Bailey v. Willoughby

• Decision Date: 14 May 1912
• Docket Number: Case Number: 1666
• Citation: 33 Okla. 194,124 P. 955,1912 OK 320
• Parties: BAILEY v. WILLOUGHBY et al.
• Court: Oklahoma Supreme Court

1912 OK 320

124 P. 955

33 Okla. 194

BAILEY v. WILLOUGHBY et al.

Case Number: 1666

Supreme Court of Oklahoma

Decided: May 14, 1912

Syllabus

¶0 JUDGMENT--Notwithstanding Verdict--Garnishment of Mortgaged Property--Tender of Amount Due. Where a summons in garnishment issued upon a judgment against R., and was served upon B., who answered, in effect, that he was not liable in garnishment, and where issue was joined thereon pursuant to Comp. Laws 1909, sec. 5718, and where the case turned upon the question of whether three bills of sale of even date theretofore executed by R. to J. and duly filed for record, were intended to evidence an absolute sale of six elevators from R. to J. which he had leased and of which B. was in possession as agent of the lessee, were intended to evidence a sale or were each in effect, a mortgage, and the jury found that such they were, and where it further appeared that before the service of the summons in garnishment the conditions prescribed by Comp. Laws 1909, sec. 4432, were not observed, held, that defendant's motion for judgment non obstante on that ground should have been sustained.

Error from District Court, Oklahoma County; Geo. W. Clark, Judge.

Action by J. W. Willoughby, receiver, against J. C. Robb. Judgment for plaintiff, writ of garnishment issued against J. R. Bailey and Bailey brings error. Reversed and rendered.

C. J. Wrightsman, C. E. Bush, and Victor O. Johnson, for plaintiff in error.

Flynn, Ames & Chambers, for defendants in error.

TURNER, C. J.

¶1 On January 7, 1905, J.A. Willoughby, as receiver of the Capitol National Bank of Guthrie, sued J. C. Robb, defendant in error, in the district court of Oklahoma county, and on January 18, 1905, recovered judgment against him by confession for $ 30,000. On May 3, 1905, execution issued thereon, and an affidavit of garnishment was filed, alleging, among other things, that said execution had issued, and had not been returned. On May 7, 1905, J. R. Bailey, plaintiff in error, was served with summons, and on the 9th answered, in effect that he was not liable to garnishment, upon which issue was joined as provided by Comp. Laws 1009, sec. 5718. By this proceeding it was sought to reach six elevators which it appears Robb had mortgaged to one J. Rosenbaum as security for a loan of $ 15,000, and which he had leased to J. Rosenbaum Grain Company, which had employed Bailey and placed him in charge. Neither the grain company nor Rosenbaum were parties, and Robb was not served with garnishment summons. The case was made to turn upon the question of whether the three bills of sale of even date, theretofore executed by Robb to Rosenbaum, and duly filed for record and known as Exhibits C, D, and E, reciting a consideration of $ 17,400, were intended to evidence an absolute sale of the six elevators therein described, or whether they were given as security for a loan, and were in fact a mortgage or mortgages. There was trial to a jury, which, in effect, found for plaintiff on this issue, and that the bills of sale were mortgages. Whereupon the court rendered judgment for plaintiff to that effect, and ordered that he take possession and sell the mortgaged property, and out of the proceeds first pay the mortgage debt, and turn the balance over to plaintiff in satisfaction of his judgment. After motion for a new trial filed and overruled, defendant, as garnishee, brings the case here.

¶2 It is contended that the court erred in overruling defendant's motion for judgment non obstante. Such was error. This proceeding was prosecuted upon the theory that, if plaintiff proved each of the three bills of sale in question to be a mortgage, he would be entitled to prevail and subject Robb's equity in the property to the payment of his judgment. As evidencing this theory, the bills of sale being, in terms, in effect the same, the court charged:

"The court instructs you that this bill of sale on its face indicates an absolute sale and transfer of all the right, title, and interest in this property from Mr. Robb to Mr. Rosenbaum, and, if there were no explanation of the transaction, it would be so construed, and is construed, outside of any explanation that has been made concerning it, as an absolute sale and transfer of all the interests of the defendant Robb to Mr. Rosenbaum, but the court further instructs you that, notwithstanding the fact it may have been upon its face evidence of an absolute sale, yet the mere form of the instrument of conveyance is not conclusive by any means as to the nature of the transaction, and if it was really intended as a security for the payment of a debt, rather than an absolute sale, may be proven upon the trial, and, if the evidence is satisfactory to the jury that that was the nature of the transaction, then the verdict of the jury in this case should be that the transaction was in fact a loan, with security taken in the form of a bill of sale, and not an absolute sale of the property. That is the only question for you to pass upon."

And the jury found:

"We, the jury drawn, impaneled, and sworn in the above- entitled cause, do upon our oaths find for the plaintiff and against the garnishee, J. R. Bailey, and that the three bills of sale, copies of which were introduced in evidence as plaintiff's Exhibits C, D, and E, were intended at the date of their execution as mortgages securing the repayment of a loan of $ 15,000, within three years from their date, by the defendant J. C. Robb to one J. Rosenbaum, and were not intended as evidence of an absolute sale of said property by the said defendant J. C. Robb to said J. Rosenbaum, and that at the date of the service of the garnishee summons herein said property was in the possession and under the control of the garnishee, J. R. Bailey."

And the judgment recited:

"That the three bills of sale made by said J. C. Robb to J. Rosenbaum on the 17th day of April, 1904, was not a bona fide sale of said personal property described in said bills of sale but was a mortgage only,

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