Higgs v. Renfrow
| Citation | 159 P.2d 749,195 Okla. 545,1945 OK 205 |
| Decision Date | 19 June 1945 |
| Docket Number | 31805. |
| Parties | HIGGS v. RENFROW et al. |
| Court | Oklahoma Supreme Court |
Appeal from District Court, Mayes County; N. B. Johnson, Judge.
Suit in ejectment and to quiet title to certain land by H. D. Renfrow against Illinois Valley Trust Company and another, wherein Olive D. Higgs intervened. From a judgment in favor of plaintiff, the intervener appeals.
Reversed with directions.
Syllabus by the Court.
1. A trustee in bankruptcy does not stand in the position of an innocent purchaser for value and without notice as to property of the bankrupt, but takes no better title than the bankrupt had.
2. A purchaser from the trustee in bankruptcy takes no better title than the bankrupt or trustee had.
3. A purchaser of realty is charged with notice of whatever rights persons in actual possession may possess.
4. It is not necessary to the status of a mortgagee in possession that possession of the land shall have been taken under the mortgage or with the consent of the mortgagor. It is sufficient if the possession be taken peaceably and lawfully.
5. The statute of limitations does not run against a mortgagee in possession during the continuance of such possession, and until the mortgage debt has been fully paid the owner may not oust such mortgagee from possession or quiet his title as against such mortgagee.
R. A Wilkerson, of Pryor, for plaintiff in error.
J. W Bashore, of Vinita, for defendant in error T. M. Chastain.
Henry Burris, of Pryor, for defendant in error H. D. Renfrow.
This is a suit in ejectment and to quiet title to 80 acres of land in Mayes County. The suit was commenced by H. D. Renfrow as plaintiff against Illinois Valley Trust Company and Ben Head as defendants. Olive D. Higgs intervened in the action. From a judgment in favor of the plaintiff, intervenor appeals.
The land in question was allotted to George McCoy, who, on June 10, 1921, executed and delivered to The Graves Farm Loan Investment Company, a corporation, a mortgage securing a loan of $2500 due July 1, 1928, bearing interest at the rate of seven per cent per annum until maturity and ten per cent per annum after maturity. On October 6, 1921, the mortgage was assigned to the defendant, Illinois Valley Trust Company. The mortgage and said assignment were duly recorded in Mayes County. On October 8, 1921, the mortgage and note were sold to intervenor by the Illinois Valley Trust Company and a certificate of purchase was executed and delivered to intervenor. However, the original papers were retained by the company for servicing, and on September 1, 1932, the company made a formal assignment of the mortgage to intervenor.
On July 20, 1922, George McCoy conveyed the land to John Duffield who, on November 21, 1923, conveyed the land to C. M. Russ, who, on the same day, conveyed the land to The Graves Farm Loan Investment Company.
It appears that The Graves Farm Loan Investment Company had assigned mortgages on a large number of tracts of land to the Illinois Valley Trust Company, and, on September 18, 1928, the president of the Illinois Valley Trust Company secured from The Graves Farm Loan Investment Company a quitclaim deed covering said land with the name of the grantee left in blank, along with deeds on some 144 other tracts of land, with authority to fill in the names of the owners of the mortgages on said lands. Thereafter, intervenor's name was inserted in said deed as grantee by an officer of the Illinois Valley Trust Company and the deed was delivered to intervenor. However, it appears that it was not acknowledged by C. M. Russ, who executed the deed as president of the corporation, until March 18, 1929, at which time Russ was no longer president of the company. Intervenor, through an attorney in Illinois and an agent at Pryor, Oklahoma, leased the land for agricultural purposes to the defendant Head in 1930, and Head took possession under said lease and has held possession ever since. He paid rent to intervenor until the plaintiff asserted title about 1938, when he ceased paying rent. After he took possession of the land, which is meadow and grazing land, he fenced it at the request of intervenor and deducted from the rent the cost of the fence. The intervenor paid taxes upon said land for the years subsequent to 1923.
A receiver was appointed for The Graves Farm Loan Investment Company on April 16, 1929, and the company was adjudged bankrupt on November 4, 1929. On October 26, 1931, the trustee in bankruptcy conveyed by trustee deed this land together with other property to T. M. Chastain and the sale was confirmed on December 16, 1932, by the referee in bankruptcy. On February 26, 1938, Chastain conveyed the property to the plaintiff, H. D. Renfrow. In order to avoid the champerty statutes and to defend the warranty in the deed from Chastain to Renfrow, Chastain was permitted to file an answer to the petition in intervention by intervenor and to aid Renfrow in the prosecution of the cause.
This suit was commenced on April 14, 1938, and was resolved into a contest between Chastain and Renfrow on one side and intervenor on the other side. The defendants, Illinois Valley Trust Company and Head, claim no rights contrary to the rights of intervenor. By her second amended petition in intervention, intervenor claims to have a right to possession of said land either as owner under said deed from The Graves Farm Loan Investment Company or as a mortgagee in possession under said mortgage. She alleged that the deed to Renfrow was champertous. She merely asked that the plaintiff be denied any relief and filed no cross petition asking that her title be quieted or that her mortgage be foreclosed.
Appellant argues (1) that the deed to Renfrow was champertous, (2) that Chastain and Renfrow took title, if any, under the trustee's deed subject to her...
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