Cushing v. Cummings
| Decision Date | 18 March 1919 |
| Docket Number | Case Number: 8608 |
| Citation | 72 Okla. 176,1919 OK 87,179 P. 762 |
| Parties | CUSHING v. CUMMINGS et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Mortgages -- Consideration for Assumption.
In an action by the assignee of a promissory note to foreclose a mortgage in real estate, and for money judgment on his covenant of assumption against a purchaser thereof (whose deed according to the pleadings, provided for a "good title"), where it is made to appear that in a former suit by the rightful owner in which the original mortgagee and payee of the note (prior to assignment) and the purchaser were defendants, and the deed of the purchaser and the mortgage were, by a valid decree therein rendered, canceled and removedas clouds on the title of the owner, there being a total failure of title in the purchaser, and of consideration for the covenant of assumption, no recovery thereon will lie.
2. Process -- Publication -- Nonresident Parties--Statute.
A state has power by statute to provide for the adjudication of titles to real estate within its limits as against nonresidents who are brought into court only by publication.
3. Same.
Service may be made by publication in actions brought under sections 4671 and 4672, Revised Laws, where any or all the defendants reside out of the state, or where it is slated in the affidavit for service by publication that the plaintiff with due diligence is unable to make service of summons upon such defendant or defendants within the state, and in actions which relate to, or the subject of which is, real or personal property in this state, where any defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partly in excluding him from any interest therein, and such defendant is a nonresident of the state, or a foreign corporation, as provided in section 4722, Revised Laws.
4. Judgment--Service by Publication--Collateral Attack.
A decree, made upon service by publication, in a case in which such service is authorized, which recites that "each of the defendants has been duly notified more than 20 days prior to this date of the pendency of this action, as required by law, by publication of notices thereof for three consecutive weeks in Coal county, Okla." will, on collateral attack on such decree, be held a sufficient compliance with section 4725, Revised Laws, providing the manner of publi- cation and fixing the time within which the defendants thus to be served may answer.
Error from District Court, Coal County; J. H. Linebaugh, Judge.
Action by Ada T. Cushing, "executrix of the estate of Francis J. Cushing deceased," against Robert M. Cummings and others. Judgment for defendants on demurrers to separate amended replies, and action dismissed, and plaintiff brings error. Affirmed.
Tibbetts & Green, for plaintiff in error.
J. F. McKeel, for defendant in error Chism. Brunson & Shirley, for defendants in error Ben Finley, Annie Finley, Lita Billy, C. M. Threadgill, and Klara May Threadgill.
¶1 Plaintiff's action was to recover judgment on a promissory note executed by defendant Cummings and wife to the Mortgage & Debenture Company, Limited, on the 24th day of March, 1908, and to foreclose a real estate mortgage made contemporaneously therewith on 340 acres of land in Coal county; and which note was indorsed and delivered to plaintiff on January 8, 1913, and for personal judgment against W. P. Chism, who had purchased the mortgaged premises from Cummings and wife and assumed the payment of the mortgage. The other defendants, it was charged in the petition, had, or claimed to have, some right, title, interest, or estate in and to the mort- gaged premises the exact nature of which was unknown to plaintiff, and which it was sought to have determined and foreclosed. The answer of the Finleys, Threadgills, and Lita Billy, among other things, set up that the land in question was allotted to Albert Billy, an enrolled full-blood Choctaw Indian, who died during the year 1907, and prior to statehood, intestate and without issue, leaving as his sole surviving heirs at law the defendants Ben Finley and Lita Billy; that on or about January 26, 1910, said Lita Billy, as plaintiff, instituted a suit in the district court of Coal county against the unknown heirs of D. T. Gray, deceased, W. P. Chism, and the Mortgage & Debenture Company, Limited, in which defendant Ben Finley was, during the progress of the action, made a party defendant; that thereafter, and on the 27th day of September, 1910, a decree was rendered in said suit canceling the mortgage of the Mortgage & Debenture Company, Limited, and the deed of conveyance to W. P. Chism, and to the unknown heirs of D. T. Gray, deceased. A copy of the decree was attached to the answer as an exhibit thereto. The answer further charged that defendants Lita Billy and Klara May Threadgill were the owners each of an undivided one-half interest in and to the property, the latter having purchased the interest of defendant Ben Finley; that neither Robert M. Cummings nor Allie B. Cummings, his wife, ever having owned any interest in the lands, as found and determined by the decree, and, the mortgage by them made to the Mortgage & Debenture Company, Limited, having been by such decree canceled and held for naught, plaintiff was not entitled to recover. The amended answer of defendant Chism denied that on the 24th day of March, 1908, or at any other time, the defendants Cummings and wife were the owners of the land by them mortgaged; admitted his purchase of the land from Cummings, and the assumption of the plaintiff's mortgage; but charged that, neither of the grantors therein ever having owned the premises, or any interest therein, the consideration for his promise to pay the mortgage had "wholly failed, and this defendant has long since suffered a recovery of said premises." The defendant pleaded the judgment of September 27, 1910, by which the latter mortgage was canceled, as was the deed of conveyance from Robert M. Cummings and wife to him; and charged that the defendant's promise was collateral to the promise of the makers of the note sued on, and that the sole consideration therefor was that said Cummings and wife should convey to him "a good title" to the land purchased. Other defenses are pleaded, not material to a determination of the case in this court. The rendition of the decree in the district court of Coal County on September 27, 1910, is admitted. The case is before us on demurrers of defendants to the separate amended replies of the plaintiff. It does not appear that service of summons was ever had on defendants Robert M. Cummings and Allie Cummings, his wife. The defendants Christian Wainwright, and the unknown heirs of D. T. Gray, deceased, have passed out of the case, or at least their rights do not appear to be involved. Judgment was rendered on the demurrers in favor of defendants, and plaintiff's action dismissed.
¶2 The first error urged is that the court should have applied the demurrer of the defendant Chism to his answer, and rendered judgment against him in favor of plaintiff for the amount of the Cummings note, the payment of which he had assumed. Counsel cite the following opinions of this court in support of their contention: Jones v. Perkins, 43 Okla. 734, 144 P. 183; Midland Savings & Loan Co. v. Neighbor, 54 Okla. 626, 154 P. 506; and United States Bond & Mortgage Co. v. Keahey, 53 Okla. 176, 155 P. 557, L. R. A. 1917C, 829. In the first case, while the original deed from Barnett to Smith and wife was void, Barnett afterward, after reaching his majority, executed a good and sufficient deed to Gooch, the purchaser from Smith, who thereafter conveyed the land to defendant Jones. In this way Gooch acquired and conveyed to Jones a good and sufficient title, and it was held that the latter could not attack the validity of the mortgage given by Smith and wife to Perkins. In the Midland Savings & Loan Company Case it was held that one who purchases real property expressly subject to a mortgage thereon is, in an action to foreclose the mortgage, precluded from asserting the invalidity of such mortgage and defending against it on the ground that it is not fully enforceable against his grantor. In that case it was admitted plaintiff was entitled to recover the principal debt with a minimum rate of interest thereon. In the United States Bond & Mortgage Co. Case it was held, where one purchases land subject to a mortgage, the land conveyed is effectually charged with the incumbrance to the same effect as if the purchaser had expressly assumed the payment of the debt, or had himself made a mortgage on the land to secure it, and under such circumstances the purchaser would not be permitted to question the validity of the mortgage on the grounds that it was void as to his grantor. In the latter two cases the mortgager had and conveyed a good title to the premises subject only to the outstanding mortgage, and the defense interposed involved the right of the purchaser, though acquiring a good title, to defeat, either in whole or in part, a re- covery and foreclosure by the mortgagee. Such is not the case here, for, according to the answer of Chism the averments of which the demurrer admit, there was a total failure of consideration, and a former adjudication, canceling both the mortgage and the deed from Cummings and wife to him, whereby he had "suffered a recovery of the premises by the rightful owners." A purchaser of mortgaged premises, who undertakes by the terms of his conveyance to pay an outstanding mortgage thereon, is not, under all circumstances, bound to do so. He may not, while in possession, or where there is no eviction, actual or constructive, defend on the ground of a failure of consideration, nor has he a complete defense where the failure of consideration is but partial. Where, however, a mortgager of land undertakes to convey a good and sufficient title,...
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