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Error from District Court of McIntosh County. Hon. P. B. Cole, Trial Judge.

Modified

1. A defendant in a suit to foreclose a vendor's lien reserved in an administratrix's deed purporting to convey to him certain lands of which he is in possession, may resist the payment of the balance of the purchase money upon the ground that said administratrix's deed was void but must in order to avail himself of that defense offer to restore the premises, together with the rents and profits accruing during the time possession was withheld.

2. A purchaser at an administrator's sale has a right to suppose that by his purchase he will obtain the title of the decedent, and if the order of sale is void then his bid or other promise to pay, is without consideration and cannot be enforced.

(Syllabus by the Court.)

Maxey & Runyan, for plaintiff in error.

Horace Speed, Turner & Leidke, for defendant in error.

OPINION OF THE COURT, By. KANE, J.

This action was commenced by the plaintiff in error, Margaret Zufall, administratrix of the estate of Oscar O., or Otto Zufall, deceased, as plaintiff, against Masterson Peyton, the defendant in error, as defendant, for the purpose of foreclosing a vender's lien reserved in an administratrix's deed, executed by the plaintiff to the defendant. The petition alleged, in substance, that the plaintiff is the duly acting administratrix of the estate of said decedent, by appointment of the United States court for the western

district of the Indian Territory, at Muskogee, and that said probate matter was at the time of the commencement of said suit, pending in the county court of McIntosh county, state of Oklahoma, by virtue of its being the successors of the United States court for western district of the Indian Territory; that the said decedent at the time of his death, was a member of the Cherokee Tribe of Indians, and that out of the lands of said Tribe, there had been allotted to him, certain described lands, aggregating 90 acres; that the said land at the time of the sale, was located in the western district of the Indian Territory, and that the United States court at Muskogee, had jurisdiction thereof; that the said decedent died, leaving certain debts outstanding against the estate, and that this plaintiff, acting under an order of the the said United States court, at Muskogee, offered for sale the said lands, belonging to the said estate, after the same had been duly advertised as requested by law on the 22nd day of August, 1906, at the hour, of 1 o'clock p. m., in the town of Checotah, in the western district of the Indian Territory; that at said sale the said lands were bid off by Masterson Peyton, the defendant, for the sum of sixteen hundred and fifty dollars, he being the best and highest bidder therefore; that the said Masterson Peyton paid to this plaintiff, the sum of five hundred and fifty dollars, onethird of the purchase price, and that the administratrix executed to the said Masterson Peyton an administratrix's deed to said lands, which was duly confirmed by the court on the 25th day of August, 1906, wherein she reserved a vendor's lien on said lands, for the balance of the purchase price, which remained unpaid in the sum of eleven hundred dollars, which was evidenced by a promissory note of even date therewith, due in six months after date with interest at 6 per cent. per annum from date. Thereafter, the defendant filed his answer, in which he sought to make Margaret Zufall, as administratrix, Margaret Zufall, individually, Pearl Zufall, Maggie Zufall, Lowis Zufall, George Zufall, and Grace Zufall and Herbert Zufall, minors, as the sole heirs of the said decedent, parties defendant, and alleged as a defense to

the action instituted by the plaintiff that the United States court for the western district of the Indian Territory, at Muskogee, did not have jurisdiction of the real estate belonging to the said decedent, and therefore, did not possess the authority to order a sale of said lands, and that the sale so ordered, was void, because under the Treaty between the United States Government and the Cherokee Indians, which provided for the allotment of the lands of said Tribe, the said lands could not be sold by the allottee, nor taken for debts against his estate for a period of five years from the approval of the said agreement; and that the said period of five years had not expired, and therefore the said lands belonging to the decedent were not subject to the payment of debts against his estate; that said court was without authority to confirm the sale of said lands, and that the conformation so made was void; that as he did not obtain any title under said sale, said court ought not to foreclose said vendor's lien against him. That he was not liable under the law for the payment of the balance of the purchase money, and that he was entitled to have judgment against the said administratrix, and against the heirs which he sought to be made parties defendant, for the sum he had paid to this plaintiff as a one-third of the purchase price thereon, and a lien for said amount on the lands in controversy, and he prayed that said lien be enforced, and said lands be sold for the payment and satisfaction of said lien. Thereafter, the plaintiffs, made defendants in the cross-petition of the defendant, filed their reply and answer to the cross-petition, denying all the material allegations of the defendant's answer and cross-petition and set up as an additional defense thereto that if the sale so made was void, that it had been ratified by the execution of the quit-claim deeds from all of the adult heirs of the said decedent, and prayed as in the original petition. Thereafter the defendant filed his reply, wherein he denied that the adult heirs could legally confirm the title to said lands in him, because two of the said defendants were minors, and that the restrictions were still upon said lands, and that even the adult heirs were un

able to make a valid conveyance thereof. Said cause was submitted to the court upon said pleadings, without a jury, and at the time of the hearing the plaintiff and the defendants upon cross petition, moved the court for leave to withdraw all pleadings except said petition, cross petition and answer, which was allowed by the court, and thereupon, in open court, the plaintiff and defendants on cross petition filed their demurrer to the answer and cross petition of the defendants. The demurrer alleged that said answer and cross petition did not contain facts sufficient to constitute a defense to the amended petition theretofore filed in said cause, and prayed for judgment as in the original petition. The court thereupon overruled the demurrer of the plaintiff, and of the defendants on cross petition, to the answer and cross petition of defendants, and gave judgment in favor of the defendant for the sum of $725.67, which was the amount that he had paid to the said administratrix, with interest thereon, from the date of payment, less the rents and profits which he had received from said lands while he had had the possession of the same; and the court decreed that Masterson Peyton was divested of the title of said lands by virtue of the administratrix deed and the quit claim deeds executed by the heirs of said decedent, and that the same was again vested in the heirs of the said decedent. То reverse this judgment and decree this proceeding in error was commenced.

Counsel for plaintiff in error contend that: 1. "A vendee having received a deed and the possession of land, cannot resist the payment of the balance of the purchase money' when that title of the vendor has failed, and cannot avail himself of that defense, unless he offers in his pleadings to rescind the contract and restore the premises to the vendor." 2. That, "At a judicial sale, the doctrine of caveat emptor applies, and after the confirmation thereof, the purchaser is estopped from denying that he received good title." The first of these propositions seem to be sustained by Pugh vs. Stigler, 21 Okla. 854. In that case Stigler sued Pugh in the United States court in the Indian Territory, at Poteau, to recover a bal

ance of $300, with interest, alleged to be due as purchase money on a sale of land. The petition stated, in substance, that on the 19th day of August, 1904, defendant purchased of the Midland Valley Land Company certain lots situated in the town of Stigler, Indian Territory, and agreed to pay therefor the sum of $600, paying thereon $300, and agreeing to pay the remaining $300, within one year; that the contract was in writing in which it is stipulated that the Midland Valley Land Company retained the title to the property and a lien upon all the buildings and improvements put on the property by the grantor or his assigns until all the deferred payments had been made, after which he agreed to deliver to the grantee, or his assigns, a warranty deed to the property. That the lots were a part of the homestead allotment of Ellis Jefferson, adult heirs of Ellis Jefferson, to J. W. McCloud, and from him to the Midland Valley Land Company; that it on the 15th day of May, 1905, conveyed to plaintiff all its right, title and interest in the property, and that defendant has been in possession ever since the execution of the bond; that since the maturity of the bond a warranty deed conveying the property has been tendered the defendant; that he has failed and refused to make the remaining payment. Plaintiff prayed judgment for $300, and that the same be declared a lien on the premises. The defense was that the land in controversy was allotted to Ellis Jefferson, deceased, a duly enrolled Choctaw Indian by blood and was commonly called a "dead claim,' that the restrictions upon the alienation of said land however been removed from any of the heirs of said Ellis Jefferson, who were full-blood members of said tribe; that no patent had issued in the name of Ellis Jefferson. The prayer to the court was that the contract be rescinded and for judgment against the Midland Valley Land Company for $2,800, for breach of contract and that the judgment be declared a lien upon the land, and for costs. Mr. Justice Turner, who delivered the opinion for the court, said: "It will be observed that the cross petition discloses a prayer for a rescision of the contract upon the ground that the vender had no title to convey but tee

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