Armstrong v. Phillips
| Decision Date | 03 December 1918 |
| Docket Number | 9458. |
| Citation | 181 P. 715,76 Okla. 192,1918 OK 692 |
| Parties | ARMSTRONG v. PHILLIPS et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied June 24, 1919.
Syllabus by the Court.
Section 1156, Rev. Laws 1910, provides that "every instrument purporting to be an absolute or qualified conveyance of real estate or any interest therein, but intended to be defeasible or as security for the payment of money, shall be deemed a mortgage and must be recorded and foreclosed as such."
Section 1158, Rev. Laws 1910, provides that "any person purchasing or taking any security against real estate in good faith and without record notice from one holding under an instrument purporting to be a conveyance but intended as security for the payment of money, and which instrument has been duly recorded without any other instrument explanatory thereof, shall be protected to the extent of the purchase price paid or actual outlay occasioned, with lawful interest against all persons except those in actual possession at the time of such purchase or outlay."
Record examined, and held that the trial court erred in sustaining the demurrer to plaintiff's evidence.
Error from District Court, Washington County; R. B. Boone, Judge.
Action by Minnie B. Armstrong against Frank Phillips and the Lewcinda Oil Company. Demurrer to plaintiff's evidence sustained, and judgment for defendants, and plaintiff brings error. Reversed and remanded, with directions.
Hainer Burns & Toney, of Oklahoma City, and Norman Barker, of Bartlesville, for plaintiff in error.
John H Kane and Rowland & Talbott all of Bartlesville, for defendants in error.
This was an action commenced by the plaintiff in error, plaintiff below, against the defendants in error, defendants below, for the purpose of recovering possession of certain real estate and canceling several instruments of writing which it was alleged clouded the title of the plaintiff.
Hereafter for convenience the parties will be called "plaintiff" and "defendants," respectively, as they appeared in the trial court. After the plaintiff had introduced her evidence and rested the court sustained a demurrer thereto and entered judgment for the defendant, so that the only error assigned for review is the action of the trial court in sustaining defendants' demurrer to plaintiff's evidence. The facts necessary for the consideration of this question may be briefly summarized as follows:
On the 8th day of June, 1908, the plaintiff executed a deed to the land in controversy to one V. J. Knisley, which deed was subsequently canceled by a decree of court upon the ground of fraud. It seems that immediately after the execution of this deed, and before the cancellation thereof, Knisley executed a mortgage on said land to secure the payment of a loan of money made to him by the Citizens' Bank & Trust Company of Bartlesville, Okl. In the course of the action brought by the plaintiff against Knisley for the cancellation of the deed to him, the Citizens' Bank & Trust Company filed its petition in intervention, wherein it prayed for the foreclosure of its mortgage, but no judgment or decree was taken by said Citizens' Bank & Trust Company on said petition in intervention. Thereafter the defendant Frank Phillips, who was the president of the Citizens' Bank & Trust Company, threatened to foreclose said mortgage, and informed said plaintiff that unless she would immediately pay the same she would lose her land; that, being unable to pay said incumbrance, including attorney's fees and court costs, the plaintiff executed an instrument in writing, in the form of a deed purporting to convey said land to her grandfather, Arthur Armstrong, but intended as security for the payment of money furnished by the grantee for the purpose of paying off the incumbrance to the bank. It was alleged that this deed, which under the statute (section 1156, R. L 1910) must be deemed to be a mortgage, was absolutely null and void for the reason that at the time the same was executed by the plaintiff she was a minor under the age of 18 years, and was enrolled as a Cherokee Indian of the degree of three-eighths blood; that said deed was made without the consent, supervision, authority, or order of the county court of Washington county, in which county the plaintiff was then a resident; that thereafter, to wit, on the 19th day of June 1915, the said Arthur Armstrong purported to convey the above-described land by warranty deed to said defendant Frank Phillips, and that said deed was void for the reason that said Arthur Armstrong had no right, title, or interest in and to said real estate, or any part thereof to convey to the said Frank Phillips, and that Frank Phillips...
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