First Nat. Bank of Kingfisher v. Darrough
| Decision Date | 15 November 1932 |
| Docket Number | Case Number: 21053 |
| Citation | 19 P.2d 551,1932 OK 726,162 Okla. 243 |
| Parties | FIRST NAT. BANK OF KINGFISHER v. DARROUGH et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Appeal and Error--Review of Equity Case--Sufficiency of Evidence to Support Findings.
A judgment of a trial court in an equitable proceeding which is based upon a finding of fact by the trial court will not be disturbed by this court unless the finding of fact is clearly against the weight of the evidence.
2. Judgment--Statutory Procedure for Attacking Judgments of District Courts.
The district courts of this state are courts of general jurisdiction. Their judgments may be attacked only in the manner and within the time provided by law.
3. Same--Presumptions in Support of Judgment.
Every fact not negatived by the record of the district court is presumed in support of the judgment of that court.
4. Same--Time Within Which Judgment May Be Attacked Dependent Upon Whether Judgment Void Upon Face.
If a judgment of a district court is void and its invalidity is apparent upon the face of the judgment roll, it may be vacated at any time upon a motion of a party, or any person affected thereby, but if it is necessary to resort to extrinsic evidence to show the invalidity thereof, the attack must be made thereon within three years following the rendition of the judgment or order, or within the time limited by section 563, O. S. 1931 (section 817, C. O. S. 1921).
Appeal from District Court, Grant County; J. W. Bird, Judge.
Action by the First National Bank of Kingfisher against Elmer E. Darrough and others. From the judgment plaintiff appeals. Affirmed in part and reversed in part.
Brownlee & Blaine and J. B. Drennan, for plaintiff in error.
Sam P. Ridings and J. C. McClelland, for defendants in error Elmer E. Darrough, Margery Darrough, and Martha E. Reger.
J. E. Falkenberg and W. H. C. Taylor, for defendants in error: Riley H. Gray, Elsie Gray, J. E. Falkenberg, W. H. C. Taylor, and Katie Johnson.
¶1 This is an appeal from a judgment of the district court of Grant county. The plaintiff in error was the plaintiff in that Court. Hereinafter it will be referred to as the plaintiff. The defendants in error were the defendants in the trial court. Hereinafter, when they are referred to collectively, they will be referred to as the defendants, and when they are referred to individually, their individual names will be used.
¶2 The plaintiff instituted an action against the makers of two notes and two real estate mortgages, and certain other persons claiming some right, title, or interest in and to the real estate described in the mortgages, in which it sought a personal judgment against the makers of the notes and a foreclosure of the mortgages against all of the defendants. The execution of the notes and mortgages was admitted by all of the defendants. There was no dispute in the evidence as to the amount due to the plaintiff on the notes.
¶3 The plaintiff offered the notes and mortgages in evidence, and they were received in evidence over the objection of a number of the defendants. Those objections were upon the ground that the mortgages did not set out which undivided one-fifth interest and which undivided two-fifths interest were mortgaged. Those objections were without merit and were properly overruled.
¶4 The defendant M. E. Reger acquired the interests of the defendant Elmer E. Darrough and of the defendant Margery Darrough in the real estate in question by a warranty deed dated March 8, 1928. Her rights are junior and inferior to the rights of the plaintiff, and she acquired the real estate subject to the mortgages thereon held by the plaintiff.
¶5 By reason of uncertainty as to the particular interests mortgaged, the trial court permitted testimony to be introduced as to the intention of the parties at the time of the execution of the mortgages, and sufficient evidence was introduced to support the finding of the trial court that the intention of the parties to the mortgages was that the defendants Margery Darrough and Elmer E. Darrough would mortgage as security for the note of Margery Darrough only the one-fifth interest in the land owned by Margery Darrough, and that they would mortgage as security for the note of the defendant Elmer E. Darrough only the two-fifths interest owned by Elmer E. Darrough. That finding of the trial court is affirmed.
¶6 Under that holding the rights asserted herein by the defendants Elmer E. Darrough, Margery Darrough, and Martha E. Reger are fully protected, and no further attention need be paid to their claims herein.
¶7 The other defendants contended that the mortgage given to the plaintiff by the defendants Elmer E. Darrough and his wife, which purported to mortgage an undivided two-fifths interest in the land, was ineffective as to more than an undivided one-fifth interest in the land, for the reason that the defendant Elmer E. Darrough, at the time of the execution of that mortgage, owned only an undivided one-fifth interest in the land.
¶8 It appears from the record that the defendants Elmer E. Darrough and Margery Darrough were husband and wife at the time of the execution of the notes and mortgages in issue in this case, and at all times thereafter; that the defendant Margery Darrough received an undivided one-fifth interest in the land involved in this action by the will of her father and the order of the county court in probate; that she was the owner of that undivided interest in the land at the time of the execution of the notes and mortgages involved in this action; that the defendant Elmer E. Darrough purchased an undivided one-fifth interest in the land from one of the devisees, Albert Gray; that he was the owner of that interest therein at the time of the execution of the notes and mortgages involved in this action; that the defendant Riley H. Gray received an undivided one-fifth interest in the land in question by virtue of the said will and order, which undivided interest he conveyed to his wife, the defendant Elsie Gray; that thereafter, one Conrad Strecker purchased the Riley H. Gray undivided one-fifth interest in the land at a sheriff's sale, held pursuant to a judgment of the district court of Grant county in cause No. 1890 in that court, entitled Conrad Strecker v. Elsie Gray and Elmer E. Darrough, which said sheriff's sale was duly confirmed, the sheriff's deed being duly recorded on the 16th day of May, 1913; that the said Conrad Strecker conveyed the same to the defendant Elmer E. Darrough by deed duly recorded on the 16th day of May, 1913; that on the 22nd day of November, 1923, the defendant Margery Darrough executed and delivered to the plaintiff a note and a mortgage securing the same, whereby she mortgaged an undivided one-fifth interest in said land to the plaintiff to secure the payment of the amount of the note given by her to the plaintiff; that her husband, the defendant Elmer E. Darrough, joined with her in the execution of that mortgage for the purpose of waiving his homestead right, if any, in the premises, and not for the purpose of mortgaging any undivided interest in the land which he owned; that on the same date, the defendant Elmer E. Darrough executed and delivered to the plaintiff a note and a mortgage securing the same, whereby he mortgaged an undivided two-fifths interest in said land to the plaintiff to secure the payment of the amount of the note given by him to the plaintiff; that his wife, Margery Darrough joined with him in the execution of that mortgage for the purpose of waiving her homestead right, if any, in the premises, and not for the purpose of mortgaging any undivided interest in the land which she owned; that the two mortgages were dated November 20, 1922, and were duly recorded on the 22nd day of November, 1922; that thereafter suit was instituted against the defendant Elmer E. Darrough for the purpose of canceling the sheriff's deed to Conrad Strecker; that in that action, in the language of the defendants in one of their briefs, a judgment was rendered, "setting aside the sale canceling the deed, but holding the judgment valid and entering judgment upon the original debt, costs, attorneys' fees and interest in the sum of $ 583.98, and made the same a lien upon the land of the Grays (record, pp....
To continue reading
Request your trial