Bierschenk v. Klein

• Decision Date: 11 October 1938
• Docket Number: 27749.
• Citation: 83 P.2d 371,183 Okla. 494,1938 OK 497
• Parties: BIERSCHENK v. KLEIN.
• Court: Oklahoma Supreme Court

83 P.2d 371

183 Okla. 494, 1938 OK 497

BIERSCHENK v. KLEIN.

No. 27749.

Supreme Court of Oklahoma

October 11, 1938

Syllabus by the Court.

1. Lands inherited in fee by a judgment debtor, and not exempt by law, may be sold, after exhaustion of his goods and chattels, on ordinary execution, subject to all lesser estates and liens, to satisfy the judgment. Secs. 440, 445 O.S.1931, 12 Okl.St.Ann. §§ 733, 751.

2. Mere failure of the court clerk to enter in the formal judgment the items of cost as taxed by him does not constitute such an irregularity or variance between the judgment and the execution containing said items as will render sale on the writ voidable. Sec. 524, O.S.1931, 12 Okl.St.Ann. § 933.

Appeal from District Court, Oklahoma County; Sam Hooker, Judge.

Action on note by Ed G. Klein, doing business as Klein Oil Company against S. F. Bierschenk, wherein a judgment was entered in favor of the plaintiff. From an order confirming the sheriff's sale on execution, the defendant appeals.

Affirmed.

Tomerlin Chandler, Shelton & Fowler and John Swinford, all of Oklahoma City, for plaintiff in error.

Priest & Belisle, of Oklahoma City, for defendant in error.

GIBSON Justice.

This is an appeal by a judgment debtor from an order of the district court of Oklahoma county confirming sale of real estate on execution.

The defendant in error, hereafter called plaintiff, recovered a judgment in said court against plaintiff in error, hereafter referred to as defendant, on two promissory notes. Execution was issued and returned no property found. A second execution was issued and levied upon the two-ninths undivided interest of the defendant in a quarter section of land in Oklahoma county inherited by defendant from his father. Appraisers duly appointed placed the value of the two-ninths interest at $2,000, subject to mortgage liens of record in the amount of $12,000, and subject to the life estate of the wife of the deceased, and to oil and gas leases and mineral deeds of record; and the appraisers then fixed the value of the defendant's interest "at the sum of naught." At sheriff's sale plaintiff bid in the interest of defendant for $1,050.

Upon hearing on motion to confirm defendant objected to confirmation on the ground that his individual interest in the land was merely an equity since it was subject to the liens and estates mentioned in the appraisement, and was therefore not subject to sale upon general execution. It is urged in this connection that defendant's interest was subject to ascertainment and sale by receiver to satisfy the judgment only in the manner provided by the statutes governing proceedings in aid of execution, particularly section 478, O.S.1931, 12 Okl.St.Ann. § 841, and sections 486-490, O.S.1931, 12 Okl.St.Ann.§§ 852-856.

Section 478, 12 Okl.St.Ann. § 841, provides that in the absence of sufficient personal or real property of the debtor to satisfy the judgment, "any equitable interest which he may have in real estate, as mortgagor, mortgagee, or otherwise * * shall be subject to the payment of such judgment, by action or as hereinafter prescribed." Section 487, 12 Okl.St.Ann. § 853, contains the provisions most pertinent to defendant's contention. The section reads as follows: "If it shall appear that the judgment debtor has any equitable interest in real estate in the county in which proceedings are had, as mortgagor or mortgagee, or otherwise, and the interest of said debtor can be ascertained as between himself and the person or persons holding the legal estate, or the person or persons having a lien on or interest in the same, without controversy as to the interest of such person or persons holding such legal estate or interest therein, or lien on the same, the receiver may be ordered to sell and convey such real estate, or the debtor's interest therein. Such sale shall be conducted in all respects in the same manner as is provided by this code for the sale of real estate upon execution; and the proceedings of the sale shall, before the execution of the deed, be approved by the court in which the judgment was rendered, or the transcript has been filed as aforesaid, as in case of sale upon execution."

Conceding that the judgment creditor should proceed in aid of execution according to the foregoing statutes, or by action in equity, to subject equitable interests of the debtor to the payment of the judgment, the proceeding was unnecessary in the instant case. The property levied upon was not such an interest, but was a legal estate in fee simple and within the definition of "lands [and] tenements * * * not exempt by law" and subject to general execution and sale as provided in section 440, O.S.1931, 12 Okl.St.Ann. § 733, subject to all liens thereon as permitted by section 445, O.S.1931, 12 Okl.St.Ann. § 751. The last cited section provides that where no goods are found the officer must so endorse the execution, "and forthwith levy the writ of execution upon the lands and tenements of the debtor, which may be liable to satisfy the judgment; and if any of the lands and tenements of the debtor which may be liable shall be incumbered by mortgage or any other lien or liens such lands and tenements may be levied upon and appraised and sold, subject to such lien or liens, which shall be stated in the appraisement." The sheriff proceeded according to the statute.

Defendant inherited the legal title in fee subject to the aforesaid liens and estates.

No intangible equity was present. A mortgage in this State transfers no legal title or estate but merely creates a lien against the property. See ...