Davis v. McGilbray

• Decision Date: 23 February 1921
• Docket Number: 9715.
• Citation: 196 P. 339,81 Okla. 42,1921 OK 20
• Parties: DAVIS v. MCGILBRAY ET UX.
• Court: Oklahoma Supreme Court

196 P. 339

81 Okla. 42, 1921 OK 20

DAVIS v. MCGILBRAY ET UX.

No. 9715.

Supreme Court of Oklahoma

February 23, 1921

Rehearing Denied March 22, 1921.

Syllabus by the Court.

Failure to assign as error the action of the trial court in overruling the motion of the appellant for a new trial presents no question to this court for review where the errors complained of were matters occurring during the trial of the cause.

Section 1143, Rev. Laws of 1910, provide: "No deed, mortgage or contract relating to the homestead exempt by law, except for a period not exceeding one year shall be valid unless in writing and subscribed by both husband and wife." Held, any charge against the homestead not in writing subscribed by both the husband and wife is invalid.

In an action by plaintiffs, husband and wife, against the defendant to recover the value of a homestead wrongfully sold, wherein the trial court renders judgment in favor of the plaintiffs for the value of the homestead less the mortgaged debt, and in addition thereto deducts from such judgment the amount of debts not secured by liens on the homestead, held, that the trial court erred in deducting from such judgment the amount of any debt or debts not secured by instrument or instruments in writing covering said land and signed by both the husband and wife.

Appeal from District Court, Muskogee County; R. R. De Graffenried Judge.

Action by Daniel McGilbray and wife against George W. Davis for value of homestead wrongfully sold prior to the expiration of time for redemption. Judgment for plaintiffs, and defendant appeals, with cross-appeal by plaintiffs. Modified and rendered.

G. W P. Brown, of Chicago Ill., and Emmett Stewart, of Muskogee for plaintiff in error.

William Neff and L. E. Neff, both of Muskogee, for defendants in error.

KENNAMER J.

This cause was originally filed in the district court of Muskogee county by Daniel McGilbray and Jennie McGilbray, plaintiffs against George W. Davis, defendant, to recover the sum of $2,325, the value of 40 acres of land described in the petition of the plaintiffs. The material allegations of the petition alleged that about the 23d day of January, 1913, Daniel McGilbray and Jennie McGilbray executed to George W. Davis a warranty deed conveying the 40 acres of land described in the plaintiffs' petition upon agreement of the said George W. Davis, grantee in the said deed, that he would reconvey said lands to the plaintiffs upon the payment of the amount of $309, if payment was made in one year from the date and delivery of the deed, and alleged that the defendant, George W. Davis, delivered to the plaintiffs a written instrument executed by him to the effect that the lands described in said deed would be reconveyed to the plaintiffs upon the payment of a mortgage which the plaintiffs had executed to the defendant prior to the date of the execution of the deed to secure the payment of the indebtedness of $309; that in May, 1913, the defendant conveyed the land to George Fetterman, who received title to the lands without notice of plaintiffs' right to redeem. The plaintiffs allege that the lands at all times mentioned in the petition were occupied and used by them as their homestead, and that they were dispossessed of the lands by George Fetterman as the grantee of George W. Davis; that George W. Davis had wrongfully conveyed the lands to Fetterman in violation of his contract with the plaintiffs granting them the right of redemption; that by reason of the wrongful act of the defendant, George W. Davis, in conveying the lands to Fetterman the plaintiffs were entitled to recover from the defendant the value of the lands.

To the answer of the petition filed by the plaintiffs the defendant, George W. Davis, answered, denying each and every allegation therein contained, and for a further defense to the petition of the plaintiffs the defendant alleged that he was prevented from performing the contract alleged to have been violated by the plaintiffs voluntarily coming to him and directing and authorizing him to sell the land in controversy to reimburse him for moneys expended by him on their account, and to pay notes and mortgages given by the plaintiffs on said land; that under direction of the plaintiff he sold the lands and accounted to the plaintiffs for the entire proceeds of the sale.

Under the issue joined the cause was tried before Hon. R. R. De Graffenried, district judge, and judgment rendered on the 17th day of September, 1917, in the sum of $565.40, with interest in favor of the plaintiffs and against the defendant. To reverse this judgment the defendant, George W. Davis, prosecutes this appeal, and the plaintiffs, Daniel McGilbray and Jennie McGilbray, defendants in error herein, have filed a cross-petition in error. The plaintiff in error, George W. Davis, will hereafter be referred to as defendant; the defendants in error, Daniel McGilbray and Jennie McGilbray, will hereafter be designated as plaintiffs. The defendant filed a motion for a new trial, which was overruled by the trial court, but the defendant in his petition in error filed herein has not assigned the overruling of the motion for a new trial as error, and this court will not consider errors occurring during the trial unless the ruling of the trial court on the motion for a new trial is assigned as error. This rule of law has been adhered to by this court in a number of cases: Avery v. Hays, 44 Okl. 71, 144 P. 624; O'Neil v. James, 40 Okl. 661, 140 P. 141; Butler v. Oklahoma State Bank, 36 Okl. 611, 129 P. 750; Vandenburg v. Winnie, 55 Okl. 679, 155 P. 245.

The defendant complains in his two first assignments of error that the trial court erred in permitting the filing of an amended petition wherein Jennie McGilbray was made a party plaintiff with her husband, Daniel McGilbray. There is no merit in the contention made by attorneys upon this proposition. The plaintiff Jennie McGilbray, being the wife of the plaintiff, Daniel McGilbray, and the action being one for the recovery of damages for the...