Hartsog v. Berry

• Decision Date: 24 November 1914
• Docket Number: 3435. [d1]
• Citation: 145 P. 328,45 Okla. 277,1914 OK 582
• Parties: HARTSOG ET AL. v. BERRY ET AL.
• Court: Oklahoma Supreme Court

145 P. 328

45 Okla. 277, 1914 OK 582

HARTSOG ET AL. v. BERRY ET AL.

No. 3435. ^[d1]

Supreme Court of Oklahoma

November 24, 1914

Syllabus by the Court.

Where a party in possession of real estate brings an action to rescind a contract, cancel the deed thereof, and to quiet title, and the defendant's answer is in the nature of ejectment, to which a general denial is filed, the suit is one in equity, and the plaintiff is not entitled, as a matter of right, to a trial by jury.

A ward's interest in a homestead may be sold by the guardian under order of court, and a good title to the minor's interest passed.

Error from District Court, Noble County; Hon. W. M. Bowles, Judge.

Action by Henry J. Hartsog and others against O. B. Berry and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

Henry S. Johnston and P. W. Cress, both of Perry, for plaintiffs in error.

Harris & Nowlin and W. H. Zwick, all of Oklahoma City, for defendants in error.

LOOFBOURROW J.

On November 17, 1908, O. B. Berry, as party of the first part defendant in error, and Henry J. Hartsog and Clara Hartsog parties of the second part, plaintiffs in error, entered into a written agreement whereby the first party was to convey, by warranty deed, certain lots in the city of Enid and the town of New Cordell, to the party of the second part, subject to a mortgage of $1,500, and the second parties were to convey to the first party 160 acres of land in Noble county, Okl subject to a mortgage of $2,700, and the second parties were to give a mortgage to the first party in the sum of $1,200 upon the property in Enid and New Cordell. This contract or agreement was signed, "O. B. Berry, by Okla. Texas Land Company, Agent," and Berry claimed that his agents were not authorized to make the contract as made, but that the same should have contained a condition whereby he, Berry should receive $300 cash difference, and he refused to carry out the contract as made, whereupon plaintiffs brought suit for specific performance in Garfield county. After the commencement of this suit the plaintiffs and their agents and H. W. Thies, agent of Berry, entered into a compromise settlement and agreement whereby plaintiffs were to pay to Berry the amount of commission due to the Texas-Oklahoma Land Company on said trade, in the sum of $300, and Berry agreed to accept the note of plaintiffs for said sum; the suit for specific performance being dismissed.

A part of the lots to be conveyed by the party of the first part were erroneously described in the contract as lots 9 and 10 in block 2, Reed's Second addition to Reed Hill in Enid, Okl. The word "Second" should have been omitted. It seems that there were four additions to Enid, being Reed's addition to Enid, Reed Hill addition to Enid, Reed's First addition to Reed Hill, and Reed's Second addition to Reed Hill, and that the lots intended to be conveyed were, prior to closing the deal, shown to plaintiffs. It further appears that these lots were held in the name of the heirs of one Allen, deceased, but that at the time of the trade the equitable title was in Berry, and that the legal record title could not pass until the completion of certain probate proceedings then pending, relative to this property. There is evidence tending to show that the condition of this title was fully understood during all of the negotiations, and that the defendants in error offered to give to plaintiffs a good and sufficient and satisfactory bond for title and deed to said lots, and that they offered to deposit cash in escrow in lieu thereof, and that, after discussion of the matter and advising with their attorney, Mr. Carter, plaintiffs waived the cash deposit or the bond, and agreed to make the trade, and that the lots involved in the probate proceedings could be conveyed when such proceedings were completed. This was an agreement in parol at the time of the settlement which resulted in the dismissal of the action for specific performance. Thereupon the plaintiffs in error executed deed and mortgage in conformity with the terms of their contract, and delivered the same to the defendants, and the defendant executed and delivered deeds to his property to the plaintiffs, except a deed to lots 9 and 10, block 2, Reed's addition to Reed Hill, city of Enid. Thereafter plaintiffs, Hartsogs, commenced this action to rescind the contract, to cancel the deeds, and to quiet title of the Hartsogs in the 160 acres of land by them deeded to the defendant Berry, and also in their prayer asked for damages in the sum of $1,000. The defendants answered with a general denial, and alleged the facts to be substantially as hereinbefore stated; alleged the payment of certain mortgages upon the property involved, the payment of certain taxes, asked that in the event the court should grant a rescission of the contract, then that Berry should be subrogated to the rights of the mortgagees to the mortgages by him paid and satisfied, including the right to collect the taxes so paid by defendant Berry, etc., and the prayer, in part, is as follows:

"And that defendant Berry be decreed to be the legal and equitable owner of said land [the 160 acres conveyed by the Hartsogs] and entitled to the immediate possession thereof, and that he have execution for the enforcement of such judgment and rights and such further judgment and decree as should be just and equitable."

The court found the issues in favor of the defendant Berry, and that Berry was the absolute owner and entitled to the immediate possession of the 160 acres of land; that the plaintiffs in error were in the possession of the land without right and in violation of the ownership and right of possession of Berry, and that Berry had the immediate possession of said land upon certain conditions, to wit:

"That Berry reduce all liens and incumbrances upon the property conveyed by him to the plaintiff to the amount due thereon at the time of the trade, including the note executed by the plaintiff to the defendant Berry, provided, however, that the defendant Berry shall be entitled to all rents and profits arising from said property from the 17th day of

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