Bailey v. State
| Decision Date | 11 February 1919 |
| Docket Number | 8659,8722. |
| Citation | 179 P. 615,72 Okla. 203,1919 OK 49 |
| Parties | BAILEY et al. v. STATE. STATE v. BAILEY et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied April 1, 1919.
Syllabus by the Court.
Where a mortgagor successively sells portions of mortgaged premises by general warranty deed, upon foreclosure of the mortgage the portions will be ordered sold in the inverse order of the several conveyances.
The mere purchase of equity of redemption in mortgaged land does not make such purchaser liable personally for the payment of the mortgage debt.
No personal obligation rests upon the purchaser of mortgaged land to pay the mortgage debt, unless by agreement he assumes its payment, or by retaining the amount out of the purchase price, or otherwise, he makes the debt his own.
Where the bank commissioner takes possession of an insolvent state bank, he is not a purchaser of the assets for value without notice, but takes the notes subject to all claims and defenses that might have been interposed against the bank had it continued under its corporate management.
Error from District Court, Caddo County; Will Linn, Judge.
Action by the State of Oklahoma against B. S. Bailey, and others with cross-petitions by defendant M. F. Menefee, and by defendant Bailey. Judgment for defendant Menefee, and the State and defendants Bailey and others bring error. Affirmed in part, and remanded, with directions.
C. H. Carswell, of Anadarko, for plaintiffs in error Bailey.
A. J. Morris, of Anadarko, for defendant in error Menefee.
S. P. Freeling, Atty. Gen., J. I. Howard, Asst. Atty. Gen., and Dyke Ballinger, of Anadarko, for the State.
This action was brought by the state on a promissory note executed by defendant Bailey, payable to the Anadarko State Bank, and to foreclose a mortgage on 40 acres of land executed to secure the payment of the note. Bailey purchased the 40 acres of land described in the mortgage from O. M. Hite, and executed the note payable to the bank for the purchase price. Prior to this Hite executed a mortgage to the Pittsburg Investment Company covering this 40 acres and another tract of 80 acres. The deed from Hite to Bailey was a general warranty, without reference to this prior mortgage. Hite afterward conveyed the 80-acre tract, and at the time of the trial it appears this tract was held by defendant R. C. Menefee. The Anadarko State Bank became insolvent, and its assets, including the note and mortgage executed by Bailey, were taken over by the banking department of the state. Defendant M. F. Menefee became the assignee of the investment company mortgage, and by cross-petition prayed a foreclosure of this mortgage against the 40-acre tract conveyed to Bailey. Defendant Bailey admitted the execution of the note and mortgage to the bank, and the execution of the investment company mortgage by Hite, his grantor, but denied that he assumed payment of any portion of the investment company mortgage. By cross-petition he asked that the 80-acre tract be first subjected to satisfaction of that mortgage. As a defense against the state he alleged certain payments on his note, and in addition to these payments asked to be given credit for the full amount due under the investment company mortgage. These credits amounted to more than the amount due on the note held by the state, and he asked for judgment against the state for the excess.
The trial court found that Bailey had made payments on his note amounting to $2,325. The judgment rendered gave him credit for these payments, and also gave him credit for the full amount due M. F. Menefee under the investment company mortgage. This was $200 in excess of the amount due on his note, and judgment was rendered in his favor against the state for that sum. Bailey's prayer to first subject the...
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