J.E. Dunavant and Ras Dunavant sought in equity to quiet title as against John Evans, Jr., and his mother, Phyllis Evans, to 15 acres of land, which was a part of the allotment of John Evans, Jr. Plaintiffs relied upon a warranty deed to the land purportedly executed by Phyllis and John on September 5, 1923.
While John was a minor and owner of the land, plaintiffs had leased it. Subsequently, but prior to September 5, 1923, and after attaining his majority, John granted the land to his said *Page 212 mother. Thereafter, John executed the deed granting the land to plaintiffs for the consideration of $1,700, and without authority he forged his mother's name to the deed.
The present action was commenced July 2, 1938; one month later Phyllis answered as aforesaid, alleged by way of cross-petition her title to the land based upon her recorded deed, and on September 15, 1938, judgment was rendered on the pleadings for plaintiffs. Thereafter, and on February 8, 1939, Phyllis, acting by her guardian, petitioned for vacation of the judgment, and plaintiffs answered. On September 20, 1939, the judgment was vacated and a new judgment was entered after a hearing favorable to Phyllis. Plaintiffs below appeal.
The petition of Phyllis to vacate the judgment alleged fraud by reason of the judgment being entered against her when she was incompetent and not represented in court by her guardian, regularly appointed. The fourth subdivision of section 556, O. S. 1931, 12 O. S. 1941 § 1031, specifically provides for vacation of judgments on the ground of fraud practiced by the successful party in securing judgments, and, without doubt, the act of taking a judgment against an incompetent person not represented by guardian constitutes a legal fraud.
Moreover, subdivision 5 of the same section authorizes vacation of proceedings against persons of unsound mind, such as Phyllis, who by records and evidence through her guardian proved herself to be incompetent at the time the judgment was entered. It therefore is mere surplusage to add that subdivision 7 of the same section provides for vacation of judgments where a party has been unavoidably prevented, through casualty or misfortune, from prosecuting or defending an action. Wilson v. Ferguson, 84 Okla. 79, 202 P. 500.
The only necessary issue on the hearing to vacate judgment was the unsoundness of mind of the movant, together with the slight irregularity of plaintiffs' procedure against the incompetent without having served with summons her regularly appointed guardian so well known to plaintiffs. Roberts v. Hope, 39 Okla. 173, 134 P. 434; McNac v. Chapman,101 Okla. 121, 223 P. 350; Blair v. Blair, 124 Okla. 128, 254 P. 38; Griffin v. Galbraith, 114 Okla. 208, 247 P. 339. In this the learned trial judge committed no error, and I agree with the majority opinion.
However, plaintiffs urge that judgment on the cross-petition of defendant was barred by the statute of limitations (sec. 101, O. S. 1931, subd. 3 (two years), 12 O. S. 1941 § 95; Mansfield, Brunson, Kemp Ahrens v. King, 160 Okla. 243,16 P.2d 87), and that cross-petitioner, Phyllis, knew or should have known for more than two years last past that she was defrauded of her land for that she paid no taxes thereon and the occupants thereof, these plaintiffs, were collecting therefrom rents and profits. Wherefore, plaintiffs urge that estoppel runs against Phyllis's cross-action. It is hardly tenable that an incompetent knew or should have known anything. However, since the plaintiffs proved by the evidence of their witness, John Evans, Jr., that Phyllis did not execute their deed, and the evidence adduced by Phyllis aided in conclusively establishing the fact of a forgery, plaintiffs' case for equitable cognizance fails, but a court of equity, having acquired jurisdiction, retains it to afford complete relief to either party entitled thereto, whether that relief be at law or in equity. Equitably the plaintiffs have no further concern as to the person justly entitled to ownership of the land. They must recover, if at all, on the strength of their own title and not upon the weakness of that of their adversary.
Phyllis in the equitable action against her could present any good defense. Clark v. Duncanson, 79 Okla. 180, 192 P. 806, 16 A.L.R. 316; Muckenthaler et al. v. Noller et al., 104 Kan. 551, 180 P. 453; Williams v. Neely, 134 F. 1, 69 L.R.A. 232; Morrow v. Hanson, 9 Ga. 398, 54 Am. Dec. 346; State v. Ark. Brick Manufacturing Co., 98 Ark. 125, 135 S.W. 843. *Page 213
While it is urged in her behalf that a counterclaim is not barred until the original action against which the counterclaim stands is also barred (Scrivner v. McClelland, 75 Okla. 239,182 P. 503; Mires v. Hogan, 79 Okla. 233, 192 P. 811; Cooper v. Gibson, 69 Okla. 105, 170 P. 220; Mowatt v. Shidler,66 Okla. 303, 168 P. 1169; Advance Thresher Co. v. Doak, 36 Okla. 532,129 P. 736; Stauffer v. Campbell, 30 Okla. 76, 118 P. 391; Richardson v. Penney, 10 Okla. 32, 61 P. 584; McClure v. Johnson, 10 Okla. 663, 65 P. 103; Theis v. Beaver,22 Okla. 333, 97 P. 973) nevertheless, the decision on appeal need not turn upon that point, since recoupment is within the common-law right never intended to be impaired or abolished by adoption of the Code.
However ill it becomes plaintiffs to seek the quieting of their title to the property and deny the same right to defendant, it is certain that title claimed by forged deed, alone, may not be acquired under any doctrine of estoppel or laches, for against that the law stands. The law prescribes that title by prescription, based upon adverse holding for a period of 15 years, must be for that period of time, whereas in the cause at bar adverse possession of plaintiffs endured just two months short of that time. It is axiomatic that equity follows the law.
The majority opinion is predicated upon the issue of estoppel. Estoppel is an affirmative plea that must not only be pleaded but proved. In this case, though laches was pleaded, estoppel as such was not mentioned in the pleadings. There was no proof to sustain the plea. The facts consist of mere knowledge on the part of this old, deaf, incompetent negro woman, if knowledge may be attributed to such a person, that plaintiffs had use and occupancy of her real estate and paid taxes upon it. Presumably, use and occupancy were worth the taxes, and surely use and occupancy, short of the time fixed by the 15-year statute of limitations, are insufficient to sustain unpleaded estoppel.
The judgment should be affirmed.