The following assignments of error as to the action of the lower court are urged by counsel for plaintiff in error:
(1) J. D. Patterson, a witness for the plaintiff, on original examination stated:
"The public meetings that were held there were well attended. I do not know how I got notice of them. Q. I will ask you whether or not the matter of these restrictions being removed and the sale of these lots, I mean the appraisement of the lots and the making of proof and the matter connected with the trustee and the procurement of title thereunder and so on, as to whether there was much discussion or not about that matter in the town of Weleetka? By Mr. Potter (Counsel for Defendant): We object. Immaterial. By Mr. Wood (Counsel for Plaintiff): It is proper to show that it was a matter generally talked of in Weleetka, and notice brought home to everybody who was there about what was going on at the meetings and proceedings. By the Court: Objection sustained."
(2) Q. "State to the jury what improvement, if any, you have made on this property. Counsel for Plaintiff: We object. * * * It is immaterial. By the Court: Overruled." And the witness was permitted to testify as to the improvements and the value thereof, and, further, that he went in possession of said lot under a bill of sale from Martha Lowe, the allottee.
(3) The court, inter alia, charged the jury as follows:
"(a) And you further find that this defendant participated in said public mass meeting, or had notice of said public mass meeting, knowing that it was called for the purpose of appointing a committee from the occupants of the Weleetka townsite. (b) And you further find that before said Simms sold said lot, pursuant *Page 209 to said advertisement, the defendant was given an opportunity to pay the amount due on his lot, including the cost of advertising, and take a deed therefor from the said Simms, and failed to pay said sum and redeem his lot. (c) Providing he gave the defendant the right to pay the assessment and cost of advertising on his lot at any time before said sale was made. (d) And the burden is upon him to show by a preponderance of the evidence that the sale of said lot was made to him by the trustee, B. O. Simms, and that said B. O. Simms made to him a deed to said lot under the circumstances as set forth in the above instructions."
(4) The court's refusal to direct a verdict in favor of plaintiff.
(5) The court's refusing to adjudge plaintiff to be entitled to the possession of the premises.
1. It is insisted that this evidence was competent for the purpose of bringing home to the defendant notice of the action of the mass meeting held by the occupants of said townsite in regard to listing, appraisement, and assessing lots, and the powers that might have been given to any committee appointed by them as to making the required proofs of the right of occupancy before the execution of the deeds; the trust being for the benefit of the occupants of said townsite as an aggregation. No authority is cited in support of this contention. Unless it be shown that the defendant in error was present at said meeting or place where such statements were made, and that he heard such statements, the same were inadmissible and hearsay as to him. No proper predicate appearing to have been laid for the introduction of such evidence, it was inadmissible.
2. The defendant in error went into possession of this lot in question under Martha Lowe, a member of the Creek Tribe of Indians, who gave him a bill of sale with a view of giving him a right of occupancy, covenanting therein that at such time as her restrictions against alienation were removed and she were permitted she would convey him the title in fee. This bill of sale was void, and was not admissible for any purpose other than to explain how the defendant in error came in possession of said lot. *Page 210 It was not competent to prove title in the defendant in error, but to show that he was an occupant of such lot as was contemplated by the Secretary of the Interior in the removal of restrictions on said land, wherein he provided that such allottee should sell such lots to such parties as were designated by the occupants. The evidence as to the improvements and amount and value thereof placed on said lot by the defendant in error was competent for the purpose of showing his occupancy and the extent thereof.
Counsel for plaintiff in error, contending that the evidence shows that Simms, the trustee, acted in perfect good faith in refusing to accept the tender of the payment of the assessment without the production of the certificate of occupancy from the committee, insist that the evidence relative to the improvements, the extent, and value thereof was "so manifestly prejudicial to the rights of the plaintiff that it would seem necessary only to call attention to it." The pro rata assessment made on said lot was $37.50, and the evidence admitted showed the improvements on the lot to be worth about $600. Why was not this evidence, in connection with all the circumstances, competent on the issue as to the good faith of the trustee? Further, the defense interposed was an equitable one; the verdict of the jury thereon being merely advisory to the court. The court heard all the evidence, and approved the verdict of the jury. Under such circumstances, in view of the other conclusions hereinafter reached, assuming that the evidence as to the value of the improvements was immaterial, the admission of such evidence did not constitute a reversible error.
3. Was the instruction "a" relative to defendant's participating in said public mass meeting or having notice of the same, with the knowledge of the purposes that it was convened for, etc., erroneous for the reasons (1) that the defendant was not entitled to notice; (2) that the court did not define what it took to constitute notice; and (3) because it required the jury to find that the defendant must not only have had notice of the meeting but also of the action it was proposed to take. We do not think that the defendant could be deprived of his rights or be bound by the *Page 211 acts of the assembly of lot occupants without his participation therein or subsequent ratification of same. The plaintiff, not having requested the trial court to instruct the jury what would constitute notice, will not be allowed here to complain of such omission.
That portion of the instruction, if (b) "before said Simms sold said lot pursuant to said advertisement the defendant was given an opportunity to pay the amount due on said lot, including the cost of advertisement, and take the deed therefor from said Simms and for him to pay said sum and redeem his lot," on this record seems to be correct. The trustee, Simms, holding said land to be conveyed or disposed of to the occupants under the terms and conditions imposed by the Secretary of the Interior, would receive pro rata assessments to be reimbursed for moneys paid for the fee-simple title from the allottee. No forfeiture could be visited upon said occupant (the defendant) except either by express or implied laches or default on his part. Forfeitures are neither favored in law nor equity. And no forfeiture will be visited upon the defendant in this case unless he, after knowledge of the facts, either expressly or impliedly so acted as to bring same upon himself.
The instruction "c," "provided he gave the defendant the right to pay the assessments and cost of advertisement on his lot at any time before said sale was made," was substantially covered by instruction "b," which we held above not to operate as prejudicial error.
As to instruction "d," relating to the burden of proof, it states the general rule. Counsel for plaintiff in error appears nowhere to have requested the court to instruct the jury as to what presumption arose from the conveyance as to the terms of the trust having been complied with. Not having made such request, he is not entitled on review here to complain.
4. Counsel for the plaintiff in error in his brief states:
"We will not contend that the verdict is not so insufficiently sustained by the evidence as to justify the setting of it aside on *Page 212 that ground, yet we do say that the weight of the evidence was so decidedly in favor of the plaintiff, and the purpose of the defendant in his pleadings, and in the manner of conducting the trial, to unduly prejudice the jury against the plaintiff, was so evident that the court ought to scan closely the whole record to see that in the introduction of evidence and in the instructions to the jury the rights of the plaintiff were carefully guarded."
We have carefully examined the record in this case and the verdict of the jury under the evidence, and judgment should have been entered as hereinafter indicated.
5. The defendant was not entitled to defend against this action without tendering the amount of the assessment on the lot and making the tender good. He seems to have gone on the theory that he was not bound to recognize the plaintiff in error by making a tender to him instead of Simms, the trustee, after plaintifff's purchase at the sale made by Simms. A committee having been appointed to investigate and certify as to who the occupants were, the defendant denied that he participated in these meetings or had knowledge thereof. The jury found with him, and, if he had not such knowledge and had not consented either expressly or impliedly to the appointment of such committee for such purposes, he could not have been deprived of his right as an occupant to the title to such lot without his consent either express or implied. Simms, the trustee, had advanced the purchase price for this land, being entitled to reimbursement for such payment out of the assessments as paid; thus being a trustee coupled with an interest. The conveyance to him was not solely for the purpose of giving him power to convey, but also to secure him for the advancements made to the allottee in the way of the purchase price. Under the laws of Arkansas then in force in the Indian Territory, a mortgagee after default by the mortgagor was entitled to the possession of the property until the mortgage debt was discharged, and could maintain ejectment therefor.Simms v. Richardson, 32 Ark. 304; Wells et al. v. Rice et al.,34 Ark. 346; Whittington v. Flint, 43 Ark. 504, 51 Am. Rep. 572; Cohn v. Hoffman, 45 Ark. 376. *Page 213
That the assessment on said lot was due to the trustee, Simms, before he conveyed to the plaintiff in error is not controverted. In the case of Harding v. Gillett, 25 Okla. 199,107 P. 665, which has been before this court as well as the Supreme Court of the United States at different times (Romig v.Gillett, 10 Okla. 186, 62 P. 802; Gillett v. Romig et al.,17 Okla. 324, 87 P. 325; Harding v. Garber, 20 Okla. 11,93 P. 539; Romig et al. v. Gillett, 187 U.S. 111, 23 Sup. Ct. 40, 47 L.Ed. 97), it was held that the purchaser at a void mortgage foreclosure sale succeeds to the rights of the original mortgagee. The tender made by the defendant to the trustee, Simms, unless kept good, did not discharge the trust lien and have the effect of vesting the legal title in the defendant.Canfield v. Conkling, 41 Mich. 371, 2 N.W. 191; Renard v.Clink, 91 Mich. 1, 51 N.W. 692, 30 Am. St. Rep. 458; Schearffet al. v. Dodge, 33 Ark. 340; Frank v. Pickens, 69 Ala. 369;Thompson v. S. J. K. L. B. Ass'n, 23 Kan. 209. The rule seems to be that a conveyance by a trustee, although in violation of the trust, vests the legal title in such grantee, thereby substituting him as trustee, and the remedy of thecestui que trust is to redeem. Robinson v. Stone, 118 Ala. 273, 24 So. 984, 45 L. R. A. 66, 72 Am. St. Rep. 160; 28 Am. Eng. Encyc. of Law (2d Ed.) p. 785. In jurisdictions where the mortgage vests the legal title in the mortgagee, a conveyance of the mortgagee of the mortgaged premises operates to convey all of his interest in the mortgaged property. Sadler v.Jefferson, 143 Ala. 669, 39 So. 380; 27 Cyc. p. 1291, and authorities cited in footnote 50. Where the mortgagee executes a deed in attempting to execute a power of sale, which proved to be ineffective as a conveyance, it operates to convey all the mortgagee's interest. Salvage v. Haydock, 68 N.H. 484,44 A. 696; Williams v. Washington, 40 S.C. 457, 19 S.E. 1.
Section 4600, Wilson's Rev. Ann. St. Okla. 1903, provides:
"Where, upon the statement in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, though a verdict has been found against such party." *Page 214
The judgment herein was that the plaintiff take nothing and the defendant go without day, with his costs.
The judgment should be modified permitting the defendant to pay into court for the plaintiff in error within a reasonable time the amount of said assessment, together with the interest and expenses of advertising and the costs accruing, not only in the lower court, but in this court (Hamlett v. Tallman,30 Ark. 505; Woodruff v. Trapnall, 12 Ark. 640; Park v. Wiley, 67 Ala. 310), upon which the plaintiff shall be required to convey the title to said lot to the defendant.
All the Justices concur.