Hancock v. Youree

• Decision Date: 11 January 1910
• Citation: 106 P. 841,25 Okla. 460,1910 OK 13
• Parties: HANCOCK v. YOUREE et al.
• Court: Oklahoma Supreme Court

106 P. 841

25 Okla. 460, 1910 OK 13

HANCOCK v. YOUREE et al.

Supreme Court of Oklahoma

January 11, 1910

Syllabus by the Court.

Where on the foreclosure of a mortgage, the real estate covered thereby is ordered sold, and on order of sale is issued by the clerk, and the sale made within six months from the date of judgment without appraisement, the same is void, and error is not committed by the district court in setting aside the confirmation thereof, and recalling and canceling the sheriff's deed issued thereunder.

The ruling of a district court made upon a motion will not be set aside, where sufficient grounds appear in the record to sustain it, although not relied on by the party seeking relief.

Error from District Court, Pittsburg County; Preslie B. Cole Judge.

Action by James A. Youree, Receiver of the Bank of Kiowa, and another against the Merchants' & Planters' Gin & Milling Company. Judgment for plaintiffs, and on sale by the sheriff, H. G. Hancock purchased the property. From an order setting aside the sale, the purchaser brings error. Affirmed with instructions.

J. E Whitehead, for plaintiff in error.

Robert Tarter, for defendants in error.

DUNN J.

This case presents error from the district court of Pittsburg county. December 5, 1907, James A. Youree, as receiver of the Bank of Kiowa, and George E. Jackson, trustee in a mortgage for the Bank of Kiowa, recovered judgment in the district court of Pittsburg county against the Merchants' & Planters' Gin & Milling Company, together with a decree foreclosing a mortgage given to secure the indebtedness sued on. March 11, 1908, the clerk of the district court issued an order of sale directing the sheriff to sell the property mentioned in the judgment. In accordance therewith the sheriff duly advertised the same for sale, fixing the date thereof April 17, 1908, at which time he attended and at public auction sold the same to H. G. Hancock, plaintiff in error in this action, for $1,200. On the same day the sheriff reported his proceeding to the district court for confirmation, and on the 25th day of April, 1908, the court, after examining the return of the officer, and by consent of both plaintiff and defendant, approved the sale, and entered a decree finding that the sale was fairly held and conducted, and that the proceedings were had in accordance with the terms of the order of the sale. Whereupon the same was approved and confirmed, and the sheriff was ordered to execute to the purchaser a deed for the premises sold. Whereupon, on the same day, April 25, 1908, the sheriff of the county executed and delivered to H. G. Hancock his deed conveying the said property reserving on the same a vendor's lien. On the same day, James A. Youree, receiver of the Bank of Kiowa, appeared and filed his motion and affidavit reciting judgment, order of sale, and the sale of the property involved, and setting up that he was informed that certain other parties, naming them, had intended being present at the sale to bid on the property to be sold, and that they claimed they were precluded from being present at the same and bidding on the same by reason of the service of a certain notice that a suit would be filed by the defendant to set aside the judgment upon which the sale was based, and that by reason of being so notified they were under the impression that such sale would not be held, and therefore they were not present; that said parties represent that they would have bid more for said property than was offered therefor at the sale.

George E. Jackson made an affidavit that on the 16th day of April 1908, a notice signed by counsel for plaintiff in error was served upon him, as one of the plaintiffs, that suit would be filed to set aside the judgment rendered in the cause, and an injunction secured to restrain him and the receiver of the Bank of Kiowa and the sheriff of Pittsburg county from selling the property foreclosed on in said suit; that F. E. Pitt was in McAlester at the time for the purpose of bidding on said property, and was by reason of said notice informed that the sale would not be held; that it was the intention of affiant and the other parties to bid $1,500 for said property, and that they were prevented from bidding by reason of this notice. A copy of the notice purported to have been served upon plaintiffs is to the effect that the defendant had filed a petition in the case, asking that the court set aside the judgment theretofore rendered, as the same was rendered without jurisdiction. Three other parties filed corroborating affidavits to the foregoing. The purchaser filed his own, with corroborating affidavits averring that the parties were not prevented from bidding on account of the notice referred to, and the sale was had in accordance with the law, and that a fair and reasonable price was paid for the property. This affidavit was likewise corroborated by other witnesses. The court at the same term, on the consideration of these affidavits, found that the movants were without fault or negligence on their part, but through misrepresentation and deception were precluded and prevented from bidding on the...