Enid Bank & Trust Co. v. Noll

• Decision Date: 25 October 1938
• Docket Number: Case Number: 28346
• Citation: 1938 OK 539,183 Okla. 647,84 P.2d 24
• Parties: ENID BANK & TRUST CO. v. NOLL
• Court: Oklahoma Supreme Court

1938 OK 539

84 P.2d 24

183 Okla. 647

ENID BANK & TRUST CO. v. NOLL

Case Number: 28346

Supreme Court of Oklahoma

Decided: October 25, 1938

Syllabus by the Court.

¶0 1. REPLEVIN--Promissory Note Subject to Replevin.

A promissory note is personal property which may be replevined.

2. SAME-- Right of Owner of Note to Replevin Same From Fraudulent Purchaser.

Where the owner of a promissory note is induced by fraud to sell it, the fraud vitiates the transaction upon her election, and the possession thereof on the part of the purchaser becomes wrongful, and the promissory note may be replevined from him.

Appeal from District Court, Garfield County; O. C. Wybrant, Judge.

Action by Kate Noll against the Enid Bank & Trust Company and another, in the nature of replevin to regain possession of an unsecured note and mortgage, wherein two others intervened claiming title to the note. From a judgment in favor of the plaintiff, the named defendant and interveners appeal. Judgment affirmed.

McKeever, Stewart & McKeever and Roy J. Elam, all of Enid, for plaintiffs in error.

Harry O. Glasser, of Enid, for defendant in error.

BAYLESS, Vice Chief Justice.

¶1 Kate Noll brought an action in the nature of replevin in the District Court of Garfield County, Oklahoma, against Enid Bank and Trust Company, a banking corporation, and O. J. Fleming, to regain possession of an unsecured note and a note and mortgage. The unsecured note is the only property now involved. Two other banking corporations intervened claiming title to the note. Judgment was for the plaintiff and the banks appeal.

¶2 Plaintiff's petition is in the form of an affidavit of replevin. The defendant and interveners claimed to be innocent purchasers of the note. The evidence showed that the note was made by a Catholic charitable organization, payable to itself or order and duly endorsed. Plaintiff was the owner and holder of it, and was induced to trade it for stock in an oil company. It stands virtually admitted that the stock was worthless and the deal grossly fraudulent.

¶3 The plaintiff's theory was that since she had been deprived of her property wrongfully, that is by a fraudulent sale, the equitable title and the right to possession remained in her, and she could maintain replevin. See 23 R.C.L. 889, and cases cited, including Wails v. Farrington, 27 Okl. 754, 116 P. 428, 35 L.R.A.,N.S., 1174.

¶4 The defendant and interveners rely upon Olson v. Thompson, 6 Okl. 74, 48 P. 184, and Id., 6 Okl. 576, 52 P. 388. In that case the maker of two promissory notes attempted to replevin them from the payee upon the ground they had been exacted from him under menace and duress. In the first opinion it was held that one who makes and delivers a promissory note cannot replevin it upon the ground of failure of consideration. On further consideration of the matter, the court wrote a further opinion on rehearing, and on page 578, 52 P. on page 388, said: "Undoubtedly, the owner of a subsisting promissory note, other than the maker, may maintain replevin for the possession thereof against one not having a paramount right of possession, because he has a property in it; but where the possession of a note that has become invalid is sought by the maker it is not because he claims to be entitled to it as property (so far as his relation to it is concerned), but because he is entitled to be protected against it as evidence of a claim. Sigler v. Hidy , 9 N.W. 374."

¶5 This statement was of the difference between a maker attempting to recall notes issued, and an owner regaining possession of a note which had been wrongfully taken from him.

¶6 The general rule is that a promissory note may be the basis of an action of replevin. See authorities above...