Core v. Smith

• Decision Date: 12 May 1909
• Parties: CORE v. SMITH
• Court: Oklahoma Supreme Court

1909 OK 322

102 P. 114

23 Okl. 909

CORE v. SMITH

Supreme Court of Oklahoma

Decided: May 12, 1909

SYLLABUS

¶0 In obtaining service by publication, if there is a total failure to state in the notice any material matter required by Wilson's Rev. & Ann. St. Okl. 1903, § 4278, the service is void, and subject to collateral attack; but where there is not such an entire omission of a material matter from the notice, and it is inferentially or insufficiently set forth therein, the service is merely voidable, and can be successfully attacked only on a direct proceeding.

In a collateral attack upon a judgment of foreclosure, where the record discloses that an affidavit for publication for the nonresident defendant assailing said judgement was made, and, because destroyed, was not produced, but which was approved by the court, which upon it rendered said decree of foreclosure, as all presumptions are in favor of the validity of the orders and proceedings of a court of general jurisdiction, said notice will be presumed to be sufficient under the statute until the contrary is shown.

Where, upon petition in foreclosure filed on December 29, 1897, summons issued, and was returned "Not found" as against a nonresident junior mortgagee, and first publication of notice to him as such was made March 17, 1898, who, without actual knowledge of the pendency of said suit, on March 9, 1898, assigned said mortgage to an innocent purchaser for value, held that the lis pendens established by the filing of said petition (Wilson's Rev. & Ann. St. Okl. 1903, § 4285) was rendered of no avail against said assignee, who took said mortgage unaffected by said subsequent decree of foreclosure against his said assignor. Held, further, that on reassignment thereof on April 18, 1903, in good faith and for value by said assignee to said assignor, he took the same likewise unaffected.

Where a note, payable two years after date, with interest payable semiannually, secured by mortgage providing, "but if said sum or sums, or any part thereof, or any interest thereon, is not paid when the same is due, and if the taxes and assessments of every nature, which are or may be assessed and levied against said premises, or any part thereof, are not paid when the same are by law made due and payable, then the whole of said sum or sums and interest thereon, shall and by these presents become due and payable," is in default for nonpayment of interest and taxes on the third Monday in January 1898, held that a cause of action upon such default does not accrue within the meaning of the statute of limitation (Wilson's Rev. & Ann. St. Okl. 1903, § 4216), so as to start the running of said statute.

Where mortgaged premises are sold under a prior mortgage, and bought in by the mortgagee at foreclosure sale, who sold again to the mortgagor, the right of the assignee of a junior mortgagee not a party to said foreclosure suit are not thereby impaired; so far from it, said resale and purchase by the mortgagor will operate as a payment of said prior mortgage. Held also, that a purchaser of said lands from said mortgagor took the same discharged of said prior mortgage, subject to the right of foreclosure of said assignee or of his assignor to whom said mortgage had been reassigned.

Error from District Court, Kingfisher County; C. F. Irwin, Judge.

Action by Delmar A. Smith against C. A. Core and another. Judgment for plaintiff against Core, and he brings error. Reversed and remanded, with directions.

On September 1, 1903, Delmar A. Smith, defendant in error, plaintiff below, sued C. H. Core, plaintiff in error, defendant below, and J. T. Stanley, in the district court of Kingfisher county, to quiet his title to the N. E. 1/4, section 30, township 19 N., range 9 W., of the Indian Meridian in Oklahoma Territory, and, after service by publication, took judgment against them by default. On March 7, 1904, the court on proper showing set aside said judgment, and permitted defendants to plead, which they did by separate answer, that of Stanley being in effect a disclaimer, after which he ceased to be a party to the suit. On March 25, 1904, H. A. Kahler, S. R. Blakley, and Mary A. Blakley were also made parties defendant, and leave given said Core to file an amended answer and cross-petition, which he did, making all of said persons parties defendant. After much pleading the material facts were, in substance, agreed to be that on May 7, 1894, U. S. Blakley, then the owner of said land, joined with his wife in a mortgage thereon to M. Miebergen for $700, and on the same day sold and conveyed said land subject to said mortgage to defendant in error, S. R. Blakley, who on November 16, 1895, joined with his wife, Mary A. Blakley, in a mortgage thereon to one Drennan for $903, due in 1896, and on November 20, 1897, in a second mortgage to said Core for $901.33, payable two years after date, with interest payable semiannually, all of which said mortgages were duly filed for record in the office of the recorder of deeds of Kingfisher county in the order in which they were given; that on December 29, 1897, M. Miebergen brought suit against said Blakley and wife, Drennan, and Core in the district court of Kingfisher county to foreclose his mortgage and secured personal service on the three former, but as to said Core, who had no actual knowledge of the suit, the summons was returned "Not found"; that said Core, on March 9, 1898, then a resident of Iowa, in writing on the back thereof assigned in good faith, for value, his said note and mortgage to J. T. Stanley, also a resident of said state (which said assignment was duly recorded in the office of the register of deeds of Kingfisher county on March 21, 1898), who on April 18, 1903, in like manner reassigned said mortgage to said Core, which was also duly recorded; that on March 16, 1898, upon affidavit, publication issued for said Core, which was made, and return thereof filed April 2, 1898; that on October 10, 1898, M. Miebergen recovered judgment against Blakley and wife for said mortgage debt, interest, and cost and $100 attorney's fees, whereupon an order of sale issued, and said lands sold to satisfy the same, appraisement being waived, to M. Miebergen, the highest bidder, for $100, which said foreclosure sale was on June 3, 1899, confirmed by the court, and a sheriff's deed issued to him therefor; that on January 25, 1900, M. Miebergen, for $1,400 to be paid, sold said land to said Blakley and wife, and executed to them a bond for title, and on August 25, 1902, the same being paid, conveyed the same to them by deed, who thereupon paid off and discharged said mortgage to Drennan; that on April 20, 1902, said Blakley and wife executed and delivered to the defendant in error H. A. Kahler two mortgages on said land for money borrowed to pay Miebergen as aforesaid, one for $1,000, the other for $43, and on February 2, 1903, conveyed said land for value to defendant in error Delmar A. Smith, who brought this suit to quiet his title, which is met by answer and cross-petition on behalf of said Core, as stated, who in effect assails said decree of foreclosure, sets up his mortgage as the first lien upon the land, and prays for judgment against S. R. Blakley and wife for the amount of said mortgage debt, and that the same be foreclosed. On a hearing of the cause the trial court, in effect, decreed that the plaintiff in error, Core, was not entitled to relief, and that the title of Delmar A. Smith to the land in controversy be quieted, to reverse which said decree this appeal is brought.

F. L. Boynton, for plaintiff in error. H. N. Boardman, for defendant in error Smith. Robberts & Curran, for defendants in error Blakley and wife. Warren K. Snyder, for defendant in error Kahler.

TURNER, J. (after stating the facts as above).

¶1 Assailing said decree of foreclosure, it is contended by Core that the same is not binding on him for want of notice, an agreed copy of which is as follows: "First published March 17, 1898. Nonresident Notice. M. Miebergen, Plaintiff, v. Ulysses S. Blakley, Annie L. Blakley, Samuel R. Blakley, Mary A. Blakley, R. H. Drennan, and C. H. Core, Defendants. The Territory of Oklahoma to C. H. Core, Defendant: You are hereby notified that you and the defendants above named have been sued by the above-named plaintiff M. Miebergen in the district court for the Fifth judicial district in and for Kingfisher county, Okl. T.; that said action is a suit to foreclose a mortgage on the northeast quarter of section 30, township 19, north of range 9 west I. M. Kingfisher county, Territory of Oklahoma, and to recover money due on said mortgage; that unless you answer the petition of said plaintiff filed in said cause in said court on or before the 28th day of April, 1898, said petition will be taken as true and judgment rendered against you for the sum of $989.80, with interest thereon at the rate of 12 per cent. per annum from the 7th day of November, 1897, $100 attorney's fees, for cost of suit, for the foreclosure of said mortgage, and the sale of said mortgaged premises to pay said indebtedness, attorney's fee, and costs, and for such other relief as the court may deem proper. Witness my hand and the seal of said court this 16th day of March 1898. J. C. McClelland, Clerk of the District Court, by George H. Laing, Deputy." He contends that the same is insufficient to confer jurisdiction as to him, in that it fails to comply with that part of Wilson's Rev. & Ann. St. Okl. 1903, § 4278, which provides that the same shall state that defendant has been sued, and that if he fails to answer in time, the "petition will be taken as true and judgment, the nature of which shall be stated, will be rendered accordingly." He specially urges that the notice fails to state the nature of such judgment as would be rendered against him by default, and for that reason said notice is void. We do not think so, but are of the opinion said notice is not so...