The Trial of Title to Land in Oklahoma

4. If such consideration, before it is rendered to him, fails in a material respect, from any cause; or,

5. By consent of all the other parties."

Sec. 476. Rescission and cancellation allowed for mistake,

when.

A stipulation that errors of description will not avoid a contract, or shall be the subject of compensation, or both, does not take away the right of rescission for fraud, nor for mistake, where such mistake is in a matter essential to the inducement of the contract, and is not capable of exact and entire compensation."

Sec. 477. Canceling and rescinding-How and when allowed. Rescission, when not affected by consent, can be accomplished only by the use, on the part of the party rescinding, of reasonable diligence to comply with the following rules: 1. He must rescind promptly, upon discovering the facts which entitle him to rescind, if he is free from duress, menace, undue influence, or disability, and is aware of his right to rescind; and,

2. He must restore to the other party everything of value which he has received from him under the contract; or must offer to restore the same, upon condition that such party shall do likewise, unless the latter is unable, or positively refuses to do so.9

Snyder, 1,135; Wilson, 825; North Dakota, Sec. 5,378 (1905), identical; South Dakota, 1,283 (1903), identical; see McNinch v. Northwest, etc., 23 Okla. 386, 100 Pac. 524; Bank v. Maddox, 4 Okla. 583, 46 Pac. 563; Davis v. Beman, 50 N. W. (N. D.) 836; Fahy v. Estuly, 55 N. W. (N. D.) 580; Hilton v. Advance, 66 N. W. (S. D.) 816; Rosmussen v. Reedy, 84 N. W. (S. D.) 205; Ames v. Burnham, 108 N. W. (S. D.) 549; National

Bank v. Taylor, 58 N. W. (S. D.) 297; Fletcher v. Arnett, 57 N. W. (S. D.) 915; Hull 1. Caldwell, 54 N. W. (S. D.) 700; see Stevens v. Elliott, 118 Pac. (Okla.) 407, for rule of return of consideration where plaintiff is a minor Creek freedman.

8 Snyder, 1,136; Wilson, 826; Dakota Code, 3,590 (1887).

9 Snyder, 1,137; Wilson, 827; North Dakota, 5,380 (1905), identical; South Dakota, 1,285 (1903),

Sec. 477a. Mental incapacity to execute a deed.

It is not necessary, in order to entitle one to have a deed canceled upon the ground of mental incapacity, to show that he was at the time of the execution of the deed, insane, or so mentally weak that he was entirely disqualified to transact any business. It is sufficient to show that his mental weakness and infirmity is such that he is incapable of understanding the nature and magnitude of the transaction, and that there is gross inadequacy for the conveyance. From these circumstances imposition or undue influence will be inferred, and they alone are sufficient to secure the aid of a court of equity. The court in setting forth these propositions, quoted from an opinion by Judge Story, as follows:

"Extreme weakness will raise an almost necessary presumption of imposition, even when it stops short of legal capacity; and, though a contract in the ordinary course of things, reasonably made with such a person might be permitted to stand, yet if it appeared to be of such a nature as that such person could not be capable of measuring its extent or importance, its reasonableness, or its value fully and fairly, it cannot be that the law is so much at variance with common sense to uphold it.'

99 10

identical. One cannot claim a benefit and repudiate the burden. Willoughby v. Fidelity, 16 Okla. 546, 85 Pac. 713. The property received must be returned. Guss v. Nelson, 14 Okla. 296, 78 Pac. 170. The consideration must be returned. Johnson V. Bennadi, 52 N. W. (S. D.) 1,057; Lovell v. McGaughey, 66 N. W. (S. D.) 1,085. There must not be any laches. Equitable v. Detroit, 97 N. W. (S. D.) 17. Payments made prior to discovery do not prevent rescinding after discovery. Grewing v. Minn., 80 N. W. (S. D.) 176.

10 Paulter v. Manuel, 108 Pac. 752; Allore v. Jewell, 94 U. S. 506,

24 L. Ed. 260; Harding v. Wheaton,
2 Mason, 378; Harding v. Handy,
11 Wheat. 103, 6 L. Ed. 429; Jones
v. Magruder, 87 Va. 360, 12 S. E.
792; Fishburn v. Ferguson, 84 Va.
87, 4 S. E. 575; Turner v. Utah,
etc., 10 Utah, 61, 37 Pac. 91;
Taylor v. Atwood, 47 Conn. 498;
Ashmead v. Reynolds, 134 Ind. 139,
38 N. E. 763, 39 Am. St. Rep.
238; Ikerd v. Beavers, 106 Ind.
483, 7 N. E. 326; Wilkie v. Sassen,
123 Ia. 421, 99 N. W. 124; Clark
v. Lopez, 75 Miss. 932, 23 South.
648;
Richard v. Donnert, 72 Cal.
207, 13 Pac. 584; Walling v.
Thomas, 133 Ala. 426, 31 South.
982.

Sec. 478. The rule as to notice.

The rule sustained by the better weight of authorities is, that where there has been no attempt to perform any part of the contract, and the time for performance has expired, the vendor may rescind without notice to the vendee of his intention to do so, and convey the land to another.11

Sec. 478a. Allegation of offer to restore consideration.

In an action for rescission and cancellation of a deed fraudulently obtained, an allegation in the petition that plaintiff is ready and willing to execute and deliver a deed for the property is sufficient offer to restore to bring him within the terms of the statute."2 12

Sec. 478b. Federal court power to cancel conveyance of Indian lands.

Where the Indian department, under the provisions of law, has made a reservation of tribal lands for a town site, and there are outstanding invalid conveyances which cloud the title of purchasers of lots, the United States may maintain a suit in equity for the cancellation of such instruments.13

11 Mosier v. Walter, 17 Okla. 305, 87 Pac. 877; Kennedy v. Embry, 72 Tex. 387, 10 S. W. 88. "Nor do we think notice of the disaffirmance of the contract was recessary to be pleaded, since under the facts in this case, no such notice was necessary to be given. Some of the authorities go to the extent of holding that no notice whatever is required to be given, other than the institution of the suit, and all unite in upholding the doctrine that where, in purchase and sale of real estate, and the vendee has so acted

as to create a reasonable belief on the part of the vendor that he has forsaken his contract, and no longer considers himself obligated by it, the vendor may rescind without notice to the vendee of his intention to do so." Herbert v. Stanford, 12 Ind. 503; Knappen v. Freeman, 47 Minn. 491, 50 N. W. 533, Kirby v. Harrison, 2 O. S. 326, 59 Am. Dec. 677.

12 Gedney v. Chappell, 110 Pac. (Okla.) 1,105.

13 United States v. Dowden, 194 Fed. 476.

Sec. 479. Form for petition for cancellation of deed.

Comes now the plaintiff, and, for his cause of action against the defendant, alleges and states:

1. That on the

day of

19-, plaintiff was the

owner in fee simple and possessed of the following lands, to-wit: (Here describe same.)

2. That on the

day of

19, the defendant procured and caused plaintiff to execute and deliver to him a deed of said real estate, conveying the same to the defendant in fee simple, by the fraudulent representation to the plaintiff that said deed of conveyance was a lease on said lands to the defendant for the term of years.

3. That the plaintiff, being an ignorant person and unable to read and write, and having known defendant for a long time, and believing him to be honest and of undoubted integrity, and relying on said representations of defendant, but for which he would not have executed said lease, executed and delivered the said deed to defendant, as and for a lease, and plaintiff believed it to be such lease, and accepted it for no other purpose whatever. WHEREFORE, the premises considered, plaintiff prays that said deed be ordered to be delivered up, canceled and held for naught, and for all proper relief.

Attorneys for Plaintiff.

Sec. 480. Another form petition for cancellation of deeds, mortgage and lease.

PETITION.

Comes now the plaintiff, and, for her cause of action herein, alleges and states:

1. That she is a citizen of the

Tribe of Indians, of the

blood; that she was duly enrolled as such citizen and blood upon the enrollment records by the commissioner to the Five Civilized Tribes, on the

day of

19-, as of

the age of years, and as such citizen she received an allotment of one hundred and sixty acres of land, described as follows, to-wit: (Here describe it.)

2. That while she was under the age of eighteen years, she made, executed, acknowledged and delivered the following instruments of conveyance to the following persons, all of which were made without any order, decree or authority of any court, and all of which affect the real estate hereinabove specifically described:

(a) One certain oil and gas lease to the defendants,

executed on or about the

and day of 19—, and recorded in the records of the register of deeds