she commenced living with the deceased [ law marriage to establish by evidence that Freeland Jones, under an agreement of mar- the parties to the common-law marriage riage, and lived with the deceased up until the time of his death in the year of 1910, and that their agreement and cohabitation together constituted a common-law marriage. The defendants claimed title to the land under a deed executed by Freeland Jones in 1907 and a deed executed by him in the year 1908. Upon the issues joined a trial was had before the honorable R. W. Higgins, district Judge, in the district court of McIntosh county. The court found the issues in favor of the plaintiff; found that the plaintiff was the surviving wife of the deceased Freeland Jones; that the plaintiff was the owner of the lands in controversy, and entitled to the immediate possession thereof; and rendered judgment quieting the title to the plaintiff in and to said lands, and for the immediate possession of the same. To reverse this judgment the defendants, T. R. H. Smith and Pattie B. Smith, have appealed, and appear in this court as plaintiffs in error against Annie Blunt, defendant in error. the parties will be referred to as they appeared in the trial of the cause. Eight assignments of error are found in the petition of the plaintiffs in error. The first assignment of error presents the question as to whether the trial court erred in holding that the plaintiff, Annie Blunt, was legally married to Freeland Jones. Upon examination of the record we believe there was sufficient testimony to establish the relation of husband and wife between Freeland Jones and the plaintiff, Annie Blunt. Having lived together for two years or more prior to the death of Freeland Jones, and held themselves out to the public as husband and wife, under numerous decisions of this court the same constitutes in law a valid common-law marriage. were competent to enter into such a contract, and, if either of the parties are disqualified from assuming the marital relation by reason of having a former husband or wife, then, in such a situation, they are incompetent to enter into a contract of marriage; but the trial court found the issues in favor of the plaintiff on this proposition, and there appears to be sufficient evidence in the record to support his findings. The plaintiff being the surviving wife of Freeland Jones, deceased, under all of the testimony adduced in the trial of the cause, is entitled to inherit part of the estate of the deceased, if not all. If the deceased left a surviving father, mother, brother, or sister, then she would only be entitled to inherit one-half of his estate. The plaintiff testified that the deceased did have a half-brother and half-sister, but whether they are living or dead we are unable to say from the record. However, it is evident that part of the judgment of the court decreeing the plaintiff to be the owner of all of the lands in controversy is erroneous. The deeds under which the defendants claim title to the lands in controversy were properly adjudged to be invalid. The first deed, executed in 1907, having been executed by a full-blood Creek Indian, purporting to convey lands which he had inherited from his mother while a minor, and having never been approved by the Secretary of the Interior, is void, and the deed executed in 1908 by Freeland Jones while a minor according to the enrollment records, and having not been approved as required by law, is void. Counsel for defendants insist that the plaintiff in this action must recover upon the strength of her own title, and this rule of law is well settled. Hurst v. Sawyer, 2 Okl. 470, 37 Pac. 817; Jennings v. Brown, 20 Okl. 294, 94 Pac. 557; Shaffer v. Turner, 43 Okl. 744, 144 Pac. 366; Linan v. Beck, 51 Okl. 727, 152 Pac. 344; Aldridge v. Whitten, 56 Okl. 694, 156 Pac. 667; and Reirdon v. Smith, 62 Okl. 48, 161 Pac. 798. But the plaintiff is entitled to the possession of the lands as against the defendants, as they have no title, and the plaintiff having established title superior to that of the defendants. [1] Counsel for the defendants contend that the evidence shows that the plaintiff in this action knew that Freeland Jones had lived prior to the time the plaintiff and the said Jones entered into the marital relation with another woman by the name of Jennie Fish, whom he claimed as his wife, and, the said Jones having a wife at the time he assumed the marital relation with the plaintiff, that the alleged marriage of the plaintiff [2] We conclude, upon the facts as disand the said Jones was invalid; but upon a closed by the record, that the plaintiff, if careful consideration of the record we are not the only heir to the property in conunable to say that there was sufficient evi- troversy, is unquestionably a tenant in comdence to show that Freeland Jones at the mon with other heirs not parties to this actime he entered into the marriage contract tion. The law appears to be well settled with the plaintiff was legally married to and supported by the authorities that a Jennie Fish. It is true that, in order to con- tenant in common is entitled to the possesstitute a valid common-law marriage, the sion of real estate as against all of the parties entering into the same must be com- world except his co-tenants, and may mainpetent under the law to enter into such a tain ejectment and recover possession of the contract, and the burden of proof is upon entire tract as against strangers to the the parties asserting that the relation of title. 7 R. C. L. par. 107, p. 906; Coulson v. husband and wife exist under a common- | Wing, 42 Kan. 507, 22 Pac. 570, 16 Am. St. (202 P.) 501-Judgment by a court having jurisdiction not appealed from becomes final, although erroneous. Rep. 503; Bergere et al. v. Chaves et al., 14 | 3. Judgment The court in the case of Bergere v. Chaves, having jurisdiction of the parties and the supra, said: "A tenant in common may sue separately in ejectment, and, if the defendant shows no title, he is entitled to recover possession of the entire estate, in subordination to the rights of his cotenants." [3] In the case at bar the plaintiff, as the surviving wife of the deceased, inherits at least a one-half interest in the property in controversy, and, according to the undisputed testimony, the only title relied upon by the defendants is based upon deeds executed by a full-blood Creek Indian minór. Therefore the same are absolutely void. The defendants having failed to show any title in the lands, the judgment of the trial court should be affirmed decreeing the plaintiff the possession of the property in controversy; but that part of, the judgment decreeing the plaintiff to be the owner in fee simple of all the lands involved in the action should be vacated, as the evidence fails to show the plaintiff to be the only heir of the deceased, Freeland Jones. It is so ordered. Where a court of competent jurisdiction, subject-matter of an action, renders judgment therein, it matters not that such judgment may be erroneous, not having been appealed from, it was final, became the law of the case, and the parties were bound thereby. Appeal from District Court, Haskell County; W. H. Brown, Judge. Action by Ada T. Cushing, executrix of the estate of Francis J. Cushing, deceased, against J. B. Holleman and others, as defendants. Judgment for plaintiff, and defendant Holleman appeals. Affirmed. E. O. Clark, of Stigler, for plaintiff in error. Delbert M. Tibbetts, of New York City, and Fred W. Green, of Guthrie, for defendant in error. NICHOLSON, J. This action was brought in the district court of Haskell county, by Francis J. Cushing as plaintiff, against W. M. Shelton, Sarah Shelton, J. B. Holleman, Sue Holleman, W. E. Tirey, and L. C. Tirey as defendants, to recover the sum of $1,191.63, with interest thereon upon a promissory note executed and delivered by the defendants W. M. Shelton and Sarah Shelton to Samuel H. JOHNSON, KANE, MILLER, and NICH-Graves, and for the foreclosure of a mortgage OLSON, JJ., concur. PITCHFORD, V. C. J., dissents. (84 Okl. 156) HOLLEMAN v. CUSHING et al. given to secure the payment of said note and covering certain lands in Haskell county. The petition is in the usual form in foreclosure suits, and alleged that the defendants W. M. Shelton and Sarah Shelton were on October 7, 1909, the owners of the real estate described, alleged the execution of the note and mortgage by them and that said note had been indorsed and said mortgage assigned to (Supreme Court of Oklahoma. Dec. 20, 1921.) the plaintiff by said Samuel H. Graves; that (Syllabus by the Court.) 1. Estoppel 38-Vendor's after-acquired title which he attempted to convey inures to grantee's benefit by estoppel. Where a grantor having no title, a defective title, or an estate less than that which he assumed to grant, conveys by warranty or covenants of like import, and subsequently acquires the title or estate which he purported to convey, or perfects his title, such after acquired or perfected title will inure to the grantee or to his benefit, by way of estoppel. 2. Estoppel 37-Where mortgagor had no title, his after-acquired title inures to mortgagee's benefit. If one gives a mortgage on land in his possession to which he at the time has no title, but afterwards acquires title to the same, such title inures to the benefit of the mortgagee, and the mortgage lien attaches to the land, as against the mortgagor, the moment the mortgagor's title thereto is acquired. said note was past due, and remained unpaid; that the defendants J. B. Holleman, Sue Holleman, W. E. Tirey, and L. C. Tirey each claimed some right, title, or interest in and to said real estate adverse to the lien of the plaintiff, but such right, title, or interest of said defendants, if any, was junior and inferior to the lien of the plaintiff; and prayShelton and Sarah Shelton and for forecoed for a personal judgment against W. M. sure of said mortgage against all of said defendants. The defendant L. C. Tirey filed a disclaimer, and the defendants W. E. Tirey and J. B. Holleman filed separate answers denying the allegation of plaintiff's petition; Tirey pleading a mortgage from Holleman to him, and Holleman pleading the invalidity of plaintiff's mortgage because the makers thereof were without title or interest in the lands described. The Sheltons did not answer but made default. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The record discloses that the land involv- vived in the name of Ada T. Cushing, execed was allotted to Elias Darneal, a Choctaw utrix of his estate, and the court rendered citizen of one-fourth Indian blood, and that judgment in her favor, and against said depatent was issued to him on October 27, fendants foreclosing said mortgage, to re1903; that on July 28, 1908, Elias Darneal verse which this proceeding in error is and wife conveyed said land by warranty brought. deed to the defendant L. C. Tirey; that on August 7, 1908, L. C. Tirey and wife conveyed said land by warranty deed to the defendant W. M. Shelton; that on October 7, 1909, Shelton and wife executed the mortgage sought to be foreclosed. The record further discloses that on January 26, 1912, Elias Darneal executed and delivered to J. W. Frederick and A. C. King a warranty deed conveying an undivided one-half of 330 acres of land including the land involved, and on May 14, 1912, Elias Darneal and wife executed to A. C. King and J. W. Frederick another warranty deed conveying said 330 acres of land, and on the same day executed to the defendant Holleman a warranty deed conveying an undivided one-half of said land; that on February 25, 1913, Darneal and wife executed to the defendant L. C. Tirey a quitclaim deed conveying to him the land involved together with other lands. It further appears that on the 6th day of December, 1910, in an action then pending in the district court of Haskell county wherein Elias Darneal, an infant under the age of 21 years, who sued by his guardian, was plaintiff, and L. C. Tirey and others were defendants, judgment was rendered in favor of the plaintiff and against the defendant L. C. Tirey declaring the deed executed to Tirey on July 28, 1908, void, but awarding him judgment against the plaintiff for $1,210, the value of improvements placed upon the land by the defendant Tirey, Samuel H. Graves and W. M. Shelton were named in the caption of the petition as defendants in this action, but service of summons was not had upon either of them and no appearance made by them, and judgment was not rendered against them. It further appears that on June 19, 1913, Elias Darneal and wife executed to Ralph T. Hemphill a warranty deed purporting to convey 330 acres of land, including the land in controversy, and that afterwards by various conveyances to him the defendant J. B. Holleman acquired the interest of J. W. Frederick, A. C. King, and Ralph T. Hemphill in said land. It further appears that on the 26th day of February, 1914, L. C. Tirey obtained judgment in the district court of Haskell county against J. W. Frederick, A. C. King, J. B. Holleman, and Ralph T. Hemphill canceling the deeds executed to them by Darneal, and quieting the title to said land in him, and that on June 19, 1914, said L. C. Tirey conveyed said land by quitclaim deed to the defendant J. B. Holleman. The plaintiff Francis J. Cushing having died, the cause was re 'The plaintiff in error urges three grounds. for reversal: First, that the rules of pleading, evidence, and the burden of proof in this case, as between plaintiff and defendant, are the same as in an ejectment action, and that as plaintiff alleged that W. M. Shelton and Sarah Shelton were the owners and in possession of the real estate involved, it was necessary to prove this allegation, and that she failed in this proof; second, that the deed from L. C. Tirey and wife to W. M. Shelton was illegal, against public policy, and void, and the covenants thereof cannot be validated by the doctrine of relation and estoppel by covenant of warranty so as to make applicable the rule with reference to after-acquired title; and, third, that the allottee's deed to the defendant Holleman and his grantors Frederick and King was not champertous and void. The second deed of the allottee to Tirey conveyed nothing to Tirey be cause title had already been conveyed by the allottee. We will consider the first and second propositions together. It is the contention of plaintiff in error that the deed from Tirey to Shelton and the mortgage from Shelton to plaintiff are void and amount to nothing be cause they are attempted conveyances of Indian lands while the restriction upon alienation thereof still remain. If it was sought to apply the doctrine of relation and estoppel as against the allottee Darneal, there would be merit in this contention and the authorities cited would apply; but the allottee is not a party to this suit and his interests are in no manner involved nor his conveyance questioned. He has parted with the title to the lands and is not interested in the result of this suit. We are unable to see any reason why the deed from Tirey to Shelton and the mortgage from Shelton to Graves are illegal or against public policy, and we are not advised of any obstacle preventing the conveyances by them. Neither of them were laboring under any disability, they are both white men over the age of 21 years, and no reason is assigned why they were incapable of executing the deed and mortgage and being bound thereby. The question to be determined is whether, under the facts disclosed, the title acquired by Tirey by the deed from Darneal and wife of date February 25, 1913, inured to the benefit of the plaintiff through Shelton, the grantee in the deed from Tirey of date August 7, 1908. This deed contains the following covenant: "First parties hereby covenant that they are the lawful owners of the said described (202 P.) premises; that the same are free, clear and discharged of and from all former grants, charges, taxes, judgments, mortgages and other liens and incumbrances of whatsoever nature and kind; and that they will and their heirs, executors and administrators shall forever warrant and defend the same to the said party of the second part, his heirs and assigns; especially covenanting and agreeing to protect the said title and defend the same in the offices of the general government or in any court having jurisdiction." The mortgage from Shelton and wife to Graves, assigned to and owned by the plaintiff and sought to be foreclosed herein, contains the following: "And the said parties of the first part do hereby covenant and agree that at the delivery hereof they are the lawful owners of the premises above granted, and seized of a good and indefeasible estate of inheritance therein, free and clear of all incumbrances, and that they will warrant and defend the same in the quiet and peaceable possession of said party of the second part, his heirs and assigns, against the lawful claims of all persons what soever." [1-3] It is the general rule that if a grantor, having no title or a defective title or an estate less than that which he attempts to grant, conveys by warranty or covenants of like import, and subsequently acquires the title or estate which he purported to convey, or perfects his title, such after-acquired or perfected title will inure to the grantee or to his benefit, by way of estoppel. Brown et al. v. Barker, 35 Okl. 498, 130 Pac. 155; 16 Cyc. 689; 8 R. C. L. 1058; 21 C. J. 1074; Wholey v. Cavanaugh, 88 Cal. 132, 25 Pac. 1112; Tupy v. Kocourek, 66 Ark. 433, 51 S. W. 69; Douglass v. Scott, 5 Ohio, 195; Armstrong v. Portsmouth Building Co., 57 Kan. 62, 45 Pac. 67. 1 and Ralph T. Hemphill were defendants, canceling the aforementioned deeds from Darneal and wife to them as well as the deed to Hemphill, and by which judgment the defendants were perpetually enjoined and forbidden to claim any right, title, or interest in or to said lands by virtue of said deeds, and the title to said land was quieted in the plaintiff therein, Tirey. This judgment was not appealed from, and afterwards, and on June 19, 1914, the defendant L. C. Tirey and wife executed to the defendant Holleman a quitclaim deed conveying all their right, title, and interest in and to said land to him. The plaintiff in error claims that the judgment in favor of Tirey and against him and the other defendants was erroneous and never became final because the plaintiff in that cause, Tirey, settled with Holleman before the period within which the cause might have been appealed to this court had expired, and quitclaimed and quit; but with this contention we cannot agree. That was a judgment of a court of competent jurisdiction which had jurisdiction of the parties and the subject-matter of the action, and it matters not whether the judgment was correct or erroneous; it was final, and not having been appealed from became the law of the case, and the plaintiff in error was bound thereby. We conclude that even though the deed of July 28, 1908, from Darneal and wife to the defendant Tirey, was invalid and so decreed by the district court of Haskell county, and the deed from Tirey and wife to Shelton did not convey the title to said land, and Shelton was without title when he executed the mortgage sued on, yet when Tirey afterwards acquired the title to the land by the deed of February 25, 1913, from Darneal and wife, and the deeds of Holleman, Frederick, and King having been canceled and the title quieted in Tirey by decree of the court, the title thus acquired by Tirey inured to the benefit of Shelton, and through him to the plaintiff. Rev. Laws of Oklahoma 1910, § 1160; Christy v. Dana, 34 Cal. 548; Hill v. O'Bryan, 104 Ga. 137, 30 S. E. 996; Clark v. Baker, 14 Cal. 612, 76 Am. Dec. 449. If, as contend the defendant in error to prove title in Shelton, she sustained this burden. It appears that the deed of date the 28th day of July, 1908, executed by Elias Darneal and wife to the defendant L. C. Tirey, was by the judgment of the district court of Haskell county on the 6th day of December, 1910, decreed to be null and void, but neither the defendant Shelton, the plaintiff, nor Samuel H. Graves, the mortgagee, were parties to that action, and their rights were not affected by plaintiff in error, the burden was upon ed by such judgment. After the rendition of this judgment and on January 26, 1912, Darneal and wife executed to J. W. Frederick and A. C. King a deed to an undivided onehalf of the lands involved, and on May 14, 1912, conveyed to the defendant Holleman an undivided one-half thereof. On February 25 1913, Darneal and wife conveyed to the defendant Tirey by quitclaim deed all their right, title, and interest in said land. On the 26th day of February, 1914, the district court of Haskell county rendered judgment in favor of the defendant L. C. Tirey in a cause wherein he was plaintiff and the defendant Holleman and J. W. Frederick, A. C. King, Counsel for plaintiff in error advance the argument that the deeds from Darneal to Holleman, Frederick, and King were not champertous and void, and insist that Holleman obtained perfect title by the deeds from the allottee to him and his grantees, Frederick and King. This argument and the authorities cited might have been of avail had they been used in the trial of the case of Tirey v. Holleman and others, in the district court of Haskell county; but the question here urged was decided adversely to plaintiff in error in that Af case. He did not appeal from the judgment of plaintiff against the defendant R. T. Stuthere rendered against him, but electing to art. The latter filed a motion for new trial, abide by that judgment obtained a convey- which was overruled, and he appeals. ance from Tirey, and he cannot in this case firmed. attack the judgment there rendered. We conclude that the judgment of the trial court is correct and should be affirmed, and it is so ordered. HARRISON, C. J., and PITCHFORD, McNEILL, and ELTING, JJ., concur. (84 Okl. 207) STUART v. EDWARDS. (No. 10419.) (Supreme Court of Oklahoma. Nov. 22, 1921. Rehearing Denied Jan. 10, 1922.) (Syllabus by the Court.) 1. Appeal and error 853-Party will not be Where a guarantor executes a note at or about the time a compromise of settlement is made, and where both contracts form a part of the same transaction, one consideration will support both contracts; but if the guaranty is executed after the execution of the original contract, and not in pursuance of the original contract, the consideration for the original contract will not support such subsequent guaranty. Section 1028, Rev. Laws 1910. 3. Novation 5-One may bind himself as an original obligor for another's debt, where second obligation is accepted as a new promise upon the consideration of canceling the antecedent obligation. A person may bind himself as an original obligor for the debt or obligation of another, where the second obligation is accepted as a new promise, and is made upon the consideration of canceling an antecedent obligation owed by the third party. Section 1030, Rev. Laws 1910. Appeal from District Court, Oklahoma County; Edward Dewes Oldfield, Judge. Action by W. W. Edwards against R. T. Stuart & Co. and R. T. Stuart. Judgment in favor of R. T. Stuart & Co. and in favor Everest, Vaught & Brewer, of Oklahoma City, for plaintiff in error. Ledbetter, Stuart, Bell & Ledbetter, of Oklahoma City, for defendant in error. ELTING, J. This action was commenced in the district court of Oklahoma county by W. W. Edwards, plaintiff, against R. T. Stuart & Co., and R. T. Stuart, defendants. There was an original petition filed by the plaintiff, and then afterwards, and on March 13, 1918, he filed an amended petition. In the amended petition the plaintiff set out two causes of action. The first cause was based upon an alleged settlement and agreement made with R. T. Stuart & Co. and R. T. Stuart in person, whereby they agreed to pay the plaintiff, W. W. Edwards, $5,000 in settlement of a claim of the plaintiff against the defendants, which claim was in excess of $5,000, and as a result of said settlement between the plaintiff and the defendants the corporation paid the plaintiff $2,000 cash, and left a balance due him from the defendants of $3,000. Although demand was made upou them, they had failed and refused to pay him the $3,000, praying for judgment against the defendants and each of them for $3,000, and interest at the rate of 6 per cent. from September, 16, 1916. The second cause of action alleged by the plaintiff was, in substance, as follows: That on the 15th day of September, 1916, when the compromise settlement was made that he desired the defendants to execute to him a negotiable note for the balance of $3,000 but that R. T. Stuart, president and manager of R. T. Stuart & Co., stated to the plaintiff that the company did not desire to have any outstanding negotiable notes against it, they being recently in Oklahoma City, and that it might hurt their credit, but that R. T. Stuart himself would execute to the plaintiff a note for $3,000 as evidence of the debt due by him and the said R. T. Stuart & Co., and that said note to be security and guaranty of the payment of said indebtedness on or before the 15th day of September, 1917, and that R. T. Stuart did execute his personal note to the plaintiff due September 15, 1917, and provided for $3,000 and attorney's fee of $300 and prayed for judgment for $3,300 and interest thereon provided in said note from the 15th day of September, 1917, at the rate of 10 per cent. To which amended petition R. T. Stuart filed a separate answer, in which he denied that he owed any debt to the plaintiff either individually or jointly with R. T. Stuart & Co., denied that there was any consideration for the note passing to him, and as a further For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |