl., to file and prosecute this action and also to prosecute the action in No. 1851; that it is for the best interests of the minor plaintiffs in this case to try this cause before cause No. 1851. "(10) That Edward E. Holmes was agent of defendant, the Alliance Trust Company, Limited, and was a brother of L. H. Holmes of the firm of Holmes & Hibbard, of Muskogee, Okl.; that said L. H. Holmes and said Edward E. Holmes, of Kansas City, Mo., corresponded and communicated regarding said loan made by said Alliance Trust Company, Limited, to said A. M. Davis; that said Southern Surety Company and Southwestern Surety Company, defendants in cause No. 1851, were assisting in the prosecution of this action." The defendant Alliance Trust Company has appealed from the judgment of the district Court, and has made its codefendants, E. N. Nesbitt and F. O. Ringer, defendants in error in this court, said parties not having joined (185 P.) Second. That the judgment in favor of the plaintiffs is not sustained by sufficient evidence and is contrary to law, for the reason that the plaintiffs had received the proceeds of the loan evidenced by the defendant's mortgage, and that the county court, on the final accounting of their former guardian, J. H. Choate, in said court, had adjudicated the said guardian and his bondsmen liable for said proceeds. Third. That the plaintiffs had failed and refused to return to the defendant the proceeds of said loan, or to assign to the defendant their claim against the guardian and his sureties, or to prosecute this suit against their former guardian and his sureties in the district court of Garvin county, for the use and benefit of this defendant, and otherwise failed to subrogate said defendant to their rights, claims, and equities against said guardian and his sureties. As grounds for reversal four assignments' other assignments of error are practically of error are presented by counsel for the Al- the same, and will be considered together. liance Trust Company in their brief. These The gist of the argument supporting these assignments are substantially as follows: assignments is that, since the plaintiffs' forFirst. That the plaintiffs, Phelix N. Choate mer guardian was charged, on his final and Leslie R. Choate, prior to the institution account with the $1,600 received from the of the action ratified and confirmed the mortgage company, and since the new guardcompany's mortgage and elected to proceed ian, R. M. Love, had instituted suit in the against their former guardian, J. H. Choate, district court against said guardian and the and his bondsmen for the proceeds derived sureties on his bonds for the amounts found from the mortgage company, and that the due by the county court, such actions in present suit is not being prosecuted with the law constituted a recognition of the validconsent of the plaintiffs or R. M. Love, their ity of defendant's mortgage and amounted legal guardian, but, on the contrary, is being to a ratification of the same; that the prosecuted in their names by J. H. Choate law gave the plaintiffs the choice of two and his bondsmen. means of redress or kinds of relief, to wit, an action against the guardian and his sureties, or an action to recover the land and cancel the mortgage; that these means of redress were predicated on conflicting theories; and that the election of one of them operated as a bar to subsequently proceeding on the other. A number of authorities are cited in support of the proposition that, where a party has two remedies inconsistent with each other, the institution and prosecution of a suit on one theory with knowledge of the facts and his rights constitutes an election of such remedy. But we do not believe that the facts of this case bring it within the rule which counsel for defendant contend is applicable, for the reason that the two proceedings are not inconsistent with each other. It is true, as pointed out by counsel, that the county court did find the sale of the wards' land was fictitious, and charged the guardian with the amount of money which he procured on the mortgage executed to the trust company by Davis, the pretended purchaser of the land, but the mortgage company was not a party to the accounting in the county court, and said court did not have jurisdiction to determine, and did not determine, whether the mortgage company was a bona fide incumbrancer for value. Moreover, an examination of the decree of the county court on the accounting, which was introduced in evidence in this case, discloses that a number of transactions entered into the accounting, and that the guardian was held to account for funds other than those received from the defendant company. According to the judgment of the county court, the total amount due by the guardian of Phelix N. Choate was $2,859.53, and to J. H. Choate, Jr., $1,826.70. The action instituted in the district court against the former guardian, J. H. Choate, and his bondsmen, was for and on behalf of these two plaintiffs and their brother and sister, Corneal Choate and Leslie R. Choate. The Southern Surety Company was surety on the general guardian's bond for all of said minors, and it and the Southwestern Surety Company were sureties on additional sale bonds for the four minors. From this it ap[2] The propositions of law raised by the pears that the remedies were not inconsist Fourth. That the judgment is not sustained by sufficient evidence, for the reason that the evidence does not show that the guardianship proceedings are fictitious and that the deed from J. H. Choate, as guardian of said plaintiffs, to A. M. Davis, was without consideration, was fraudulent or void. [1] Directing our attention first to the fourth assignment of error, we will say that we have examined the evidence, and that the same shows, as found by the trial court, that there was no bona fide sale of the plaintiffs' land to the said A. M. Davis; that said proceedings were conducted solely for the purpose of procuring a loan on said lands for the personal benefit of J. H. Choate; and that the sale was altogether fictitious. We find further that the defendant Alliance Trust Company, through its agents, had knowledge of, or at least was chargeable with notice of, the fraud practiced upon the court and upon the minors. Under these circumstances the plaintiffs were entitled to set aside the sale as against A. M. Davis' grantees and the defendant mortgage company. Allison v. Crummey, 166 Pac. 691; Berry v. Tolleson, 172 Pac. 630; Bridges v. Rea et al., 166 Pac. 416; Pyeatt v. Estus, 179 Pac. 42. ent; for, if the instant action had been instituted first, and plaintiffs had prevailed, it would not have completely adjudicated their claims and the claims of their brother and sister against the sureties of their former guardian. We deem it unnecessary to discuss the facts of the various cases involving the doctrine of election, or to allude to what circumstances the rule has been applied. An ex-out objection. Held, further, that where the amination of the authorities, however, convinces us that the rule is never applicable unless the party against whom it is asserted has fails to show that the defendant was ever arraigned or waived arraignment, or that he pleaded to the information, where the record shows that the information was read by the county attorney to the jury, in the presence of the defendant and his counsel, and the jury informed by the county attorney that the defendant had entered a plea of not guilty thereto, and that the defendant proceeded to trial withquestion is raised for the first time on motion for new trial, the defendant is bound by the verdict of the jury and will not be heard to say that he never pleaded to the information. ING. Objections to an indictment or information liminary proceeding should be made by proper based upon the absence of any essential premotion or plea, before entering a plea of not guilty. 3. INDICTMENT AND INFORMATION 133(7) — OBJECTION TO INDICTMENT; MANNER OF BAISING OBJECTION. a choice of remedies and there are two causes of action which are inconsistent. The doc-2. INDICTMENT AND INFORMATION 133(5)— trine of election has been generally regarded OBJECTIONS TO INDICTMENT; TIME FOR MAKas being an application of the law of estoppel upon the theory that a party cannot, in the assertion or prosecution of his rights, occupy inconsistent positions. 9 Ruling Case Law, 957. The surety companies have not admitted their liability, but, on the contrary, are contesting the action filed against them. The plaintiffs may or may not prevail in that action. If we should hold that they are estopped to recover in the present action and they should then lose their action against the surety companies, they would be deprived of the proceeds of the mortgage, but their lands made subject to the payment thereof. It clearly appears that the defendant trust company has not suffered any detriment, and that, as yet, the plaintiffs have not received any benefit under their action against the sureties on the former guardian's bonds. There is no merit in the contention that this action was not authorized. These minors could not elect and did not attempt to do so. The county court directed the bringing of both actions, and the district court found that it was for the best interest of the plaintiffs for this action to be tried first, and while the present guardian did not direct the bringing of this action, it appears from the evidence in the record that Mr. Lasater was employed by him to look after the interest of his wards, and said guardian has made no objection to the prosecution of the case. Objections to the sufficiency of an indictment or information should be taken by a demurrer thereto, as provided by Code of Criminal Procedure (section 5791, Rev. Laws 1910). Our Code further provides: "When the objections mentioned in section 5791 appear upon the face of the indictment or information, they can only be taken by demurrer, except that the the subject of the indictment or information, or objection to the jurisdiction of the court over that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, and in arrest of judgment." Section 5799, Rev. Laws 1910. Under this provision, if it appears that the facts stated do not constitute a public offense, an objection to the introduction of evidence on that ground is sufficient to raise the question. 4. CRIMINAL LAW 1032(4)—APPEAL; RESERVATION OF EXCEPTIONS. Where a defendant fails to file a motion to set aside an information which was not signed by the county attorney at the time it was filed, and fails to interpose a demurrer thereto, and without objection goes to trial thereon, he waives all right to afterwards object Finding no reversible error in the record, to the information upon this ground, and canthe judgment is affirmed. not be heard upon appeal to complain that the information was not signed by the county at All the Justices concur, except HARRI- torney as directed by law. SON, J., absent. (16 Okl. Cr. 533) SIMPSON v. STATE. (No. A-3302.) (Criminal Court of Appeals of Oklahoma. Nov. 18, 1919.) (Syllabus by the Court.) 1. CRIMINAL LAW 918(10, 11), 1031(4)APPEAL; RESERVATION OF OBJECTIONS. A conviction in a felony case will not be reversed by reason of the fact that the record 5. HOMICIDE 313(3)-ASSAULT WITH INTENT; SUFFICIENCY OF VERDICT. On the trial of an information for shooting at another with a pistol, with intent to kill, the issue of shooting at another without intent to kill, but with intent to do bodily harm, was submitted to the jury. The verdict was: "We, the jury, do upon our oaths find the defendant, S. H. Simpson, guilty of assault with intent to do bodily harm, as charged in the information herein, and fix his punishment at confinement in the state penitentiary for a period of four years." Held, that the verdict is sufficiently definite and certain as to the offense of which the defendant was convicted. (185 P.) (Additional Syllabus by Editorial Staff.) 6. CRIMINAL LAW 368(2)—EVIDENCE; RES GEST. his failure to plead until after the verdict, and then complain. The necessity of a formal plea to an indictment or information is not In a prosecution for assault with intent a constitutional requirement, and, while it to kill, declarations as to what was done and was a part of the procedure at common law, said by the complaining witness and a code- in this state it is statutory, and it is now fendant at an interview some hours before the well settled that a statutory right may be shooting held admissible as part of the res waived even in capital cases. If the defendgestæ. ant had not been arraigned and asked to plead, it was his duty to claim the right to plead be Appeal from District Court, Carter County; fore announcing ready for trial, which the W. F. Freeman, Judge. S. H. Simpson was convicted of assault with a dangerous weapon with intent to do bodily harm, and he appeals. Affirmed. Sigler & Howard, of Ardmore, for plaintiff in error. S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State. record here shows that he did not do. The jury had been informed in his presence that he had pleaded not guilty, and, after the state had introduced its evidence and rested, he introduced his evidence and made his defense, the same as though his plea had actually been entered. In the trial he saved his exceptions to the rulings of the court on other questions and claimed all of his legal rights. He had as DOYLE, P. J. The information in this case fair and impartial trial as he could have charged that In Carter county, on or about the 3d day of July, 1917, "S. H. Simpson and L. R. Simpson, did then and there unlawfully, willfully and feloniously shoot at one U. H. Dowling, with certain firearms, to wit, pistols, then and there loaded with gunpowder and leaden bullets, said pistols being then and there deadly weapons and held in the hands of them, the said S. H. Simpson and L. R. Simpson, with the unlawful and felonious intent and purpose on the part of them, the said S. H. Simpson and L. R. Simpson, thereby to kill him the said U. H. Dowling, contrary to," etc. Upon this information the plaintiff in error, S. H. Simpson, alone was tried and convicted of an assault with intent to do bodily harm, and his punishment fixed at imprisonment in the penitentiary for the term of four years. From the judgment rendered on the verdict, he appeals. It is first contended that the record fails to show that the plaintiff in error was ever arraigned or waived arraignment, or that he pleaded to the information. The record shows that, when the case was called for trial, both parties announced ready for trial; that, after the jury was impaneled, the information was read by the county attorney, who then stated to the jury that the defendant had entered a plea of not guilty. Then he made the opening statement of the case. Then Mr. Howard, counsel for the defendant, made his statement of the case, and the county attorney made a reply statement. [1] Under the provisions of the Code of Criminal Procedure, a defendant has the right to plead to the indictment or information. He may, in answer to the arraignment, either move the court to set aside the indictment or information, or may demur or plead thereto. In exercising this privilege the defendant is required to act in good faith. He cannot sit quietly by and say nothing about had if the plea of not guilty had actually been entered. The issue of his guilt or innocence was tried, and he, without objection, participated in that trial, and is bound by its re [2, 3] Objections to an indictment or information based upon the absence of any essential preliminary proceeding should be made by proper motion or plea, and objections to the sufficiency of the same should be taken by a demurrer thereto as provided by Code of Criminal Procedure (section 5791, Rev. Laws). An objection to an indictment or information on the ground that the facts stated do not constitute a public offense may be taken at the trial, under a plea of not guilty, and in arrest of judgment. Section 5799, Rev. Laws. Under this provision, if it appears that the facts stated do not constitute a public offense, an objection to the introduction of evidence on that ground is sufficient to raise the question. However, where the objection to an information for a defect of form apparent on the face thereof is raised for the first time by objection to the introduction of evidence, it comes too late, and the objection should be overruled if the facts stated constitute a public offense. One of the grounds of the motion for a new trial is: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |