Harmon v. Nofire
| Citation | 131 Okla. 1,267 P. 650,1928 OK 327 |
| Decision Date | 15 May 1928 |
| Docket Number | Case Number: 15087 |
| Parties | HARMON v. NOFIRE et al. |
| Court | Supreme Court of Oklahoma |
¶0 1. Covenants--Action Against Grantee in Warranty Deed--Nature of Statutory Notice to Grantors of Suit.
The written notice which may be served on grantors or other persons bound by a warranty in a deed conveying land mentioned in sections 5262 to 5265, inclusive, C. O. S. 1921, is not a writ or process within the meaning of article 7, sec. 19, of the Constitution of this state, nor is it process as referred to in section 862, C. O. S. 1921.
2. Same--Effect of Notice as Making Grantors Parties to Suit.
Where an action is brought against a grantee to recover land conveyed to him by warranty deed, and he causes to be served on previous warrantors, in his chain of title, a written notice that such suit has been brought, and requests them to defend his title under the procedure provided for in sections 5262 to 5265, supra, such warrantors are thereby, in effect, as between them and the grantee, made parties to the action, and charged in law with notice of all subsequent proceedings in the case, and the grantee is not required to file a cross-petition over against them before judgment is entered against him in order to preserve his right to recover in the same action.
3. Same--Recovery Against Grantee--Remaining Question of Grantors' Liability to Grantee--Retained Jurisdiction--Validity of Postponement of Hearing.
Where a grantee has served the notice on his warrantors in accordance with the foregoing statutes of this state, notwithstanding the fact that such warrantors have failed to appear in the case, upon recovery by the plaintiff in the action, and if at the same time the case is not determined as between the grantee and the warrantors, they have notice of such fact, and that this remaining question in the case may be heard by the court at any time thereafter during the same term. And no order postponing this phase of the case to a subsequent date is necessary for the court to retain jurisdiction of such question. However, in this case the question was eliminated by an order of the court, made at a subsequent date of the term, finding that the cause had been postponed until that date, which was in effect an order of postponement nunc pro tunc from the former date, and authorized the court at that time to hear the remaining question.
4. Descent and Distribution -- Claims Against Estate--Enforcement Against Heirs--Liability for Breach of Covenant of Warranty of Ancestor.
Under the common law, an heir was liable upon the obligation of his ancestor upon existence of two conditions: First, that the heir be expressly named as being bound, and this rule was applicable to a warranty deed; and, secondly, that the heir should receive assets by descent sufficient to meet the demand of the obligation. However, no such rule prevails in this state, for the reason that by section 1256, C. O. S. 1921, all property of a decedent, except the homestead or certain personal property which may be set aside to the wife and minor children, is chargeable with payment of the debts of the deceased, and in legal effect impressed with a lien for the payment of these debts. There is no distinction as to the liability of an heir arising from the breach of the covenant of warranty of his ancestor and any other debt owing by such ancestor at the time of his death. The liability accrues against such heir, alone, by his receiving property charged in law with the payment of the ancestor's debts.
5. Same--Covenants--Breach of Warranty--Necessary Proceeding for Evicted Grantee to Secure Judgment Against Heirs of Deceased Grantor.
Sections 5262 to 5265, C. O. S. 1921, inclusive, provide a special procedure for recovery by warrantees against their grantors or other persons bound to them by warranties. An heir of a deceased person is not bound by the warranty of his ancestor within the meaning of the foregoing statutes, and a notice served on him to defend, as provided in 5263, supra, does not authorize a court to enter judgment against him, the heir, for damages on breach of the covenant. Proper pleading must be filed by the evicted grantee against the heir, and service of summons be had as provided in the general Code of Civil Procedure, and a judgment entered against the heir without this is void.
6. Same--Damages to Evicted Grantee as Provable Debt Against Estate of Grantor--Enforcement Against Heirs or Devisees by Suit in Equity Where Estate Closed.
Where judgment is had against a grantee for recovery of land conveyed to him by warranty deed of a deceased grantor, the amount of such damage, constituting the judgment of recovery, is a provable debt against the estate of the decedent. If no administration has been had on the estate of the warrantor, the evicted grantee, as a creditor, has a right to have one appointed and present his claim. If the administration on the estate of the deceased warrantor be pending at the time of the recovery against the warrantee, the warrantee may present his claim within 30 days from the date of the judgment against said estate, under section 1234, C. O. S. 1921, though the time to present claim has expired. But if administration has been had, and the estate closed, and property belonging to the estate has been distributed to heirs, or devisees, relief may be afforded the warrantee by suit in equity in the district court against such heirs or devisees to compel them to refund to the grantee so much of what they have received as shall be sufficient to satisfy his damage.
Commissioners' Opinion, Division No. 1.
Error from District Court, Sequoyah County; J. T. Parks, Judge.
Action by Joshua Nofire et al. against T. F. Harmon et al. Judgment for plaintiff George Killer against defendant Harmon, and from an order of the district court setting aside a judgment subsequently rendered in favor of Harmon against Lubia Hines, India Weems, nee Hines, L. S. Hines, and Freeda Clair Hines, as heirs at law of R. W. Hines, deceased, and W. R. Gragg and W. E. Matthews, Harmon brings error. Affirmed as to the Hines heirs, and reversed as to defendants Gragg and Matthews.
Allen & Jarman and T. M. McCombs, for plaintiff in error.
W. L. Curtis, for defendants in error.
¶1 This case was tried upon the second amended petition filed by certain plaintiffs on March 18, 1921, against T. F. Harmon and another defendant to recover an undivided interest in a tract of land as the heirs of Annie Guineahead, deceased, to whom the land was allotted as a member of the Cherokee Tribe of Indians.
¶2 On the 5th day of April, 1921, the defendant Harmon caused to be served by the sheriff of Sequoyah county, Okla., a notice on the parties therein named, which notice is of such importance in the consideration of this cause that we deem it necessary to set the same out in full, as follows:
"To L. C. Moore, administrator of the estate of R. W. Hines, deceased, Lubie Hines, India Weems, nee Hines, L. S. Hines, and Freeda Clair Hines, heirs at law of said R. W. Hines, deceased; and to W. R. Gragg, J.
¶3 E. Patrick, and W. E. Matthews:
¶4 On the 13th day of June, 1921, Harmon filed his amended answer to the amended petition of the plaintiffs, in which he alleged that he was the owner of the lands by regular chain of title from the heirs of said deceased Indian allottee. He stated the names of the heirs, and alleged that they conveyed to W. H. Brackett, and that by regular chain the title came to W. E. Matthews, who conveyed the land by warranty deed to him.
¶5 The case proceeded to trial on the 13th day of June, 1921, and on the 15th day of said month, the court entered judgment for George Killer, one of the plaintiffs, against Harmon for an undivided one-fourth interest in the land. There is nothing in this decree showing that any phase of the case was passed for further consideration.
¶6 On June 16, 1921, the defendant Harmon filed in this case a petition in which he designated the parties as follows:
"T. F. Harmon, Plaintiff, v. W. R. Matthews, W. R. Gragg, L. C. Moore, Administrator of the Estate of R. W. Hines, Deceased, and Lubie Hines, India Weems, nee Hines, L. S. Hines, and Freeda Clair Hines, heirs of said R. W. Hines, Deceased Defendants"
¶7 In this petition he alleged he was one of the defendants in the original cause of action, and that by judgment of the court on June 15, 1921, he was evicted from an undivided one-fourth interest in the land by one of the plaintiffs, George Killer. He further alleged that he bought the land by warranty deed from W. E. Matthews and wife; that Matthews bought from J. E. Patrick and wife, and Patrick bought from W. R. Gragg and wife; that Gragg bought from R. W. Hines, who died prior to the filing of the action, and left surviving, as his sole heirs at law, Lubie Hines, India Hines, then Weems, L. S. Hines, and Freeda Clair Hines, and that L. C. Moore was the duly appointed, qualified, and acting administrator of the estate of the said R. W. Hines; that by virtue of the judgment of eviction of him, the said T. F. Harmon, declaring George Killer to be the owner of an...
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