Clevenger v. Lewis

• Citation: 1908 OK 69,95 P. 230,20 Okla. 837
• Decision Date: 15 April 1908
• Docket Number: Case Number: 1935 OK Ter
• Parties: CLEVENGER v. LEWIS.
• Court: Supreme Court of Oklahoma

1908 OK 69

95 P. 230

20 Okla. 837

CLEVENGER v. LEWIS.

Case Number: 1935 OK Ter

Supreme Court of Oklahoma

Decided: April 15, 1908

Syllabus

¶0 1. SALE--Warranty of Title. A sale of personalty in the vendor's possession implies a warranty as to the entire title, protecting against partial defects, liens, charges, and incumbrances by which the title transferred is rendered anything less than full, perfect and unincumbered.

2 SAME--Action on Warranty--Burden of Proof. When there is an outstanding mortgage, and the mortgagor obtains possession of the property by writ of replevin, the vendee is not required to await the final adjudication of the mortgagee's claim before beginning action upon the implied warranty; but, in such event, the burden would be upon the vendee to prove a valid pre-existing mortgage in such mortgagor before he could recover on such warranty.

Error from Probate Court, Canadian County; before J. J. Phelps, Judge.

Action by Warren H. Lewis against O. M. Clevenger. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

"On the 1st day of January, 1904, for value received, I prom-plaintiff, commenced this action in the probate court of Canadian county, Okla. T., against O. M. Clevenger, as defendant. Said action was based upon a certain promissory note in haec verba:

"$ 239.81.

Calumet, O. T., Aug. 28th, 1903.

"On the 1st day of January, 1904, for value received, I promise to pay C. W. Lewis or order two hundred thirty-nine 81-100 dollars, With interest at the rate of 10 per cent. per annum, payable annually. Payable at Calumet, O. T. And it is agreed that, if the interest or principal is not paid when due, it shall bear interest at the rate of eight per cent. per annum, and the whole sum shall become due and payable at the option of the holder if the interest be not paid within thirty days after due. It is also stipulated that, should proceedings be commenced to enforce the collection of this note by law, a reasonable amount shall be allowed as an attorney fee, and the same shall be taxed as costs in the cause. The amount of this note being less than three hundred dollars, I hereby consent and agree that a justice of the peace shall have full and complete jurisdiction thereof in case suit is brought.

"O. M. CLEVENGER.

Indorsed: "Nov. 3, 1903. Pay to order of Warren H. Lewis C. W. Lewis."

On November 9, 1905, defendant filed his first amended answer. On the 11th day of November, 1905, A. Baird, as assignee of C. W. Lewis, filed his interplea, alleging that he was the duly qualified and acting assignee of C. W. Lewis, under a general assignment for the benefit of creditors made on the 5th day of September, 1903, and that the said assignee was and is the owner of said note and deed evidenced thereby described in plaintiff's petition, and that the alleged sale and indorsement of the same to the plaintiff was without consideration, and not bona fide; that the said sale, indorsement, and delivery of said note was made in contemplation of said general assignment and judgment by said defendant, and so made in order to place the same out of the reach of the creditors of said C. W. Lewis. Wherefore said interpleader asked that he be adjudged to be the owner of said note. Thereafter, on the 13th day of November, 1905, the said plaintiff moved the said court to strike the said interplea from the files, for the reason that the said assignee did not show any interest in the subject-matter of the litigation. The record does not show that said motion to strike said interplea from the file was ever acted upon. Thereafter, on the same day, to wit, the 13th day of November, 1905, the plaintiff filed a motion to require defendant to make his amended answer more definite and certain. And thereafter on the 18th day of November, 1905, the defendant filed his second amended answer, wherein he, except as thereinafter expressly admitted, denied all and singular all of the allegations in plaintiff's petition. Further, said defendant admitted the execution of the note sued on, and further alleged that about May, 1902, C. W. Lewis, heretofore referred to as the original payee in said note, was in the possession of and claimed to be the owner of 63 head of Aberdeen-Angus cattle, which were described in a certain chattel mortgage, executed on the 9th day of January, 1902, to secure the sum of $ 2,048.38 by the said C. W. Lewis to a firm named Allen-Dudley & Co. A copy of said mortgage was attached and marked "Exhibit A." The same was filed for record on the 11th day of January, 1902.

Defendant further alleged in said answer that said C. W. Lewis then and there represented and stated to him that he was the absolute owner of said cattle, and that they were free and clear of all incumbrances, and that he had a good and valid right to sell and convey the same, and solicited said defendant to purchase an undivided-one-half interest therein for the sum of $ 1,945.15, to be paid by a promissory note bearing interest at the rate of 8 per cent. per annum and due one year after date, and that the defendant relied upon the statements and representations of said C. W. Lewis, believing same to be true, and without any knowledge whatever of said incumbrance, and relying upon the representation of said C. W. Lewis that he was the absolute owner of said cattle, and had a good and lawful right to sell and convey the same, and that said cattle were free from all incumbrance, said defendant was induced to and did execute and deliver to the said C. W. Lewis his promissory note for the sum of $ 1,945.15, dated May 28, 1902, payable one year after date; with interest at the rate of 8 per cent. per annum, the consideration for said note being an undivided one-half interest in said cattle.

The defendant further alleged that he spent large sums of money in caring for said cattle, a portion of which sum so expended by the defendant was evidenced by a promissory note executed to the said C. W. Lewis dated April 28, 1903, in the sum of $ 666.02; that thereafter the defendant; purchased of said C. W. Lews an undivided one-half interest in a certain number of head of horses, and executed in payment thereof to the said C. W. Lewis his promissory note, wherein he agreed to pay to said C. W. Lewis the sum of $ 600 on demand, with interest at the rate of 10 per cent. thereon; that no demand was made by said C. W. Lewis, or any other holder thereof, until the 28th day of August, 1903, on which date the said C. W. Lewis renewed and extended the same by surrendering up the old notes and taking in lieu thereof defendant's two promissory notes, one for the sum of $ 1,945.15, dated on the 1st day of June, 1904, bearing interest at the rate of 8 per cent. per annum, and another for the sum of $ 666.02, due on the 1st day of June, 1904, bearing 10 per cent. interest, and at the time, and as a part of the same transaction, at the request of the said Lewis, the defendant, to cover the accumulated and earned interest on said notes, executed to the said Lewis the promissory note upon which this action is based, and the sole and only consideration moving from said C. W. Lewis to said defendant was the accumulated interest on said notes as aforesaid.

Defendant further alleged: That at all times said C. W. Lewis was a resident of the state of Iowa. That on the 5th day of September, 1903, the said C. W. Lewis became insolvent, and in the said state of Iowa executed a general deed of assignment for the benefit of his creditors, wherein he assigned to one A. Baird all of his property, real and personal, situated in said state and in the territory of Oklahoma, in trust for the benefit of all his creditors in accordance with and as approved by the laws of the said state of Iowa. That said assignee under said...