First Nat. Bank v. Colonial Trust Co.
| Decision Date | 10 July 1917 |
| Docket Number | 7432. |
| Citation | 167 P. 985,66 Okla. 106,1917 OK 360 |
| Parties | FIRST NAT. BANK OF TULSA ET AL. v. COLONIAL TRUST CO. ET AL. |
| Court | Oklahoma Supreme Court |
On Rehearing, September 25, 1917.
Syllabus by the Court.
An action to foreclose a real estate mortgage may be maintained without seeking a personal judgment for the mortgage indebtedness.
There being no statute in this state directing the manner of conducting the sale of property by a receiver, the court, in the order of sale issued upon the decree of foreclosure, may direct the manner in which the sale shall be conducted.
It is not a valid objection to the confirmation of the return of sale made by the receiver that a part of the property sold was real estate, and therefore the order of sale should have been directed to the sheriff and not to the receiver.
Where at a hearing had upon objections to the confirmation of the return of sale made by the receiver, certain irregularities in the execution of the order of sale are shown, and the objections are overruled and the sale confirmed held: (a) that the court had the power to ratify and approve such irregularities and did so by the order confirming the return; (b) that the objections and the motion to confirm were largely addressed to the discretion of the trial court, and in the absence of an abuse of such discretion the appellate court will not be inclined to disturb the order of confirmation.
Commissioners' Opinion, Division No. 2. Error from District Court, Tulsa County; Conn Linn, Judge.
Action by the First National Bank of Tulsa against the Oklahoma Union Traction Company in which the Colonial Trust Company and others intervened. Judgment against the Oklahoma Union Traction Company, and from an order confirming a sale made by the receiver, the First National Bank, the Traction Company and Anna B. Small appeal. Order affirmed.
Gregg & Martin, of Tulsa, for plaintiffs in error.
Biddison & Campbell, of Tulsa, for interveners.
A. A Small, in pro. per.
This appeal presents for review an order of the trial court denying a motion to vacate an order of sale, and an order overruling a motion to vacate the sale, and an order confirming the return of sale made by the receiver under the order first complained of.
A brief history of the lawsuit is as follows: On the 9th day of December, 1911, the First National Bank of Tulsa commenced an action in the district court of Tulsa county against the Oklahoma Union Traction Company, to collect a promissory note for the sum of $6,918, bearing date of September 21, 1911, due one day after date with interest at 10 per cent. per annum from date until paid, and to foreclose a mortgage given by the Oklahoma Union Traction Company to secure the payment thereof upon "all of the property, real, personal and mixed of this corporation, situated in Tulsa county, Oklahoma, together with all of its franchises, rights, privileges, roads, roadbed, equipment, rolling stock, power station, dynamo, motor, lines, wires, posts, lands, leasehold, tools, rents, issues and profits, rights of way, easements, furniture, and all other property of every kind, character and description, and situated in said county, now belonging to this corporation as security to protect said note." On the same day the plaintiff in the action made application to the court for the appointment of a receiver to take charge of the mortgaged property, and upon a hearing a receiver was appointed "to take charge of all the property, goods, moneys and effects of the said defendant, and to preserve the same until the further order of this court or of the judge thereof." The receiver qualified and took charge of the property on the 11th day of December, 1911. On the 12th day of December, 1911, the Colonial Trust Company filed application to be allowed to intervene in said cause on the ground that it held 30 $1,000 bonds of the Oklahoma Union Traction Company issued by said company on the 23d day of May, 1910, and secured by a mortgage or trust deed on the same property described in the mortgage to the First National Bank of Tulsa, and sought to be foreclosed in said action. The application was allowed and the Colonial Trust Company filed its answer to the plaintiff's petition and its cross-petition, setting up its claim by reason of the bonds held by it and the trust deed given to secure the same, alleging that its debt was a first and prior lien on the property, and asked that the court so decree, and that it have judgment for the amount of its debt, interest, and attorney's fee, and a decree of foreclosure of its lien, and a sale of the property. On the 27th day of April, 1914, the Central State Bank of Kiefer filed a motion for leave to intervene in said cause on the ground that it owned 5 $1,000 bonds issued by the Oklahoma Union Traction Company at the same time, and being a part of the series of bonds issued to the Colonial Trust Company, and secured by the same trust deed upon the same property, and alleging that the same was a first and prior lien on the property, and asked for judgment for the amount of its debt and for foreclosure of its lien, and the sale of the property, to satisfy the same. It was ordered that the request of intervention should be granted. Answer and cross-petition by the Kiefer Bank was filed in said cause.
In response to a contention made in the case that the Colonial Trust Company and the Kiefer Bank had no right under the trust deed to maintain the suit for foreclosure, and that the trustee alone could maintain such action, on the 27th day of May, 1914, John A. Oliphant, the trustee named in the trust deed given to secure the bonds issued, made application and was allowed to intervene in the cause. In the brief petition filed by the trustee he alleges that he is the trustee named in the trust deed given to secure the bond issue set out in the answer and cross-petition of the Colonial Trust Company, and the Central State Bank of Kiefer, and that the allegations of the answer and cross-petition of the Colonial Trust Company and the Central State Bank of Kiefer, were true, and that he adopted the same and made them a part of his petition, and prayed for the same relief. On the 1st day of June, 1914, the Interurban Construction Company filed its petition in intervention, claiming an indebtedness against the Oklahoma Union Traction Company of $11,484. On the same day Anna B. Small filed a motion in said cause to be allowed to intervene therein, which motion was granted, and on the 2d day of June, 1914, her petition in intervention was filed, setting up a claim of an indebtedness of $20,000, evidenced by a promissory note executed by the Oklahoma Union Traction Company and secured by mortgage on the same property described in the mortgage to the First National Bank. The prayer of her petition was for judgment in the amount of her debt, for foreclosure of her lien, and the sale of the property to satisfy the same.
After these several petitions of intervention had been filed, answers and replies were filed by the respective parties and issues joined and the cause was set down for trial on the 23d day of June, 1914. On the day of the trial the defendants, the Oklahoma Union Traction Company, Anna B. Small, and George B. Small demanded in writing a trial by jury upon the questions of fact arising upon the issues formed by the pleadings of the plaintiff and the intervening defendants. It does not appear from the record that this demand was acted upon, but the record shows that the Colonial Trust Company, the Central State Bank, and John A. Oliphant, trustee, on that day in open court made the following statement:
"Mr. Biddison: Come now the interveners, the Colonial Trust Company, the Central State Bank of Kiefer, and John A. Oliphant, trustee, and dismiss without prejudice their petition so far as they claim any personal judgment against the defendant the Oklahoma Union Traction Company, and stand upon their pleadings as and for the foreclosure of the mortgage given to secure the bonds described in their petition."
Thereupon the cause proceeded to trial before the court, and judgment was rendered for the First National Bank of Tulsa for the amount of its note, interest, and attorney's fee, and for the foreclosure of its mortgage. Judgment was also rendered in favor of Anna B. Small against the Oklahoma Union Traction Company for the amount of her claim, interest and attorney's fees, and for the foreclosure of her mortgage and the court further ordered that the lien ofAnna B. Small was co-ordinate with that of the First National Bank of Tulsa. The Colonial Trust Company, Central State Bank of Kiefer, and John A. Oliphant offered evidence to establish the amount of the indebtedness held by each, and the amount of the lien, that is, the bonds held by each of the parties to the trust deed, all of which was objected to on the ground that the petition of said interveners did not state a cause of action. This objection was overruled and also a demurrer to the evidence, and the court found that the bonds held by the Colonial Trust Company amounted to $36,450, and that held by the Central State Bank of Kiefer was $6,075, and that said indebtedness was a first lien upon the property described in the mortgage to the bank, and the property was ordered sold, and the proceeds of sale applied first in the payment of such lien. The decree also provided that the property covered by the trust deed should be sold in parcels, and that upon præcipe filed by either the Colonial Trust Company or John A. Oliphant, as trustee, the receiver should proceed to sell all the property except the real estate, without appraisement and in the manner provided by law for the sale of real estate taken under execution;...
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