Bell v. Trosper
| Decision Date | 01 February 1938 |
| Docket Number | Case Number: 27827 |
| Citation | 1938 OK 60,77 P.2d 544,182 Okla. 316 |
| Parties | BELL v. TROSPER |
| Court | Oklahoma Supreme Court |
¶0 1. SPECIFIC PERFORMANCE - Action by Purchaser to Enforce Contract for Sale of Realty - Right of Defendant Under Contract to Show He Had Paid Taxes and Special Assessments to Protect Title Though Plaintiff Should Have Paid Same.
In an action in equity for specific performance of a contract for sale of real property wherein it is provided that the property is to be conveyed by the owner when certain payments shall have been made, and that in the meantime the other party shall insure the property for the benefit of the seller and maintain such insurance during the existence of the contract, and pay all taxes and assessments lawfully assessed against the property, and it appears that the purchaser has not paid such taxes and assessments, it is proper for the other party to show that he has paid such taxes and assessments or has taken up or caused to be taken up tax sale certificates against the property in order to protect the title so as to enable him to convey good title upon full payment by the other party.
2. SAME - Defendant's Right to Reimbursement Where Assessments not Shown to Be Invalid.
The mere statement that such assessments or a part thereof were not valid assessments against such property, without any showing of any fact or state of facts rendering such assessments invalid, is not sufficient to deprive the seller of the right to be reimbursed for the payment thereof.
3. SAME - Jurisdiction of Court to Render Judgment Against Purchaser for Amount of Taxes and Assessments Paid by Vendor and Declare Same a Lien on Property and Order Sale on Execution in Satisfaction.
Though no personal judgment may be rendered against the owner of property for taxes on special assessments levied against real property, a court of equity in an action for specific performance of a contract for sale of such property may render judgment against a purchaser under such contract who has agreed therein to pay such taxes and assessments, declare the same a lien on the property, and order the property sold on execution in case of failure to pay the amount thereof.
4. EXECUTION - Sale of Realty to Be With Appraisement Unless Waived.
The sale of real property under execution must be with appraisement unless appraisement is waived.
Appeal from District Court, Oklahoma County; G.H. Giddings, Jr., Judge.
Action by Ronnie Bell against Clarence E. Trosper. Judgment for defendant, and plaintiff appeals. Modified and affirmed.
Gasper Edwards, for plaintiff in error.
I.L. Harris and Ted R. Elliott, for defendant in error.
¶1 Plaintiff in error commenced this action in the district court of Oklahoma county on November 12, 1935, alleging in substance that on July 1, 1924, she entered into a written agreement with defendant, Clarence E. Trosper, for the purchase by her from defendant of a lot in Oklahoma City; that by the terms of said contract she was to pay for said lots the sum of $668.38, payable $50 in cash and $10 per month, beginning September 1, 1924, with "interest at the rate of 8 per cent. per annum, payable semi-annually from date until paid, interest to become as principal and bear the same rate of interest."
¶2 She alleged, in substance, full compliance with the contract and full payment of all money due defendant thereunder and demand for conveyance of the lot as provided in said contract and refusal of defendant to convey. She prayed for judgment for specific performance.
¶3 Plaintiff was referred to in said contract as second party and defendant was referred to as first party.
¶4 The contract, among other things, provided:
¶5 The other provisions concerning possession of the property, the effect of failure to pay or insure, are not here in controversy.
¶6 Defendant answered, admitting the execution of the contract as alleged. He denied full payment as alleged by plaintiff and affirmatively alleged that there was an unpaid balance on the contract in the sum of $286.78. He offered, on payment of said sum, to convey as provided in said contract.
¶7 By way of cross-petition he alleged a balance due under said contract as of July 1, 1935, of $82.80, on the principal, and $3.31 interest, and that no payment had been made by plaintiff since June 1, 1931; that plaintiff had failed to pay the taxes on the property as she had agreed to do in her contract, and that defendant had been compelled to purchase tax sale certificates on said property in the total sum of $191.42, and again tendered a deed of general warranty upon condition that plaintiff pay said balance due and the taxes and assessments paid by defendant.
¶8 Plaintiff by reply alleged that all payments legally due had been made, and that a part of the tax sale certificates alleged to have been taken up by defendant were for certain alleged void paving tax assessments, and that her contract called for payment by her of only such taxes and assessments as were legally levied on said property.
¶9 The controversy is principally over the payment of paving tax assessments.
¶10 At the trial the evidence was to the effect that the only payments made by plaintiff after the initial or down payment of $50 were as follows: $30 in 1924, $70 in 1925, $65 in 1926, $115 in 1927, $95 in 1928, $105 in 1929, $93 in 1930, $10 in 1931, $95 in 1932, $49 in 1933, and $20 in 1934, making a total of $887 paid on principal and interest.
¶11 The evidence does not show in which months the several payments were made. Defendant explained his method of computing interest, and there is no claim that the proper method was not used. According to defendant's evidence the amount remaining unpaid on the principal contract, exclusive of the claim for taxes, etc., paid by him, was $92.57;...
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