Arnold v. Joines

• Decision Date: 27 April 1915
• Docket Number: Case Number: 4370
• Citation: Arnold v. Joines, 150 P. 130, 1915 OK 198, 50 Okla. 4 (Okla. 1915)
• Parties: ARNOLD v. JOINES.
• Court: Oklahoma Supreme Court

1915 OK 198

150 P. 130

50 Okla. 4

ARNOLD v. JOINES.

Case Number: 4370

Supreme Court of Oklahoma

Decided: April 27, 1915

Syllabus

¶0 1. JUDICIAL SALES--Rights of Purchasers--Vacating Judgment. A void judgment may be set aside at any time and, when a judgment is set aside for want of jurisdiction, any subsequent proceedings, including an order of sale, the confirmation of sale, and the sheriff's deed issued thereunder, are absolutely void.

2. JUDGMENT--Process to Sustain--Void Judgment. A sheriff's deed issued under an order of attachment obtained by service of summons by publication, the judgment being afterwards set aside by the court for the reason that the defendant was at the time of service a resident of the state, living upon the land attached, as a homestead, is absolutely void.

3. JUDICIAL SALES--Rights of Purchasers--Reversal of Judgment--Statute. Section 5176, Rev. Laws 1910, which provides that if any judgment or judgments, in satisfaction of which any lands or tenements are sold, shall at any time thereafter be reversed, such reversal shall not defeat or affect the title of the purchaser or purchasers, is not applicable in a case where the judgment creditor purchases the land at the sheriff's sale, for the reason that this section has application solely to bona fide purchasers, who are not parties to the erroneous judgment, nor responsible therefor.

4. JUDGMENT--Persons Concluded--Purchasers at Sale. Purchasers of property at a judicial sale thereof, and all persons claiming under such purchasers at such judicial sale, are to be recognized as privies to the judgment authorizing the sale, and therefore all such persons are concluded by the judgment.

5. COVENANTS--Statute--"Covenant Running With the Land." In this state a warranty deed made in substantial compliance with the statutes, and the form of warranty deed provided for therein, shall be and is deemed a covenant on the part of the grantor that, at the time of making the deed, he is legally seised of an indefeasible estate in fee simple of the premises, and has good right and full power to convey the same, and that the same are clear of all incumbrances and liens, and that he warrants to the grantee, his heirs and assigns, the quiet and peaceable possession thereof, and will defend the title thereto against all persons who may claim the same, through title or other claim acquired prior thereto, and the covenants of warranty in such deed run with the land, and by this is meant a covenant which accompanies the conveyance of the land from one purchaser to another, through each successive link of the chain of title.

6. COVENANTS--Action for Breach--Notice--Measure of Damages. Where the judgment creditor purchases the land at the sheriff's sale, and conveys the same by warranty deed, and the title fails because of want or lack of jurisdiction of the court wherein the sheriff's deed was issued, the giving of notice to the grantor is not a condition precedent to maintaining an action for a breach of the warranty, and the measure of damages in such case, for breach of the warranty, is the consideration paid for the land, with interest.

Error from District Court, Carter County; S. H. Russell, Judge.

Action by U.S. Joines against J. M. Arnold, to recover for breach of warranty in a deed. Judgment for plaintiff, and defendant brings error. Affirmed, and rehearing denied.

Sigler & Howard, for plaintiff in error.

Thomas Norman and Samuel H. Butler, for defendant in error.

ROBBERTS, C.

¶1 This action was commenced in the district court of Carter county by U.S. Joines, defendant in error herein, for a breach of warranty of title to real estate, upon the following state of facts:

¶2 One Clay Blackwell was the owner of certain real estate in the city of Ardmore. On the 26th day of February, 1909, J.M. Arnold, plaintiff in error herein, recovered a judgment against said Blackwell, upon an order of attachment issued out of said court. Service was had by publication. The order of attachment was levied upon the property described in the deeds involved herein, and sustained by the court, and judgment rendered for the amount claimed, with the further order directing the sale of the attached property, which was accordingly done, the sale confirmed, and deed issued by the sheriff to the purchaser, on the 14th day of April, 1909, who was J. M. Arnold, plaintiff in that case, and plaintiff in error herein.On the 6th day of May, Arnold sold and conveyed said real estate by warranty deed to one J. A. Skipworth.

¶3 The habendum in said deed is as follows:

"And said J. M. Arnold for his heirs, executors, or administrators does hereby covenant, promise, and agree to and with said party of the second part that at the delivery of these presents he is lawfully seised in his own right of an absolute and indefeasible estate of inheritance, in fee simple, of, in, and to all and singular the above granted and described premises, with the appurtenances; that the same are free, clear, discharged, and unincumbered of and from all former grants, titles, charges, judgments, taxes, assessments, and incumbrances, of what nature and kind soever, and that he will warrant and forever defend the same unto said party of the first part, their heirs, and all and every person whomsoever lawfully claiming or so claim the same."

¶4 On the 30th day of March, 1910, Skipworth sold and conveyed said property to U.S. Joines, the defendant in error herein, by warranty deed, in the same language used in the deed from Arnold to Skipworth, hereinabove set out.

¶5 On the 26th day of May, 1910, upon the motion of Blackwell, defendant in the first mentioned case, the court set aside said judgment and all actions and proceedings therein, upon the ground that the judgment was void, for want of service. The order of the court in that behalf is as follows:

"ORDER TO SET ASIDE JUDGMENT.

"This day came on to be heard the motion of the defendant to set aside and vacate the judgment rendered against him in this cause, on the 6th day of February, 1909, because he had not been regularly served and had entered no appearance in this cause. That he had at all times been a resident of this state, which was known to the plaintiff, and because the property attached and sold was his homestead and was not described as the law requires in the summons by publication; and the court. being fully advised in the premises, and after hearing the testimony and the argument of counsel, is of the opinion that said motion should be granted. It is therefore ordered, adjudged, and decreed by the court that said judgment be and the same is hereby set aside and held for naught and void, and that all proceedings had thereunder are void, and that the sale made of lot No. 1 in block No. 401A, of the city of Ardmore, the attached property in said cause, was void and is hereby vacated and set aside; and that said cause be reinstated on the docket, for such proceedings as may hereafter be had by this court."

¶6 After the order setting aside said judgment, Clay Blackwell, the original judgment debtor, threatened and was about to bring an action against U.S. Joines, the last grantee, defendant in error herein, to set aside his deed from Skipworth, and after due inquiry, and being fully informed of the facts, and being advised by an attorney of the effect of the order of the court setting aside and canceling the sheriff's deed, the said U.S. Joines, defendant in error, surrendered his claim to said premises to the said Clay Blackwell, and conveyed the same to him by quitclaim deed, without consideration, and therefore demanded from the plaintiff in error, Arnold, the sum of $ 125, the amount paid by defendant in error to Skipworth for said property, after deducting the sum of $ 75, being the amount paid to him by Skipworth, his immediate grantor, for and upon the breach of his said warranty. Payment was refused by plaintiff in error, and defendant in error brought suit to recover the sum of $ 125, being the amount of balance of the purchase price paid by him to Skipworth.

¶7 A demurrer to the petition was filed and overruled by the court, to which exceptions were saved, and which will be considered hereafter. Thereupon defendant answered as follows:

"Comes now J. M. Arnold and for his answer to the plaintiff's petition herein filed says:

"(1) He denies each and every allegation in the plaintiff's petition.

"(2) He says that at the time he sold the property to Skipworth, as stated in the plaintiff's petition, the said Clay Blackwell was in possession of said property by and through his tenants, and that said Clay Blackwell yielded possession to the said Skipworth, who went into the possession of said property and held same until he voluntarily surrendered same to Clay Blackwell; that the order made by the court setting aside the judgment did not in any way affect the title of plaintiff, who was then the owner of, and in possession of, said property, and that said order was an interlocutory order, and those things which it recited were not necessary to be recited therein, and were not binding on the plaintiff and are not binding on this defendant.

"(3) That the plaintiff recovered a judgment against the said Clay Blackwell foreclosing his attachment, and that the sheriff, under an order of said court issued, duly advertised said property for sale, that the defendant purchased said property at a sheriff's sale. That said sale was duly confirmed by the court, and that thereafter said property was sold by the defendant to J. A. Skipworth and by Skipworth to Joines, as stated in plaintiff's petition. That both Skipworth and Joines were innocent purchasers of said lot. That they were not parties to the suit of J. M. Arnold against Clay Blackwell and knew nothing of the defects of said judgment, if any existed. That at the time said judgment was vacated, as stated in said order, the plaintiff was the owner of, and in possession of, the property

...