Hamra v. Fitzpatrick

• Decision Date: 18 January 1916
• Docket Number: Case Number: 5859
• Citation: Hamra v. Fitzpatrick, 154 P. 665, 55 Okla. 780, 1916 OK 67 (Okla. 1916)
• Court: Oklahoma Supreme Court
• Parties: HAMRA et al. v. FITZPATRICK et al.

1916 OK 67

154 P. 665

55 Okla. 780

HAMRA et al. v. FITZPATRICK et al.

Case Number: 5859

Supreme Court of Oklahoma

Decided: January 18, 1916

Syllabus

¶0 1.APPEARANCE--General Appearance-- Overruling of Special Appearance--Waiver of Error.After a special appearance, objecting to the jurisdiction of the court over the persons of defendants, has been overruled, defendants, by filing an answer alleging that they have been damaged by the granting of a temporary injunction, and praying judgment against plaintiffs for the amount of such damages, enter a general appearance and waive any error in overruling such special appearance.

2.NEW TRIAL--Power to Grant--Motion.It does not constitute error for a trial court at the same term at which judgment is entered to grant a new trial on its own motion.

3.HOMESTEAD--Exemption--Purchase Money.Under the provisions of sections 2and3, art. 12, Constitution, andsection 3346,Rev. Laws 1910, the purchasers have no homestead exemption against levy and sale under execution to satisfy a judgment for a part of the purchase price of the tract of land in which the exemption is claimed, even though the vendor may have lost or waived his vendor's lien upon such land.

4.HUSBAND AND WIFE--Conveyance to Husband and Wife.Where a tract of land has been conveyed in fee to husband and wife, the conveyance indicating no intent to create an estate in joint tenancy, they hold as tenants in common.

5.HOMESTEAD--Exemption--Purchase Money--Husband and Wife--Tenants in Common.Where the vendor of a tract of land conveyed by him to husband and wife as tenants in common has judgment for the balance unpaid of the purchase price against the husband alone, neither the husband nor the wife can claim a homestead exemption in such land to prevent the levying upon and sale under execution of the interest of the husband in said land to satisfy such judgment.

McDougal, Lytle & Allen(Robert Wheeler, of counsel), for plaintiffs in error.

P. O. Cassidy and E. D. Reasor, for defendants in error.

RUMMONS, C.

¶1 This action was commenced in the district court of Pottawatomie county by the defendants in error, hereinafter styled the plaintiffs, to restrain the plaintiffs in error, hereinafter styled the defendants, from selling certain real estate in Oklahoma county under an execution issued out of the district court of Pottawatomie county upon a judgment in favor of the defendant Hamra and against the plaintiffJoseph E. Fitzpatrick.The defendants filed a special appearance, objecting to the jurisdiction of the district court of Pottawatomie county over their persons, and over the subject-matter of the action, which being overruled, they excepted, and answered the petition of the plaintiffs setting up facts to defeat plaintiffs' recovery and also setting up a claim for damages against the plaintiffs in the sum of $ 402.50 because of the wrongful issuing of a temporary injunction in the case, and praying judgment against the plaintiffs for that sum.The plaintiffs replied to this answer.The cause was tried to the court, resulting in a judgment finding that the judgment the execution of which was sought to be restrained was for a part of the purchase price of the tract of land in Oklahoma county, that said tract of land was the homestead of plaintiffs, and exempt from levy and sale under the judgment recovered by the defendant Hamra, and granting plaintiffs a perpetual injunction against the defendants restraining them from levying upon or selling the said tract of land to satisfy the judgment of defendant Hamra.The defendants in due time filed their motion for new trial, to the overruling of which they excepted, and appeal to this court.The first assignment of error urged by defendants complains of the overruling of their special appearance.Whatever error there may have been in the overruling of their special appearance has been waived by the defendants.The action of injunction being a transitory action, defendants could not object to the court's jurisdiction of the subject-matter of the action, and their special appearance could only go to the jurisdiction of the trial court over their persons.When the defendants sought to counterclaim against the plaintiffs for damages because of the issuing of a temporary injunction, as they did in their answer, they submitted themselves to the jurisdiction of the court, and waived any error the court may have committed in overruling their special appearance.Austin Manufacturing Co. v. Hunter, 16 Okla. 86, 86 P. 293;Wm. Cameron & Co. v. Consolidated School District, 44 Okla. 67, 143 P. 182;Commonwealth Cotton Oil Co. v. Hudson (not yet officially reported)161 P. 535.It seems that there had been a former judgment in this cause rendered, and that the trial court on its own motion granted plaintiffs a new trial at the same term of court at which such judgment was rendered.The defendants assign this ruling of the court as error upon the authority of Long v. Board of County Commissioners, 5 Okla. 128, 47 P. 1063.The holding of the territorial Supreme Court in that case as to the granting of a new trial by the court upon its own motion during the term has been expressly overruled by this court in the case of Todd v. Orr, 44 Okla. 459, 145 P. 393.So the trial court committed no reversible error in granting the new trial of which defendants complain.The only remaining assignment of error presents the most serious question in this case, which is whether the tract of land in Oklahoma county, being occupied by plaintiffs as their homestead, was exempt from levy and sale under execution upon the judgment of defendant Hamra against the plaintiffJoseph E. Fitzpatrick; it being admitted that such judgment was for a part of the purchase price of said tract of land.Section 2, art. 12, of our Constitution provides:

"The homestead of a family shall be and is hereby protected from forced sale for the payment of debts, except for the purchase money therefor or a part of such purchase money."

¶2Section 3, art. 12, of the Constitution says:

"Provided, that no property shall be exempt for any part of the purchase price while the same or any part thereof, remains in the possession of the original vendee, or in possession of any purchaser from such vendee, with notice."

¶3Section 3346,Rev. Laws 1910, provides:

"The exemption of the homestead provided for in this chapter shall not apply where the debt is due: First, for the purchase money of such homestead or a part of such purchase money."

¶4 It is contended by the defendants that under the constitutional and statutory provisions above quoted the plaintiffs had no homestead exemption in the tract of land against the judgment of the defendant Hamra.On the other hand, the plaintiffs contend that the homestead is exempt as to the judgment for the reason that at the time the defendant Hamra conveyed the tract of land to plaintiffshe waived his vendor's lien for the unpaid purchase money by taking other security therefor, and for the further reason that the title to the tract of land was conveyed to plaintiffs, who are husband and wife, and stands in the names of both of them, and that therefore it cannot be sold while occupied by them as a homestead to satisfy the judgment against the plaintiffJoseph E. Fitzpatrick.We have examined the authorities cited in the briefs of counsel for both plaintiffs and defendants, and have made some investigation into other authorities, and from the view we take of the case it is unnecessary to determine whether or not the defendant Hamra had waived his vendor's lien upon the tract of land sought to be sold by him upon execution.The homestead exemption provisions of most of the states contain the same exception as to the purchase price, or any part thereof, of the homestead; and it seems that the overwhelming weight of authority is to the effect that the homestead exemption does not apply as to a judgment for the purchase price thereof, or any part thereof, independently of any question as to the right of the holder of the judgment to a vendor's lien upon the land.In the case of Greer v. Oldham, 10 Ky. L. Rep. 889, 11 S.W. 73, the Court of Appeals of Kentucky says:

"A vendee, in part payment of the purchase money, executed his note to a creditor of the vendor.Held that, while the holder of that note is not entitled to a lien, yet as it was executed for a part of the purchase money, the

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