Clark v. Ellison

• Decision Date: 15 June 1937
• Docket Number: Case Number: 25895
• Citation: 1937 OK 382,180 Okla. 630,71 P.2d 609
• Court: Oklahoma Supreme Court
• Parties: CLARK, Ex'x. v. ELLISON et al.

1937 OK 382

71 P.2d 609

180 Okla. 630

CLARK, Ex'x. v. ELLISON et al.

Case Number: 25895

Supreme Court of Oklahoma

Decided: June 15, 1937

Syllabus

¶0 1. APPEAL AND ERROR - Sufficiency of Evidence to Sustain Verdict not Reviewed Absent Proper Objections Below.

Where a demurrer is not interposed to the evidence, or a directed verdict requested, the sufficiency of the evidence to sustain the verdict may not be reviewed on appeal.

2. APPEAL AND ERROR - Vendor and Purchaser - Jury's Answers to Interrogatories Merely Advisory in Action to Foreclose Vendor's Lien.

In an action to establish and foreclose vendor's lien the answers of the jury to special interrogatories are advisory only and are not binding upon the trial court nor upon this court on review.

3. SAME - Foreclosure Action One of Equitable Cognizance - Disposition of Cause Where Judgment Against Clear Weight of Evidence.

An action to foreclose vendor's lien is one of equitable cognizance, and where the same is tried to the court after jury waived, this court upon proper assignment will review the entire record, and if convinced that the judgment of the trial court is against the clear weight of the evidence, will reverse the same and remand with appropriate directions, or will enter such judgment as in its opinion should have been rendered in the first instance.

4. SAME - Judgment Denying Foreclosure of Vendor's Lien not Sustained.

Record in the instant cause examined. Held: The judgment is against the clear weight of the evidence.

Appeal from District Court, Tulsa County; Thurman S. Hurst, Judge.

Action by Esma C. Clark, executrix of the estate of Luella Crum, deceased, against H.B. Ellison and another. Judgment for defendants, and plaintiff has appealed. Affirmed in part and reversed in part and remanded with directions.

T.L. Brown and Woodson E. Norvell, for plaintiff in error.

N.E. McNeill, Philip J. Kramer, and R.P. Colley, for defendants in error.

GIBSON, J.

¶1 This action was commenced in the district court of Tulsa county by plaintiff in error against the defendants in error to recover judgment on certain promissory notes and to foreclose real estate mortgage given to secure same; or, in the alternative, to establish and foreclose a vendor's lien upon the premises.

¶2 The parties are referred to herein as they appeared at the trial.

¶3 The facts as alleged by plaintiff are substantially as follows:

¶4 On August 24, 1925, plaintiff's testatrix, Luella Crum, received from one H.G. Stetson a deed conveying to her the premises here involved, which deed was placed of record December 29, 1928. In the meantime, July 11, 1927, the said Stetson and one Russ L. Grant, acting as agents for the said Luella Crum, entered into a contract with defendants wherein defendants agreed to purchase said premises for the sum of $26,000, payable $4,000 cash, and by five annual notes of $2,000 each, and one note for $4,400, and by the assumption of $7,600 secured by first mortgage then held by the Federal Land Bank. That said agents thereupon delivered a warranty deed to defendants covering said premises, and executed by the said H.G. Stetson under date of July 11, 1927.

¶5 Two or three days subsequent to the delivery of said deed to defendants, the notes and mortgage here sued upon were executed by them and delivered to said agents in payment of the purchase price of said land.

¶6 Defendants paid to said agents the first two of the said $2,000 notes, and payment was endorsed thereon and the notes returned to defendants, and thereafter defendants refused to make further payments, assigning as their reasons therefor that the deed of July 11, 1927, from Stetson to them was a forgery.

¶7 It is further alleged that thereupon Luella Crum in December, 1928, executed a warranty deed to defendants and delivered same to them; that said last-mentioned deed through inadvertence and mistake failed to except therefrom the first mortgage of the Federal Land Bank, and the mortgage of Luella Crum here sued upon. It is further alleged that defendants have repudiated said last-mentioned deed, and that plaintiff is entitled to have the same canceled or to have it reformed so as to exclude from the operation thereof the mortgages above mentioned.

¶8 Plaintiff seeks in the alternative to establish and foreclose a vendor's lien upon the premises upon the theory that the notes were given in payment of the purchase price of the land.

¶9 Defendants sought to defeat recovery on the ground of material alteration of the notes and mortgage, alleging that the name of the payee and mortgagee, respectively, had been changed from that of H.G. Stetson to that of Luella Crum subsequent to the execution and delivery of said instruments and without defendants' knowledge or consent.

¶10 They plead further that the deed from Luella Crum to defendants and here sought to be reformed was a portion of a scheme on the part of Luella Crum and her agents, Stetson and Grant, to defraud the defendants; that the said Stetson had denied the validity of the deed from him to Luella Crum in the first instance; that by said scheme said parties had defrauded defendants of the sum of $9,100 and had caused them to pay out on the Federal Land Bank mortgage the sum of $4,240. They assert that plaintiff is not entitled to equitable relief until said sums are tendered back.

¶11 For reply plaintiff denied generally the allegations of fraud and denied the alterations as alleged and pleaded ratification on the part of defendants.

¶12 The issues of material alteration and ratification thereof were submitted to the jury under general instructions, and a verdict was returned for defendants.

¶13 Upon special interrogatories the jury found that the deed from. Stetson to defendants under date of July 11, 1927, was not signed by Stetson and that he had never ratified the same; and found that the notes and mortgage were altered as alleged after their execution and delivery without consent of defendants and was done by Luella Crum or some one acting in her behalf.

¶14 Under agreement of the parties the cause of action relative to reformation or cancellation of the deed of December, 1928, and the cause for foreclosing vendor's lien were tried to the court without a jury.

¶15 The court gave plaintiff an opportunity to do equity by tendering to defendants the sum of $9,100, the amount paid to plaintiff or her agents by defendants. Upon plaintiff's refusal to make tender, the court found against her on her cause for reformation or cancellation of the deed of December, 1928. The court found also that plaintiff was not entitled to a vendor's lien upon the premises.

¶16 Judgment based upon the verdict of the jury and the findings of the court was then rendered in favor of defendants and against plaintiff on the several causes of action, and the mortgage was decreed null and void and was canceled and set aside. From that judgment plaintiff has appealed.

¶17 Plaintiff says the court erred in submitting any of the issues to the jury. It is argued that if the pleadings tender issues for equitable relief, the cause is not for the jury. Smith v. Williams, 78 Okla. 297, 190 P. 555; McAleer v. Dawson, 119 Okla. 273, 248 P. 615.

¶18 It is not shown that plaintiff objected to the submission of the cause to the jury, nor does it appear that the alleged error of the court in so doing was presented by motion for new trial. Plaintiff may not raise such question here for the first time. Nowlin v. Melvin (Noland v. Melvin) 47 Okla. 57, 147 P. 307. There it was held as follows:

"The objection that a party had a jury trial to which he was not entitled cannot be raised for the first time on appeal."

See, also, Walker v. Sager, 65 Okla. 305, 166 P. 714; Ozark States Trust Co. v. Winkler, 84 Okla. 7, 202 P. 12, 14.

¶19 However, the action on the notes and to foreclose mortgage was one for the recovery of money wherein a personal judgment was sought, and is one properly triable to a jury as provided in section 350, O. S. 1931. Collins v. Industrial Savings Society, 78 Okla. 319, 190 P. 670. See, also, Jones v. Benson, 158 Okla. 25, 12 P.2d 202.

¶20 Plaintiff next objects to certain alleged hearsay evidence in the form of testimony given by the defendant H.B. Ellison concerning a conversation between him and Stetson relative to Stetson's execution of the deed in 1925 to Luella Crum. This testimony indicates a denial on the part of Stetson of his execution of said deed.

¶21 This evidence had no bearing upon the issues submitted to the jury, either generally or by special interrogatories. If it had any bearing upon the case in any way, it concerned only the defendants' alleged right to treat the entire transaction between them 'and Luella Crum and her agents at an end and to demand return of the money paid out by defendants to them under the contract, and in this respect concerned defendants' alleged right to treat the deed of December, 1928, from Luella Crum to defendant Ellison as mere security for the repayment of said money. That was a matter which by agreement was tried to the court without a jury in the trial upon the causes of action for cancellation of said deed of December, 1928, and for foreclosure of vendor's lien.

¶22 While this evidence was produced before the jury, it is not shown wherein the same, if hearsay, prejudiced the minds of the jury in their deliberations upon the questions of material alteration and ratification thereof as placed before them for their decision in the cause upon the notes and mortgage. We have examined this testimony and are unable to determine wherein the plaintiff's cause may have suffered injury thereby. Plaintiff in such case should point out the injury, if any, for, as held in Smith v. Felkel, 91 Okla. 184, 217 P. 196:

"Where complaint is made of testimony introduced on part of one party, * * * it is not enough to call attention to the testimony, but the plaintiff in error must point out wherein his cause suffered injury

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