Brothers v. Glaser

• Decision Date: 20 September 1907
• Citation: 91 P. 1040,19 Okla. 502,1907 OK 148
• Parties: STARK BROTHERS v. FRANK S. GLASER AND A. PFIFER.
• Court: Oklahoma Supreme Court

1907 OK 148

91 P. 1040

19 Okla. 502

STARK BROTHERS v. FRANK S. GLASER AND A. PFIFER.

Supreme Court of Oklahoma

Decided: September 20, 1907

Syllabus

¶0 1. JUDGMENT--Motion to Vacate--Time of Decision. Under the statutes of this territory, the district court has power to vacate or modify its own judgments or orders at or after the term at which said judgment or order was made. Where the allegations to vacate a judgment are based upon division 3 of section 562 of chapter 66 of Wilson's Statutes of Oklahoma 1903, for irregularity in obtaining a judgment or order, and where the motion to vacate the judgment is made at the same term at which the judgment was rendered, a reasonable notice being given to the adverse party or his attorney, the court has jurisdiction to hear the matter, although the motion is not decided until a subsequent term.

2. PUBLIC LANDS -- Homestead Entries -- Exemptions. Lands acquired under the provisions of the United States statute for the homesteading of public lands are not liable for the satisfaction of any debt contracted prior to the issuing of the patent therefor. The terms of this section exempt all lands obtained under the homestead law from liability for any of the debts of the entryman prior to the issuing of the patent, whether the lands are still held by him, or by a bona fide purchaser deriving title through him.

STATEMENT OF THE CASE.

This is an action commenced in the district court of Kay county, Oklahoma, in February, 1904, against the defendant Stark Brothers, plaintiffs in error here, to quiet title to the north half of the northwest quarter of section fifteen, township twenty-six north, of range two east of the Indian Meridian, in Kay county, Oklahoma Territory. Plaintiffs in their petition state that they are the owners, and in actual possession of said land; that the defendants claim an estate in said lands adverse to these plaintiffs, the nature of said adverse claim being that defendants claim a lien contract made with one Fred Bower, who was the original entryman of said land, and that said lien contract is of record, and is a cloud upon plaintiff's title. Plaintiffs ask that said cloud be removed. The defendants filed an answer and cross-petition, alleging that on the 21st day of August, 1894, Fred Bower was the owner of and in possession of the said land; that on said date the defendants sold to said Bower a bill of fruit trees for the sum of $ 450; that said Bower entered into a written contract with defendants, whereby said Bower gave to these defendants a lien on said land for the performance of said contract, and pleaded a copy of said contract, asking affirmative relief, that the said contract be declared a first lien. The contract is as follows:

"Form 9-y.

"THIS INDENTURE made and entered into on this 21 day of Aug. A. D. 1894, by and between Fred Bower, of K. County, (residence one mile N.) county of K and of Oklahoma Ter. party of the first part, and Stark Bros. of Louisiana, county of Pike and state of Missouri, parties of the second part:

"WITNESSETH: That the said party of the first part in consideration of said parties of the second part selling and shipping to him in the fall of 1894 to Cross, railroad freight charges prepaid, ( ) fruit trees, binds himself, his heirs, and assigns to carefully plant and care for said trees on his farm containing eighty acres, situated in K county, Oklahoma, and more particularly described as follows, to-wit: N. 1/2 N.W. section 15, township 26, range 2 E., boundaries [here give name of adjoining owners] D. Mooney to the west and Thomas Goozdanover on the east and and to pay to the order of said second parties, their heirs, or assigns, as evidence by first party's nine (9) promissory notes to be executed by said first party to second parties when the aforesaid trees are shipped, four hundred & fifty dollars ($ 450.00) due and payable as follows--all deferred payments and interest hereafter particularly specified to date from the first day of 189--: one-tenth when trees are shipped, one-tenth in one (1) year, one-tenth in two (2) years, one-tenth in three (3) years, one-tenth in four (4) years, one-tenth in five (5) years, one-tenth in six (6) years, and one-tenth in seven (7) years, one-tenth in eight (8) years and one-tenth in nine (9) years, with interest at the rate of six (6) per cent. per annum, and if the interest be not paid annually the same is to become as principal and bear the same rate of interest; to the payment of which sums as the same shall become due the party of the first part binds himself. his heirs, assigns and grantees of and to the aforesaid described lands; the right being reserved to the said party of the first part to pay the full amount remaining unpaid and not yet due, together with accrued interest, at any time he may elect within the period of nine years next after date last above written.

"And the said first party for the purpose of obtaining the aforesaid trees states that the above described real estate is free and clear of encumbrances, and that he claims the same with a perfect homestead.

"In witness whereof, we have hereunto set our hands and seals this the day and year first above written.

"FRED BOWER, (Seal.)

"STARK BROS. (Seal.)

"Witnessed by W. E. Morlan.

"Oklahoma Territory, County of K. ss.

"Be it remembered that on the 22nd day of Aug. 1894, personally appeared before me, Fred Bower, and acknowledged the execution of the above contract.

"In testimony whereof I have hereunto set my hand and affixed my official seal at my office in Cross, O. T., the day and year first above written.

"G. Q. BRANINE, Notary Public.

"[Seal] My term expires Dec. 8, 1897."

Endorsed on back: "Fred Bower, to Stark Bros. Fruit tree contract. Territory of Oklahoma, K County, ss. Filed for record this 21 day of Sept. A. D. 1894 at 12 o'clock M., recorded in Mis. Book 1, page 105. J. C. JAMISON, Register of Deeds. [Seal.]"

To this answer and cross-petition plaintiffs filed a reply. In said reply plaintiffs allege as a defense to said cross-petition that at the time of the execution of said contract Fred Bower, the maker thereof, was and now is a married man and the head of a family, and at the time he was living with his family on said land as a homestead, and at no time did the wife of said Bower sign said contract, or contract for said fruit trees in writing, or otherwise, or consent to the same, and for this reason the said contract created no lien against said homestead. For a further defense, plaintiffs allege that at the time of making said contract the title to said land was in the United States government; that the said Fred Bower, who was the maker of said contract, was a homestead entryman on said tract of land, and that no final proof had been made, and no patent issued, and for this reason the said land was not liable for the debt created by the purchase of said fruit trees as evidenced by said contract, and for a further reply and defense, plaintiffs allege a failure on the part of the defendant Stark Brothers to perform their part of the contract, and in said reply plaintiffs ask that said contract be declared by the court not to be a lien on said real estate. On September 7, 1904, plaintiffs filed a motion for judgment on the pleadings. On the 16th of February, 1905, said motion for judgment on the pleadings was overruled. On the 15th of April, 1905, defendants demurred to plaintiffs' reply. On the same day the court sustained the demurrer to said reply. On the 17th day of April, 1905, defendants filed a motion for judgment on the pleadings. On the 10th of July, 1905, the court sustains the motion of defendants for judgment on the pleadings, and renders judgment in favor of the defendants and declared the contract to be a first lien, and directs the issuing of an order of sale. On the 17th of July, 1905, the clerk of the district court of Kay county issued an order of sale. On the 14th of July, 1905, the plaintiffs filed a motion in the district court to set aside the judgment on pleadings, in favor of defendants, rendered on July 10, 1905, and on August 31, 1905, the court issued an order staying proceedings upon the judgment of July 10, 1905, and order of sale, upon the plaintiffs filing bond in the sum of $ 200. On August 31, 1905, plaintiffs filed bond. On the 12th of September, 1905, the court rendered judgment sustaining the motion to set aside the said judgment in favor of the defendants rendered on July 10, 1905, and re-instated the cause upon the docket of the court for trial, and to which ruling the defendants excepted, and asked for time to prepare and serve a case-made on appeal to the supreme court, and are granted 30 days in which to make and serve a case-made, ten days to suggest amendments, to be signed and settled on three days' notice in writing by either party. After which the plaintiffs made application for leave to file an amended reply, which leave was granted, to which the defendants excepted. The cause was then docketed for trial at the next regular term of this court. On the 12th of September, 1905, defendants in error here, plaintiffs below, filed their amended reply and answer to the cross-petition. On the 19th of September, 1905, defendants filed a motion to require the plaintiffs to separately state and number their defenses. On the 20th of March, 1906, this motion is by the court overruled. On the 21st of March, 1906, said cause comes on for hearing on the motion of plaintiffs for judgment on the pleadings, and the motion of defendants for judgment on the pleadings, at which time the following admission was made by the defendants, and the following judgment was rendered by the court:

"It is admitted by the defendants, for the purpose of the court passing on the motion of the plaintiffs for judgment on the pleadings, that at the time that Fred Bower, mentioned in defendants' cross-petition, executed the contract attached to said cross-petition, he was the...