Harding v. Gillett
| Decision Date | 09 November 1909 |
| Docket Number | Case Number: 560 |
| Parties | HARDING v. GILLETT et al. |
| Court | Oklahoma Supreme Court |
¶0 1. APPEAL AND ERROR--Subsequent Appeal--Law of the Case. As a general rule, a question decided by the Supreme Court on appeal becomes the law of the case in all its stages and is not open for consideration on a second appeal.
2. MORTGAGES--Redemption--Defenses--Fraudulent Conveyances. A conveyance by a mortgagor in fraud of creditors cannot be attacked or set up as a defense by the grantee of the purchaser at a void foreclosure sale in a proceeding by the grantee of the mortgagor and her assigns to redeem the premises after foreclosure decree is vacated, where such conveyance was made subject to the lien of the mortgage attempted to be foreclosed.
3. MORTGAGES--Foreclosure--Persons Bound by Decree--Fraudulent Conveyances. A decree of foreclosure against a mortgagor, who, before the institution of the foreclosure proceeding, had conveyed his title to a third person, although it be in fraud of creditors, does not foreclose the rights of the grantee if such grantee is not made a party to the proceeding by valid service.
4. APPEAL AND ERROR--Proceedings After Remand--Effect of Decision of Appellate Court. The conclusions of the Supreme Court of the territory upon questions arising upon appeal to that court from whose decision an appeal was taken to the Supreme Court of the United States, which was dismissed because the decision of the Supreme Court of the territory did not dispose of the merits of the case, are binding upon the trial court where the same questions arise in the subsequent proceedings in that court.
5. APPEAL AND ERROR--Review of Instructions Unnecessary. Where, on an issue of accounting, the court gives the jury instructions to control it in arriving at a general verdict and no general verdict is returned, but answers to special interrogatories propounded by the court are returned, and upon them and facts found by the court judgment is rendered, the appellate court will not review the instructions given to ascertain whether there was error therein when such instructions did not pertain to any of the special interrogatories propounded.
6. APPEAL AND ERROR--Harmless Error--Accounting--Omission of Items. Although it appears from the statement of the trial judge on rendering judgment on an issue of accounting that plaintiff in error was charged with an item not properly chargeable to him, if it appears from the uncontroverted evidence of the plaintiff in error that there were other items properly chargeable to him omitted by the court which, if considered, would have increased the amount of the judgment rendered against him, the judgment of the trial court will not be disturbed.
7. MORTGAGES--Redemption--Right of Owner of Equity--Sale of Premises. In a proceeding by the owner of the equity of redemption against a mortgagee in possession for an accounting and to redeem, where the value of the mortgaged premises is greatly in excess of the amount of the mortgage debt and the improvements placed on the premises by the mortgagee, and where the mortgagee has been in possession for 10 years, and the rents and profits have not decreased the amount of his claim, a decree fixing a time within which the owner of the right of redemption may redeem, and if redemption is not made within that time, ordering a sale, is not error.
8. CONSTITUTIONAL Law--Due Process of Law--Proceedings to Set Aside Foreclosure Decree. A motion to vacate and set aside a decree of foreclosure and sale thereunder was made by the owner of the equity of redemption upon whom no valid service was had in the foreclosure proceeding. The grantee of the purchaser at the invalid foreclosure sale (who was the mortgagee), who was served with the notice of such motion, appeared, filed his answer thereto denying the grounds of the same, made himself a party to the proceeding, filed his affidavit in opposition to the motion to vacate, and filed a motion to dismiss the motion to vacate upon the grounds it did not state facts sufficient to entitle the movant to relief, and actively conducted the defense against the motion, and appealed from the decree of the trial court vacating the foreclosure judgment to the Supreme Court of the United States. Held, a decree of the court which set aside the judgment of foreclosure and permitted the owner of the equity of redemption to appear, plead, and set up her defense did not deny to such grantee due process of law.
Error from District Court, Garfield County; H. G. McKeever, Judge pro tem.
Action by John Romig against Don A. Gillett and another, in which Daniel W. Harding intervenes. From a judgment, intervener brings error. Affirmed.
On March 11, 1896, John Romig filed a petition in the district court of Garfield county, in the territory of Oklahoma, against Don A. Gillett and Myrtle Gillett upon a promissory note executed by Don A. Gillett to John Romig on February 2, 1895, for the sum of $ 700, and to foreclose a mortgage given by Don A. Gillett to John Romig on 80 acres of land situated near the town of Enid, in Garfield county, to secure the payment of said note. Service upon the defendants Don A. Gillett and Myrtle Gillett was attempted to be had by publication notice. On December 18, 1896, judgment by default was rendered in said action in favor of the plaintiff against the defendant Don A. Gillett for the sum of $ 766.50, with interest and costs, and foreclosing the mortgage given to secure said indebtedness. By virtue of the judgment, an order of sale was issued, and the land covered by the mortgage sold at public sale by the sheriff to the plaintiff and mortgagee, John Romig, which sale was on the 1st day of March, 1897, confirmed by the court. The sheriff, under order of the court, on March 9, 1897, executed and delivered to John Romig his deed conveying said land. On the same day that the sheriff's deed was executed to Romig, Romig and his wife conveyed by warranty deed the land in controversy to Daniel W. Harding, plaintiff in error in this action,
On May 11, 1898, Myrtle Gillett, one of the defendants in error in this proceeding, filed in the district court of Garfield county her motion to set aside and vacate the judgment rendered in the foreclosure action, alleging four grounds therefor. John Romig, plaintiff, mortgagee, and purchaser at the foreclosure sale, and Daniel W. Harding, grantee of John Romig, appeared, filed and their motions denying the facts and statements set forth in the motion of Myrtle Gillett to vacate and set aside the judgment, and supported the same by their affidavits. Afterwards, in March, 1899, Romig and Harding filed their separate motions to strike from the files the motion and application of Myrtle Gillett to set aside and vacate the judgment. These motions were overruled and the motion of Myrtle Gillett sustained, and the judgment of foreclosure was by the trial court held to be void for want of jurisdiction, and all the proceedings under said judgment were declared to be wrongful and were set aside, and, upon motion of Myrtle Gillett, an order was made by the court restoring to her possession of the mortgaged premises. From the order of the trial court vacating the judgment and restoring Myrtle Gillett to the possession of said premises, an appeal was taken to the Supreme Court of the territory of Oklahoma by Romig and Harding, where the action of the trial court was affirmed. Romig v. Gillett, 10 Okla. 186, 62 P. 805. From the judgment of the Supreme Court of the territory of Oklahoma an appeal was taken by Romig and Harding to the Supreme Court of the United States, which court reversed the decree of the Supreme Court of the territory and remanded the case, with instructions to set aside the order of the trial court and direct the entry of one which, without disturbing the possession of Harding, would give to appellee Myrtle Gillett the right to appear, plead, and make such defense as, under the facts of the case and the principles of equity, she was entitled to.
On the 2d day of July, 1903, under the directions of the mandate from the Supreme Court of the territory, the trial court entered an order vacating the decree of foreclosure rendered on the 18th day of December, 1896, and granting to Myrtle Gillett the right to appear in the cause within 30 days after service of the order and plead and make her defense. On September 1, 1903, Myrtle Gillett filed her separate answer and cross-petition in the action, in which she alleges that on the 6th day of February, 1895, her codefendant, Don A. Gillett, for a good, valuable, and sufficient consideration, and by good and sufficient deed, sold and conveyed to her the fee-simple title to the premises in controversy, subject to John Romig's mortgage; that on the 24th day of September, 1900, she conveyed the fee-simple title to an undivided one-half of said premises to George P. Rush and Bruce Sanders, who are two of the defendants in error in this action, and that on the 29th day of March, 1902, she conveyed the fee-simple title to the remaining one-half of the premises to said Rush and Sanders, subject to Romig's mortgage; that there was then due her from Rush and Sanders, and unpaid, a balance of purchase money for the last-mentioned conveyance the sum of $ 250, for which she had no security except a vendor's lien upon the premises conveyed, and that, by reason of such facts, Rush and Sanders were necessary parties to the final determination of the controversy, and asked that they be made parties defendant and that she have judgment against them for the sum of $ 250, the balance due on the purchase price, and further asked that an accounting be had between Daniel W. Harding and herself, and that he be required to account to her for the rents and profits derived from the land, and that she have judgment against him for the excess of the amount due him upon the note and the...
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