Herndon v. Shawnee Nat. Bank

• Decision Date: 30 December 1924
• Docket Number: Case Number: 15113
• Citation: 232 P. 432,1924 OK 1167,105 Okla. 207
• Parties: HERNDON v. SHAWNEE NAT. BANK et al.
• Court: Oklahoma Supreme Court

1924 OK 1167

232 P. 432

105 Okla. 207

HERNDON v. SHAWNEE NAT. BANK et al.

Case Number: 15113

Supreme Court of Oklahoma

Decided: December 30, 1924

Syllabus

¶0 1. Deeds--Presumption as to Title--Deed to Two Persons.

Where a warranty deed conveys real estate to two or more persons, the presumption is that the estate conveyed is one in fee simple and of inheritance and that the grantees have an undivided equal interest unless it is otherwise expressly provided in the deed.

2. Same--Nature of Estate Conveyed--Statute.

Under section 5272, Comp. Stat. 1921, every estate in land which shall be granted, conveyed, or demised by deed or will, shall be deemed an state in fee simple and of inheritance unless limited by express words, and to overcome this presumption the party contesting it must make out his case by preponderance of the evidence.

3. Injunction -- Title to Land Levied on--Effect of Denial of Relief.

Where the husband and wife are grantees in a warranty deed and an execution is issued under a judgment against the wife and levied on the property described in the deed and same is offered for sale to satisfy the judgment, and injunctive relief is sought by the husband against the sale on the ground the wife has no interest in the property, the judgments denying the relief asked does not mean the husband has no interest in the property, but that he has failed to show himself entitled to the relief asked.

McKeown & Green, for plaintiff in error.

W. L. Chapman, for defendants in error.

THREADGILL, C.

¶1 On July 14, 1914, plaintiff in error, who was plaintiff in the trial court, together with his wife, Estelle Herndon, obtained a deed from one J. L. Huber to lot No. 11 in block 119 of the city of Ada. The consideration was one dollar and other valuable considerations, and in the usual form of a warranty deed. Plaintiff had bought other lots in Ada, but this one was the only lot that his wife was made a party grantee. She had received between $ 4,000 and $ 5,000 in money from her father's estate about 1912, before deed was executed. June 14, 1921, said Estelle Herndon, as Mrs. R. A. Herndon, and Jno. L. Case, P. S. Case, and Gertrude Case Norrell, made and executed a note to the Shawnee National Bank of Shawnee for $ 6,000 at 10 per cent. interest per annum until paid. This note was made payable October 1, 1921. The note was not paid when due, but certain payments were made and credited on, it until April 24, 1922, at which time there was due and unpaid the sum of $ 1,472.50 with interest from May 1, 1922, and 10 percent attorney's fee, and, on failure to pay this balance, the bank brought suit and obtained a judgment on January 23, 1923, against all of the parties to the note. Thereafter, an execution was issued and served by levying on the lot and premises above described as the property of Mrs. R. A. Herndon. The property was appraised and notice given to sell the same. Thereupon the plaintiff, R. A. Herndon, commenced an action against the sheriff of Pontotoc county and the Shawnee National Bank or Shawnee to enjoin the sale of the said property, on the ground that the same was the property of the plaintiff, and his wife, Mrs. R. A. Herndon, had no interest in it; that her name appearing in the deed was by mistake. A temporary restraining order was issued and the sale was held up. On May 7, 1923, the cause was tried to the court and taken under advisement until January 9, 1924, at which time the court rendered judgment in favor of the sheriff and the bank, dissolving the temporary restraining order and refusing to grant a permanent injunction against the sale, and the plaintiff brings the case here by petition in error and case made.

¶2 1. Plaintiff states that the evidence does not support the court's judgment. He contends that the evidence shows that Mrs. R. A. Herndon had no interest in the property levied on by the sheriff under the execution; that it belonged solely to him; that it was purchased with his money and without any assistance from his wife and without any intention on his part to give her any interest in it, and her name in the deed was an inadvertence on the part of the attorney who prepared the deed, and the judgment lien statute, section 690, Comp. Stats. 1921 does not apply to the facts in the case. Assuming the facts of his contention to be true, he cites the following authorities to support his contention as to the application of the statute. J. I. Case Threshing Machine Co. v. Walton Trust CO., 39 Okla. 748, 136 P. 769; Gilbreath et al. v. Smith, 50 Okla. 42, 150 P. 719 Oklahoma State Bank of Wapanucka v. Burnett, 65 Okla. 74, 162 P. 1124; Farmers' State Bank of Ada v. Keen, 66 Okla. 62, 167 P. 207. We have examined these authorities, and they support the proposition that a judgment lien does not attach to real estate where the legal title is in one person and the equitable title is in another, and the reason for the rule is in the fact that the judgment creditor is not a bona fide purchaser as he parts with nothing to acquire his lien. But is the evidence sufficient to bring the case within the rule of these authorities? First, we have the deed in which the property is conveyed to plaintiff and his wife with its statutory presumption, and it must be conceded that, upon the face of the record, this deed conveyed to the plaintiff and his wife an estate in fee simple and of inheritance and that each had an undivided equal interest in the estate. Weaver v. Drake et al., 79 Okla. 277, 193 P. 45. Section 5272, Comp. Stats. 1921, provides:

"Every estate in land which shall be granted, conveyed or demised by deed or will, shall be deemed an estate in fee simple and of inheritance, unless limited by express words. "

¶3 The presumption indulged by the statute may be overcome by proof showing a different interest than the interest expressed on the face of the record and where the rights of bona fide innocent purchasers have not intervened, and, in all cases against judgment lien, where the credit upon which the judgment is based was not extended upon the presumption provided for by the statute. The burden of proof was upon the plaintiff. An examination of the evidence discloses that the plaintiff had bought considerable real estate, and in all of his transactions the property in controversy was the only property bought by him where his wife's name was used in the deed with his. The record shows that Mrs. R. A. Herndon, by inheritance, received from her father's estate four or five...