Burton v. Mee
| Decision Date | 20 October 1931 |
| Docket Number | Case Number: 20492 |
| Citation | 4 P.2d 33,1931 OK 615,152 Okla. 220 |
| Parties | BURTON et al. v. MEE. |
| Court | Oklahoma Supreme Court |
¶0 1. Execution--Confirmation of Sale of Real Estate--Court not Required to Look Into Regularity of Judgment.
On motion to confirm sale of real estate made under execution, the court should confine itself to the regularity of the proceedings on the sale, and is not required to go behind the execution and look into the regularity of the judgment.
2. Judicial Sales--Notice to Purchasers as to Title Papers--Knowledge of Facts Putting Purchaser Upon Inquiry.
A purchaser of land at a judicial sale must look to the title papers under which he purchases, and is chargeable with notice of the facts appearing upon their face; also a knowledge of all the facts suggested therein, and which he might, with the exercise of reasonable prudence and diligence, have ascertained.
3. Mortgages--Foreclosure Where Appraisement Waived.
Where a mortgage provides appraisement waived, in case of foreclosure and sale of the premises under said mortgage, the premises must be sold without appraisement.
4. Evidence -- Presumption That Official Acts Are Regular--Burden of Proof That Notice of Sale of Realty on Execution Was not Published in Proper Newspaper.
The general presumption is that public officers perform their official duty and that their official acts are regular; held, where sale had under section 708, C. O. S. 1921, as amended by chap. 117, Sess. Laws 1927, the return of officer shows publication of notice of sale in newspaper in the county where lands situated, the burden is on the attacking party to show irregularity of the sale and that there was a newspaper published in the city or township wherein the lands were situated.
5. Appeal and Error--Discretion of Court as to Confirmation of Sheriff's Sale.
The ruling of the trial court on a motion for confirmation of sheriff's sale of real estate or objection thereto, are questions addressed to the sound discretion of the court, and unless it appears that there has been an abuse of such discretion the ruling of the trial court will not be reversed on appeal.
Appeal from District Court, Oklahoma County; George W. Clark, Judge.
Action by Robert Mee against Henry Burton, Harlan T. Deupree, and Erwin & Erwin, a partnership. On motions and objections of defendants to confirmation of sheriff's sale of real estate under foreclosure. Judgment for plaintiff, from which defendants appeal. Judgment of the trial court confirming sale affirmed.
Harlan T. Deupree and Erwin & Erwin, for plaintiffs in error.
H. A. Wilkinson and M. G. Meister, for defendant in error.
¶1 This action was commenced in the district court of Oklahoma county by defendant in error, Robert Mee, against the plaintiffs in error, Henry Burton, Harlan T. Deupree, and Erwin & Erwin, a partnership composed of P. D. Erwin and Walter C. Erwin, and against other defendants not appearing as plaintiffs in error, to wit, H. M. Burton, Fredonia Burton, and Jess Burton, for debt and foreclosure of real estate mortgage.
¶2 The parties will be designated herein as they appeared in the trial court.
¶3 The plaintiff's petition contained six separate counts, and based upon notes and real estate mortgage on the lands therein described, and prayed for judgment for the debt and foreclosure of the real estate mortgage, and alleged that said mortgage contained a waiver of appraisement.
¶4 Demurrer was filed by Harlan T. Deupree, H. M. Burton, Fredonia Burton, Jess Burton, Henry Burton, and Erwin & Erwin, a partnership composed of P. D. Erwin and Walter C. Erwin; however, the case-made is silent as to a ruling upon said demurrers.
¶5 Defendants H. M. Burton, Fredonia Burton, and Jesse Burton filed answer by way of general denial.
¶6 Defendant Harlan T. Deupree filed answer by way of general denial, and joined therein cross-petition against plaintiff and each of the other defendants, setting up a 3/16th interest in the oil, gas and mineral rights and royalty in and under said real estate, and prayed that if a judgment be obtained ordering the sale of said real estate, that same be first offered for sale subject to and without the royalty interest of defendant.
¶7 Defendants Henry Burton and Erwin & Erwin, a partnership, filed joint answer by way of general denial and joined therein cross-petition setting up certain oil, gas and other mineral rights in and under said lands, as well as a judgment lien on said lands; and alleged they were entitled to a judgment in marshaling assets whereby said premises shall first be offered for sale subject to their lien and right; prayed for foreclosure of their lien. Replies were filed by plaintiff to the cross-petitions.
¶8 A trial of said cause was had, at which all parties thereto appeared, and judgment was entered for plaintiff for his debt and foreclosure of his mortgage, and adjudging said debt was a first mortgage lien on said lands, except "the royalty interest of Frank O. Ringer in said quarter section," and that defendants Henry Burton and Erwin & Erwin, a partnership, have a judgment lien against said premises and same is a second lien.
¶9 That defendant Harlan T. Deupree is owner of 3/16ths interest in the mineral rights, superior to the rights of the other defendants, subject only to the judgment lien of defendants Henry Burton and Erwin & Erwin.
¶10 That defendants Erwin & Erwin, a partnership, are the owners of 3/16ths mineral rights, superior to the rights of all other defendants, subject to the judgment jointly in favor of them and Henry Burton.
¶11 That all parties consent that the lands shall first be offered for sale to satisfy the money judgments set forth in the decree, subject to the mineral rights, but that if the highest bid is not then sufficient to satisfy those judgments in full, that thereupon the sheriff shall withdraw his offer to sell subject to those rights and shall sell the whole fee, subject only to an outstanding 1/4th interest in the mineral rights, which is a prior grant and superior to the rights of all parties to the suit.
¶12 Further ordered that should defendant fail to pay the judgment of plaintiff for a term of six months from the date of the judgment, upon filing of a praecipe by plaintiff, that execution and order of sale issue, directed to the sheriff, commanding him to levy upon, advertise and sell, without appraisement, to the highest bidder for cash, the said lands; that he first offer said premises subject to the outstanding mineral grants, and should said premises fail to bring the amount of plaintiff's judgment, and the amount of the second lien, that he withdraw said offer and then sell the same subject only to the outstanding one-fourth royalty interest.
¶13 The judgment of the court so rendered was not excepted to by either of the parties thereto, and the attorneys for all parties the judgment.
¶14 The case-made does not contain praecipe for execution and order of sale, nor the original execution and order of sale, but contains what is termed "alias execution and order of sale," issued by the court clerk eight months after the date of the judgment.
¶15 Return of the sheriff shows sale of the property 35 days after date of the "alias execution and order of sale," after advertisement thereof in the Daily Record of Oklahoma City, a daily newspaper of general circulation in Oklahoma county, published continuously for a period of 52 consecutive weeks prior to the first publication of said notice by the sheriff. That said notice of sale was published 35 consecutive days in said paper. That he first offered said property for sale subject to the mineral rights according to the commands of said execution, and not receiving sufficient bid to pay the judgments, withdrew said offer and next offered and sold said premises including the mineral rights, except the royalty interest of Frank O. Ringer.
¶16 Motion to confirm sale was filed by plaintiff.
¶17 Separate objections to confirmation of sale were filed by defendants Harlan T. Deupree and Erwin & Erwin setting up that order of sale was not issued or returned as provided by law, and that the notice of sale was not published as required by law, and notice of sale was not published in a newspaper published in the township where the land is located.
¶18 Also the defendants Harlan T. Deupree and Erwin & Erwin filed separate motions to set aside the sale of the real estate, alleging that plaintiff through and in the name of his brother-in-law purchased all the interest of the owners of said lands in said premises, alleging the day of purchase subsequent to filing of the action and the consideration was paid by plaintiff, and was obtained and held for the sole and exclusive use of plaintiff. That mortgage of plaintiff and the royalty interest of the defendants were deducted from the purchase price; that the deed contained the following exceptions:
"Except mortgage now of record and accrued interest, and 1927 taxes, and outstanding royalty interests."
¶19 That said deed was not recorded until long after the judgment was entered in said cause, and defendants had no notice thereof until a short time previous to the sale.
¶20 That the purpose of plaintiff in procuring said deed was to obtain title, and hinder, embarrass and prevent defendants from arranging any settlement of said mortgage; and plaintiff retained same from record with the intent and purpose of preventing any defense in said action based thereon.
¶21 That since the execution of said deed plaintiff acted as owner of said premises and leased same to grantors in said deed, and collected the rents.
¶22 That by the purchase thereof all lien, right, and interest of plaintiff under his mortgage and foreclosure judgment merged in the title, and he is further under legal obligation to satisfy such mortgage to protect the interest of defendants.
¶23 A hearing was had upon said motions, and the only evidence...
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