Covington v. Fisher
| Decision Date | 12 September 1908 |
| Docket Number | Case Number: 2020 OK Ter |
| Citation | 22 Okla. 207,97 P. 615,1908 OK 187 |
| Parties | COVINGTON et al. v. FISHER. |
| Court | Oklahoma Supreme Court |
¶0 1. PLEADING--Answers--Inconsistent Defenses. Even if defenses are inconsistent, Unless expressly prohibited by statute, they may still be united in one answer, and the pleader cannot be compelled to elect between such defenses.
2. MORTGAGES--"Filed"--Errors of Officer. A mortgage is filed, within the meaning of the statute, when it is delivered to the proper officer and by him received for the purpose of being recorded. The neglect or mistake of the register of deeds in recording the instrument does not affect the mortgagee.
3. USURY--Intent. There must be an intent to take unlawful interest to constitute usury.
4. SAME--Deduction of Interest in Advance. The interest which would become due at the end of the term for which a loan is made, not exceeding one year''s interest in all, may be deducted from the loan in advance, if the parties thus agree.
5. SAME--Semi-annual and Compound Interest. A clause in a promissory note which reads: "With interest at 12 per cent. per annum after maturity, interest payable semiannually, defaulting interest to draw same rate as principal"--does not make such note usurious on its face.
Error from District Court, Blaine County; James K. Beauchamp, Judge.
Action by J. C. Fisher against John Covington and others. Judgment for plaintiff, and defendants bring error. Modified and affirmed.
H. N. Boardman, for plaintiff in error.
Seymour Foose, Dale & Bierer, and Benjamin F. Hegler, Jr., for defendant in error.
¶1 This was a suit on a promissory note and to foreclose a mortgage given to secure payment thereof, commenced by the defendant in error, plaintiff below, against the plaintiffs in error, defendants below, in the district court of Blaine county. The plaintiffs in error John and Ella Covington were the mortgagors, and filed an answer admitting the execution of the note and mortgage sued upon, and further pleaded a partial failure of consideration and that the note and mortgage were usurious. The defendant the First National Bank of Okeene filed its separate answer and cross-petition against the plaintiff, and also against its codefendants, John and Ella Covington, alleging in substance that the Covingtons were indebted to it on a certain promissory note secured by a real estate mortgage covering the same land described in the mortgage of plaintiff, and asked for a judgment against the Covingtons and a decree foreclosing its mortgage. As against the plaintiff, it alleged that its mortgage was recorded in the office of the register of deeds of Blaine county prior to the time that the mortgage of the plaintiff was recorded, and prayed that, if the plaintiff be entitled to a judgment of foreclosure, his mortgage be decreed to be junior and inferior to the mortgage of the First National Bank of Okeene. The plaintiff filed a reply in the form of a general denial to the new matter set up in the answer of the Covingtons, and in answer to the cross-petition of the First National Bank of Okeene alleged in substance that at the time and prior thereto that the mortgage of the First National Bank of Okeene was recorded its officers, agents, and employes had actual knowledge and information of the existence of the mortgage of plaintiff, and had actual knowledge, notice, and information that the Covingtons had executed, acknowledged, and delivered to the plaintiff the mortgage and note sued upon. The First National Bank of Okeene filed its motion to strike the plaintiff''s reply from the files, or require him to elect upon which defense he would depend, for the reason that the reply consisted of two defenses, which were inconsistent, and which were not permitted under the rules of practice and under the issues as joined in the case, and asked the court to strike from said reply all thereof excepting the general denial, or, in lieu thereof, grant an order requiring the defendant in error to elect which ground of defense he would stand upon. The court overruled the motion to strike or elect, and this ruling of the court is the first error assigned and argued by counsel for the plaintiffs in error.
¶2 Under our procedure, which was taken from Kansas, this cannot be said to be an open question. The case of De Lissa v. Fuller Coal & Mining Co., 59 Kan. 319, 52 P. 886, was an action upon a promissory note, in which the defendant answered, first, by general denial, and second, that the plaintiff had effected a sale of the land in question by fraud. At the beginning of the trial the plaintiff moved the court to compel the defendant to elect upon which ground of defense, the general denial or the allegation of new matter, he would stand. Mr. Chief Justice Doster, who wrote the opinion of the court, says:
"The principal contention of the plaintiff in error is that the answer of the defendant should have been treated as a plea of confession and avoidance, in which case the allegations of new matter contained in the answer would override or neutralize the general denial, and impose the burden of proof upon the defendant.* * *"
¶3 The Chief Justice then quotes approvingly from Pomeroy on Code Remedies as follows:
¶4 The case of Clowers et al v. Snowden et al., 21 Okla. 476, 96 P. 596, is also strongly in point. The Clowers Case was a suit on a promissory note and to foreclose a mortgage given to secure it. The defendant for answer in substance pleaded, first, non est factum; second, want of consideration; third, that plaintiff was not the real owner of the mortgage sued on. The court below sustained an objection to the introduction of certain evidence offered to support the second defense, on the ground that it was inconsistent with the plea of non est factum. Mr. Justice Turner, who wrote the opinion of the court, in reversing the case for this error, says: "Neither can it be said, in the face of the authorities, that the pleas of non est factum and want of consideration are inconsistent." The foregoing cases are decisive of the first question raised by counsel for plaintiffs in error, and seem to be against such contention.
¶5 The next assignment of error complains of certain instructions given by the court defining what would constitute actual notice to a banking corporation; but, as it will hereafter appear that the First National Bank of Okeene must be deemed to have had constructive notice of the plaintiff''s mortgage as a matter of law, an instruction on the effect of actual notice could in no way prejudice its rights.
¶6 The undisputed evidence shows that plaintiff''s mortgage was correctly drawn to cover the "northwest" quarter of section 9, township 18, range 11 west, situated in the county of Blaine; and that this mortgage was filed for record in the office of the register of deeds of Blaine county on the 11th day of December, 1902, and recorded in Book 9 of Mortgages, at page 69. In recording the mortgage the register of deeds made a mistake, and entered it in the record as the "southwest" quarter, instead of the "northwest" quarter, of section 9, township 18, range 11 west, as it was correctly written in the instrument itself. The plaintiff presented and filed the mortgage for record, and it was correctly entered on the index in the office of the register of deeds as the "northwest" quarter, and so appeared in all the books in which it was necessary to make an entry of it, except in recording it at length, when the above mistake occurred. The mortgage of the First National Bank covering the same land bears date of the 11th day of October, 1904, and was recorded in Book 13 of Mortgages, page 48, in the office of the register of deeds, on the 12th day of October, 1904.
¶7 Counsel for the First National Bank complains because the court below admitted in evidence the indexes to the records of the register of deeds, and cites authorities to the effect that the indexing of a deed does not form an essential part of its record. We believe such indexes were admissible, as tending to show the mistake of the register of deeds, and to show that the mortgage, so far as the mortgagee was concerned, was properly prepared and deposited for record and was properly filed and indexed by the recorder. Section 1248, Wilson''s Rev. & Ann. St. 1903, provides:
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