Harris v. V. S. Cook Lbr. Co.

• Decision Date: 15 September 1931
• Docket Number: Case Number: 19606
• Citation: 3 P.2d 694,1931 OK 524,152 Okla. 7
• Parties: HARRIS et al. v. V. S. COOK LBR. CO.
• Court: Oklahoma Supreme Court

1931 OK 524

3 P.2d 694

152 Okla. 7

HARRIS et al. v. V. S. COOK LBR. CO.

Case Number: 19606

Supreme Court of Oklahoma

Decided: September 15, 1931

Syllabus

¶0 1. Mortgages--New Trial--Defendants in Mortgage Foreclosure Held Entitled to New Trial.

Record examined, and new trial ordered.

2. Same--Motion for New Trial not Required to Be Filed Within Three Days After Answers by Jury to Special Interrogatories.

It was not necessary in this case to file a motion for new trial within three days of the answers by the jury of the special interrogatories submitted to it.

3. Same--Answers to Special Interrogatories Merely Advisory to Court.

In this case the answers of the jury to the interrogatories were merely advisory to the court.

4. Same--New Trial Improperly Refused Where Answers to Interrogatories and Judgment not Sustained by Evidence.

The trial court stated that it did not believe that the answers to the interrogatories, on which judgment was rendered, were sustained by sufficient evidence. This court concurs in that view, and holds that the trial court should have awarded a new trial in that case and remands the case for that purpose.

Appeal from District Court, Oklahoma County; Sam Hooker, Judge.

Action by the V. S. Cook Lumber Company against V. V. Harris, Young Pepper, and others. Judgment for plaintiff, new trial denied, and defendants named appeal. Reversed and remanded.

John Halley, Ames, Cochran, Ames & Monnet, Everest, Dudley & Brewer, and C. E. Hall, for plaintiffs in error.

Rainey, Flynn, Green & Anderson, for defendant in error.

KORNEGAY, J.

¶1 This is a proceeding in error to review the judgment of the district court of Oklahoma county, Honorable Sam Hooker, judge. This case was started by V. S. Cook Lumber Company, a corporation, filing in that court on June 27, 1924, a suit to foreclose a second mortgage executed by E. Highfill to it on December 18, 1923, to secure a promissory note for $ 4,750 due June 18, 1924, signed by E. Highfill, and covering lots 29 and 30 of block 9, Gault's addition to Oklahoma City. The mortgage was subject to a mortgage for $ 15,000 to Local Building & Loan Association. The defendants in the suit were V. V. Harris and E. Highfill. There were two counts in the petition. The first count detailed the execution of the note and mortgage by Highfill, and detailed the connection of defendant Harris, as found on page 8 of the case-made, as follows:

"That on February 6, 1924, the defendant, E. Highfill, executed, acknowledged and delivered to the defendant V. V. Harris a warranty deed conveying said mortgaged premises to the said Harris, the said warranty deed containing a recital of the said mortgage to this plaintiff and a recital of a first mortgage, superior in lien, to Local Building & Loan Association, which said mortgage last mentioned is more fully described in the second and third counts of this petition. That the transaction between the said E. Highfill and the said property by the said Highfill to the said Harris was verbal, and that, by such transaction, the said Highfill permitted the said Harris to deduct, and, in fact, the said Harris did deduct, from the purchase price all of the indebtedness and obligations secured by the said mortgage, and thereby the said defendant Harris assumed and made his own the obligations of the defendant Highfill to this plaintiff."

¶2 The conclusion of this count is a statement that plaintiff was entitled to a personal judgment on the note against Harris. The second count adopted the allegations of the first count, recounted the execution by Highfill to plaintiff of the note and mortgage, its recordation on January 4, 1924, and the execution by a former owner, Mary J. Husselman and her husband, W. E. Husselman, of a mortgage to Local Building & Loan Association on the property to secure $ 15,000, and set out the note and mortgage. It called attention to the failure by the owner to pay taxes and installment of interest and on stock called for in the note, and that failure would render the mortgage subject to foreclosure. It further alleged a conveyance by the Husselmans to Highfill on June 13, 1923, conveying the property, subject to the $ 15,000 mortgage. The allegation as to the assumption by Harris of the debt is found on page 13, and is as follows:

"That, on June 13, 1923, the said Mary J. Husselman and W. E. Husselman executed, acknowledged, and delivered unto E. Highfill a warranty deed conveying all of the said real estate to the defendant Highfill, and that by agreement, as a part of the same transaction, the said mortgage and indebtedness to Local Building & Loan Association was deducted from the purchase price of said property and thereby the defendant Highfill assumed and accepted as his own the indebtedness evidenced by said note; that this plaintiff does not know and cannot allege whether such agreement was verbal or written; and in like manner as heretofore alleged, upon the conveyance of said property by the said Highfill to the defendant Harris, he, the said defendant Harris, by verbal agreement deducted the said obligations from the purchase price and assumed and accepted the same as his own.

"That despite the covenants and obligations evidenced and expressed by the said note and the said mortgage to Local Building & Loan Association, the defendants herein failed and refused to pay such obligations as they matured, and failed and refused to pay the taxes upon the said real estate, with such effect that, upon the 27th day of June, 1924, there was due and wholly unpaid upon the said obligation so held by Local Building & Loan Association, the sum of $ 1,059.05, and there were due and unpaid for more than 40 days after the same became due and payable, taxes in the sum of $ 404.84, and that on said 27th day of June, 1924, this plaintiff, holding, as heretofore alleged, a mortgage inferior in lien to the mortgage of said Local Building & Loan Association, and its rights as such second mortgage being threatened by the said defaults upon the part of the defendants herein, paid the said sum so in arrears to Local Building & Loan Association and paid the said taxes so in arrears, a total payment of $ 1,463.89. And that by reason thereof the defendants herein are indebted unto this plaintiff in the said sum, together with interest thereon accruing at ten per cent. per annum from June 27, 1924 the date upon which such payments were made, and upon which this suit is filed, for which said sum this plaintiff is entitled to judgment against the said defendants and each of them."

¶3 The third count called attention to the covenant of Highfill to pay taxes, and the failure of the defendants to pay them, and also to pay installments due under the first mortgage. There was a prayer for relief on the first cause and for personal judgment against defendants on the note for $ 5,444.46 and interest, and on the second cause for $ 1,463.89 and interest, and on the third, that unless defendants paid within six months, the property be sold, subject to the loan company's mortgage.

¶4 Harris appeared and filed a motion to quash, followed by a demurrer. Young Pepper got leave to intervene, and did so by showing that he held the loan company's mortgage by purchase made June 30, 1924, and sought foreclosure. Plaintiff demurred to the answer and cross-petition, and demurrer was overruled. The Harris demurrer was also overruled, and he filed an answer February 14, 1925. He admitted that plaintiff's mortgage was subject to foreclosure. He admitted the conveyance to himself, but denied personal liability, and denied express assumption and the deduction from the purchase price of the mortgage indebtedness. He denied the payment to the loan company of anything for taxes or on the note. Plaintiff replied to the cross-petition of Young Pepper. It withdrew its admission of priority pleaded in the former pleadings, and pleaded that the mortgage had been bought by Harris, the owner of the property, for the purpose of cheating the plaintiff, and deduced from the conduct of Harris that the ownership of the property and of the first mortgage had become united in Harris, and therefore the first mortgage was discharged, thereby making plaintiff's mortgage superior. It set up, also, that the plaintiff was entitled to carry out the conditions of the loan company's mortgage by payment of $ 208.50 a month until the stock matured, and getting the benefit of the stock maturity, and that when the stock was canceled the note and mortgage were canceled. The prayer on this answer varied from its original prayer as found on page 65, as follows:

"Plaintiff further shows to the court that since the filing of this action, it has learned that said sum of $ 1,059.05 tendered by it to said Local Building & Loan Association on June 27, 1924, to be applied upon said note and mortgage held by said Building & Loan Association was not so applied, and, therefore, this plaintiff is not entitled to a judgment against the defendant Harris and the defendant E. Highfill for said sum.

"Wherefore, plaintiff prays that it have judgment against the defendants E. Highfill and V. V. Harris, in the total sum of $ 5,848.30, together with interest thereon at the rate of ten per cent. per annum from June 27, 1924, until paid, together with the costs of this action, and that it have a further judgment against all of the parties to this action, including the intervener, Young Pepper, decreeing and establishing plaintiff's mortgage asserted in its petition to be a valid and subsisting lien as security for all of said sums, and that the same be decreed to be a prior and superior lien to any rights, liens or claims of any other party to this action, and that said mortgage be ordered foreclosed, as provided by law, and that the plaintiff have such other and further relief as the court may deem right and proper."

¶5 A reply to Harris' answer was made withdrawing its statements as to the priority of the...