Green v. Wahl
| Decision Date | 22 December 1925 |
| Docket Number | Case Number: 16004 |
| Parties | GREEN et al. v. WAHL et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Limitation of Actions--Recovery of Land Sold by Judicial Sale--Validity of Original Judgment--Effect.
Paragraph 1 of section 183, Comp. St. 1921, in creating the limitation against the recovery of real estate sold on execution in a judicial proceeding, after five years from the date of the filing of the sheriff's deed to the purchaser, does not distinguish between void and voidable judgments which result in the sale and conveyance of the land.
2. Same--Defective Process in Attachment Immaterial.
The limitation created in paragraph 1 of section 183, supra, runs in favor of a sheriff's deed conveying real estate to the purchaser of the property sold at a judicial sale upon special order issued in an attachment proceeding. The right of the defendant in the attachment proceeding and those claiming under him to recover land sold in the attachment proceedings will be barred within five years from the date of the filing of the deed, although the affidavit to obtain service upon the defendant by publication and the publication notice to the defendant are so defective as to render the judgment void against the defendant in the main action and in the attachment proceeding.
3. Same--Judgment Sustained.
Record examined; held, to be sufficient to support judgment in favor of plaintiff and Farmers National Bank of Tupelo, defendant.
McKeown & Green, for plaintiffs in error.
Keaton, Wells & Johnston and C. T. Rawls, for defendant in error Wahl.
Robt. Wimbish and W. C. Duncan, for defendant in error Farmers National Bank of Tupelo.
¶1 The First National Bank of Coalgate commenced its action for debt against John H. Morgan. An attachment order was issued out of the cause and levied upon real estate owned by the defendant. Service was had in the action upon the defendant by publication based upon an affidavit setting forth that the action arose upon a contract wholly within the state of Oklahoma, and that the defendant was a nonresident of the state, and that service could not be had upon the defendant in the state of Oklahoma. The trial of the cause on December 16, 1913, upon service by publication, resulted in a judgment against defendant for recovery of the debt and sustaining of the attachment. The real estate levied upon in the attachment proceeding was sold on special order of sale to Byrne Statler. The sheriff's deed conveying the property to the purchaser was filed for record in the county clerk's office on April 8, 1914. Byrne Statler conveyed the property by his warranty deed to E. D. Abney on September 12, 1918. E. D. Abney joined by his wife executed and delivered a mortgage upon the real estate to secure certain indebtedness to Gum Bros. on August 30, 1919, E. H. Wahl, who is plaintiff in this action, became owner of the note and mortgage for a valuable consideration before maturity. E. D. Abney joined by his wife executed and delivered their real estate mortgage to the Farmers National Bank of Tupelo, on January 24, 1920, to secure certain indebtedness owing by the mortgagors to the bank. J. H. Morgan undertook to convey the same real estate and premises by his warranty deed to C. F. Green on April 14, 1920. E. D. Abney and his grantor had been in the actual possession of the premises at the time of the conveyance to Green from the date of the sheriff's deed, holding and claiming the property under the sheriff's deed adversely to any claim of John H. Morgan. John H. Morgan had not been in possession of the premises nor had he taken rents or profits therefrom since the sale of the property in the attachment proceeding. E. H. Wahl commenced his action in the district court of Coal county on February 8, 1923, to foreclose his mortgage against E. D. Abney and wife. The Farmers National Bank of Tupelo, C. F. Green, and John H. Morgan, with other parties, were joined as defendants in the action. The Farmers National Bank of Tupelo by its cross-action prayed for the foreclosure of its mortgage. C. F. Green by his cross-action set forth that he was the legal and equitable owner of the land through and by the conveyance from John H. Morgan; that the deed from Morgan bearing date as of April 14, 1920, conveyed the legal and equitable title in the property to C. F. Green, and that E. D. Abney was unlawfully withholding the possession thereof from the defendant Green; that the latter was entitled to the immediate possession of the land involved in the action. The defendant Green supposes his right of possession as the legal and equitable owner thereof, to rest upon the fact that the judgment in favor of the First National Bank of Coalgate for its debt and judgment sustaining the attachment of the real estate against the defendant Morgan were void. The defendant further sets forth in his cross-action that the affidavit filed in the action against Morgan, upon which it was sought to obtain service upon the defendant by publication, and the notice of publication based thereon, were so defective as to render the judgments for the debt and sustaining of the attachment proceedings void. The action of the defendant Green was in ejectment for the possession of the property, and his right to possession was founded entirely upon the deed from Morgan to him. Therefore, the defendant pursued his remedy in the law action of ejectment for the possession of the property. The plaintiff and interested defendants pleaded the five-year limitation provided by paragraph 1 of section 183, C. O. S. 1921, against defendant Green's action in ejectment for possession of the real estate. The reply of the plaintiff and interested defendants set forth that more than five years had elapsed since the date of filing the sheriff's deed for record in Coal county to Statler, as purchaser of the property resulting from the attachment proceeding, and that the right of Morgan to recover the land sold under the execution was barred at the time he conveyed the property to Green on April 14, 1920.
¶2 J. H. Morgan filed his application in the case of the First National Bank of Coalgate against him, to set aside the judgment rendered in that cause for debt and sustaining the attachment proceeding, on the ground that the affidavit made by the plaintiff to obtain service by publication, and the publication notice thereon, were so defective as to render such judgment void. The notice of the application to set aside the judgment was served upon the First National Bank of Coalgate, and Byrne Statler, who purchased the real estate at the judicial sale. However, Statler had already conveyed the property to E. D. Abney in 1918. The application to set aside the judgment, as it affected the interest of the First National Bank of Coalgate and Byrne Statler, was overruled in the latter part of 1920. John H. Morgan appealed from the ruling of the court in denying the application to this court, in which the First National Bank of Coalgate and Byrne Statler were named as defendants in error. The plaintiff in error filed his brief in the cause on appeal, but default was made on the part of the bank and Mr. Statler in filing their answer brief. The action of the trial court in denying the application was reversed in the case of Morgan v. First National Bank of Coalgate, 96 Okla. 86, 219 P. 894. The reversal was based upon the proposition that plaintiff in error's brief reasonably tended to support the assignments of error for reversal, and that the defendants in error had failed to file brief. Mandate went to the lower court and was spread of record. Thereafter, and on March 24, 1924, the motion to set aside the judgment as it affected the interest of the First National Bank and Byrne Statler again came on for trial. The court sustained the motion and set the judgment aside in the case of First National Bank against J. H. Morgan, in so far as it affected the interest of the defendant and Byrne Statler. No appeal was had from the order of the court sustaining the application to set aside the judgment. Defendant Green filed a supplemental cross-petition after the reversal of the case of Morgan v. First National Bank, wherein it was set forth that the opinion in the case of Morgan v. First National Bank was res adjudicata, and barred the plaintiff and defendant Abney and the Farmers National Bank of Tupelo from claiming any rights in the property through the judicial sale had in the case of First National Bank v. Morgan. We may observe that the opinion of this court in the Morgan Case on appeal did not do anything more than to place the judgment in the First National Bank v. Morgan in the status it occupied at the time the application was filed to set the same aside. The defendant Green did not plead the judgment of the court setting the motion aside on March 24, 1924, in bar of the plaintiff and defendants' rights in the property.
¶3 Green introduced in evidence a copy of the journal entry bearing date as of March 24, 1924, vacating the judgment. The following proceedings were had in connection with the introduction of the copy of entry:
¶4 The proceedings had do not show that the plaintiff and defendant Farmers National Bank of Tupelo objected to the introduction of the copy of judgment as evidenced in direct language. However, so far as this record is concerned, we will treat the evidence as being received without objection by adverse parties, and the cross-petition of Green amended so as to plead this judgment as a bar. The following proceedings were had in relation to making J. H. Morgan a party to the case at the close of the evidence:
...
To continue reading
Request your trial