Garey v. Rufus Lillard Co.
| Decision Date | 20 November 1945 |
| Docket Number | 30981. |
| Citation | 165 P.2d 344,196 Okla. 421,1945 OK 305 |
| Parties | GAREY v. RUFUS LILLARD CO. et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Jan. 29, 1946.
Appeal from District Court, Pottawatomie County; J. Knox Byrum Judge.
Action by Rufus Lillard Company against Yorkan Production Corporation and others to foreclose materialman's lien and obtain appointment of receiver, wherein Paul Brown was appointed receiver, and Eugene L. Garey filed answer and cross-petition for foreclosure of real estate mortgages and adjudication of laborers' and materialmen's liens. From a judgment foreclosing the mortgages and directing priority, and an order requiring application of funds in the hands of the receiver upon the mortgage indebtedness, Eugene L. Garey appeals.
Modified and, as modified, affirmed.
Syllabus by the Court.
1. A mortgagee in a mortgage given to secure a specified sum and any subsequent advances made thereunder, but who is under no obligation to make any future advances, cannot, after other liens have attached to the mortgaged property, loan additional money to the mortgagor and take second and third mortgages on the property and thereafter have the sums secured by said mortgages decreed a first lien on the property on the theory that they represent advancements made under the first mortgage and thus exclude the intervening liens; but in such case said mortgagee will be deemed to have made additional loans upon the security of the mortgages given for that purpose and such sums will be treated as junior encumbrances.
2. The mere fact that the Federal Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq., providing for payment for overtime labor performed by a workman engaged in interstate commerce and for certain penalties, was in existence and in operation at the time a contract of employment in interstate commerce was entered into between a workman and his employer specifying the wages to be paid, is not sufficient to create an implied contract within the meaning of the lien statutes to pay such overtime or penalties, and the workman is not entitled to a laborer's lien therefor. 42 O.S.1941 § 144; 15 O.S.1941 § 133. Pace et al. v. National Bank of Commerce of Tulsa, 190 Okl. 503, 125 P.2d 178.
3. In an action by a lien claimant to impose a statutory lien where the record discloses that the lien statement was not filed within the time specified in the statute, and the record fails to disclose an excuse for the failure to file the lien statement within the statutory time, held that the lien claimant is not entitled to the statutory lien. Pacific Petroleum Co. v. Sunbeam Oil Co., 176 Okl 293, 54 P.2d 1054.
4. Liens of materialmen perfected in the manner provided by 42 O.S.1941 § 144, are properly adjudicated prior to subsequent mortgage liens.
5. Generally, in the case of two or more debts and a payment made without specific directions, the creditor may make application on either debt. And when such application is made and upon notice is acquiesced in by the debtor it is substantially the same as if such application had been directed by the debtor in the first instance.
6. In the absence of showing to the contrary, the Supreme Court will presume that the trial court performed its duty in an action for the collection of intangible obligations as defined in 68 O.S.1941 § 1515, and rendered judgment only after the party seeking collection had satisfied the requirements of the statute as to allegations and proof with reference to assessment and payment of taxes. Correll, Adm'r, v. Holt, 191 Okl. 622, 132 P.2d 953.
7. Where a mortgagee of producing oil lease, pursuant to decree of foreclosure of his mortgages and other liens, has purchased the same and thereafter, requests the court for payment of moneys in the hands of the receiver which had been collected by such receiver from the sale of oil runs the court may not properly direct that payment of said sum be made to the mortgagee upon condition that it be applied on liens that by statute do not attach to the oil itself, and such an erroneous order will be modified on appeal by eliminating such stated condition.
Edward Howell, of Oklahoma City, M. I. Hauser, of New York City, and J. D. De Bois, of Oklahoma City, for plaintiff in error.
Robert O. Brown, of Duncan, Reily & Reily and Wyatt, Wyatt & Green, all of Shawnee, Henry S. Griffing and John A. Johnson, both of Oklahoma City, and Chas. E. Wells, of Shawnee, for defendants in error.
This is an appeal by Eugene L. Garey from a judgment of the district court of Pottawatomie County rendered on November 17, 1941 which foreclosed certain real estate mortgages held by the said Garey and liens of numerous laborers and materialmen and adjudged priority thereof and directed sale of the premises and from an order made by said court on April 20, 1942, directing the application of funds in the hands of receiver to the payment of the amount adjudged due said Garey on a first mortgage.
The facts material to the issues here to be determined will be briefly stated. On March 12, 1940, Rufus Lillard Company instituted an action in the district court of Pottawatomie County against Yorkan Production Corporation et al., to foreclose a materialmen's lien upon an oil and gas mining lease and leasehold situate in said county and to obtain the appointment of a receiver for all of the properties of said corporation. The court upon the same day on answer of Yorkan Production Corporation admitting its insolvency and requesting the appointment of receiver, appointed Paul Brown, its attorney and secretary, as receiver of said corporation. The receiver reported that there were a number of claims of creditors which had been filed and that an order of reference should be made in the matter, and thereupon the court appointed the Honorable Charles B. Hickok Referee to hear and report the evidence in connection with all claims against the Yorkan Production Corporation. The Yorkan Production Corporation owned, in addition to properties in Pottawatomie County, properties in other counties, including two properties in Lincoln County known as the Henry Tipken and Louis Tipken leases, and on which Eugene L. Garey was the holder of record of three mortgages and Edmondo Gerli the holder of another mortgage.
Rufus Lillard Company on May 1, 1940, filed an amended petition in which it asserted a lien on said leases in the sum of $1,313.68, and therein made Eugene L. Garey and other parties defendants to the action pending in the district court of Pottawatomie County. On August 19, 1940, Eugene L. Garey, without questioning the validity of any of the proceedings theretofore had, filed an answer and cross-petition in said action in which he sought a foreclosure of certain real estate mortgages which he held upon the properties in Lincoln County. Other parties claiming liens on said property either by cross-petition or petitions in intervention sought a foreclosure thereof. The parties appeared before the Referee and introduced evidence in support of their respective claims.
Eugene L. Garey offered in evidence a real estate mortgage for the principal sum of $35,000 which had been executed on August 22, 1939, and a mortgage for the principal sum of $8,000 which had been executed on October 12, 1939, and a mortgage in the principal sum of $10,000 which had been executed on November 20, 1939. Eugene L. Garey admitted that he had received pursuant to assignment and transfer orders which had been executed in pursuance of a provision in the mortgage of August 22, 1939, the sum of $10,375.85, but that he had applied $5,337.50 of said sum upon a prior claim for attorney fees and expenses which he had against the Yorkan Production Corporation at the time the first mortgage was executed. Garey sought a judgment on his first mortgage for the sum of $34,690 with interest thereon at ten per cent per annum from February 1, 1940, and attorney fees in the sum of $3,469 and also sought to have the balance due him on each of his subsequent mortgages be held first liens on the premises under the provisions in the first mortgage relating to advancements. The Yorkan Production Corporation did not contest the claim of Garey or of the lien claimants. The Referee submitted a revised report of his findings and therein found that the claims of certain individuals, hereinafter named, to laborer's liens upon the premises involved were superior to all of the mortgage liens of Garey and that liens of certain materialmen, hereinafter named, were superior to the second and third mortgages of Garey, but inferior to his first mortgage, and that Garey was not entitled to apply the $5,337.50 of the money which he had received from oil and gas production on the leases to his claim for attorney fees and expenses for services which had been rendered to the Yorkan Production Corporation prior to the execution and delivery of the mortgage of August 22, 1939.
On the revised report of the Referee, the court, after correction and amendment, entered a judgment foreclosing laborer's liens in favor of C. D. Parsons, O. H. Barnes, John Tipken S. Buchanan, C. A. White, Chaney Hawkins, W. C. Kennedy and L. L. Grimes, and decreeing the same to be prior and superior to the mortgage liens of Eugene L. Garey and materialmen's liens in favor of Rufus Lillard Co., Woods Machine Works; Bell Lumber Company, Lillard & Clark Well Servicing Company; Continental Supply Company, and Halliburton Oil Well Cementing Company, and decreeing the same to be junior and inferior to the liens of Garey's first mortgage and prior and superior liens to his second and third mortgages. The court also gave Garey judgment on his first mortgage for the sum of $29,352.50, with interest thereon at...
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