Hunter v. Murphy
| Decision Date | 13 July 1926 |
| Docket Number | 16862. |
| Citation | 255 P. 561,124 Okla. 207,1926 OK 619 |
| Parties | HUNTER v. MURPHY et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Jan. 25, 1927.
Application to File Second Petition for Rehearing Denied April 12, 1927.
Syllabus by the Court.
It is proper to revive the cause in the name of the executor mentioned in the will, who has been appointed and qualified as such, where an action involving real estate is pending in this court and the plaintiff in error dies testate, and the will attached to the petition to revive directs the real estate be sold by the executor and converted into money to carry out the provisions of the will; under section 11285 Comp. St. 1921, the said real estate must be deemed to be personal property.
In a case of purely equitable cognizance, the judgment of the trial court will not be disturbed on appeal, unless it is clearly against the weight of the evidence.
An action to have a deed, absolute on its face, declared to be a mortgage, is one of purely equitable cognizance and, in such cases, it is the duty of this court to weigh the evidence and decide the appeal in accordance therewith; and the burden of proof rests upon the party asserting that the instrument was intended as a mortgage, and such proof must be cogent convincing, clear, and satisfactory.
To overcome the presumption arising under section 5272, Comp St. 1921, and to establish that a deed, absolute on its face, is, in fact, a mortgage, the cases all agree that the evidence must be clear, unequivocal and convincing, for otherwise the natural presumption will prevail.
Evidence examined, and held to show by clear weight of the evidence that the deed was executed as an absolute conveyance and not as a mortgage.
Commissioner's Opinion, Division No. 5.
Appeal from District Court, Kay County; Claude Duval, Judge.
Action by Thomas J. McElroy against Thomas J. Murphy and others to have a deed declared a mortgage. On the death of plaintiff during appeal, the cause was revived in the name of John S. Hunter, his executor. From a judgment for defendants, plaintiff appeals. Affirmed.
Chas. L. Moore (amicus curiæ), John S. Hunter, and Walter Marlin, all of Oklahoma City, for plaintiff in error.
Sullivan & Sullivan and R. J. Shive, all of Newkirk, and J. E. Burns, of Ponca City, for defendants in error.
This action was commenced in the district court of Kay county, Okl., by Thomas J. McElroy, as plaintiff, who died during the pendency of this appeal, and the cause was revived in this court in the name of John S. Hunter, executor of the estate of Thomas J. McElroy, deceased, plaintiff in error, against Thomas J. Murphy, as defendant, and Roy C. Kinkaid and Mary A. Sager were made parties defendant on motion of the plaintiff, and Anna McElroy was made defendant on motion of defendant Murphy, all of whom are defendants in error, to have a deed to 160 acres of land in Kay county, which was absolute in form, declared a mortgage. Parties will be referred to as plaintiff and defendants as they appeared in the lower court.
Plaintiff, in his petition, alleged, in substance, that he entered said land and obtained title from the government of the United States and received patent therefor; that on September 27, 1899, he and his wife, Anna McElroy, one of the defendants, resided upon said land as their homestead, and, in order to pay the expenses of making final proofs and to pay the purchase price of $2.50 per acre for said lands, borrowed $500 from Thomas J. Murphy, who was a brother of Anna McElroy, for that purpose; that on said date, to secure said loan, they executed a warranty deed to Thomas J. Murphy on said land, which deed was placed of record on September 27, 1899, and, while said conveyance was in the form of a warranty deed, it was, in fact and so agreed upon, understood and intended between the parties thereto, to be a mortgage for the amount of the consideration of $500 expressed by the deed; that the land, at the time, was worth more than said amount; that, after the execution of said instrument, he and his wife, Anna McElroy, lived on the land for some time, and he, being engaged in the railway service, was absent from home and lived a number of years in California and other places; that he and his wife and family lived and remained upon the land until 1914, at which time the residence was destroyed by fire, and that he returned for the purpose of providing a new home thereon, and on his return his wife sued him and obtained a decree of divorce from him; that the defendant Anna McElroy entered into a conspiracy with Thomas J. Murphy to deprive the plaintiff of the lands, and they are seeking to defraud the plaintiff of said land by virtue of the conveyance, heretofore referred to; that, at the time of the execution of the conveyance, he and his wife had no title to the land; that the title was still in the government of the United States, and that the conveyance could not, under such circumstances, have other or further effect between him and and the defendant Thomas J. Murphy than a mortgage, the same having been executed prior to the issuance of the patent from the government; that the defendant Thomas J. Murphy had conveyed a portion of the lands to other parties with intent to defraud the plaintiff; that the defendant had never been in actual possession of the lands or exercised acts of ownership or control over the same, except by execution of deeds to other parties and the execution of a lease on the east half of the land in controversy to the Chamber of Commerce of Ponca City, Okl. Plaintiff tendered into court the sum of $500 and interest from September 2, 1899, at the rate of 6 per cent. per annum for the use and benefit of the defendant Thomas J. Murphy, and asked that a receiver be appointed to take charge of the lands pending litigation, and claimed to be the legal owner in fee simple of the entire 160 acres; that the warranty deed, heretofore referred to, to Thomas J. Murphy, the conveyances by Thomas J. Murphy to other parties, and the lease of Murphy to the Chamber of Commerce of Ponca City constituted a cloud upon the title of plaintiff and he asked that a decree be entered, confirming title in himself and declaring none of the defendants to have any interest therein; that the warranty deed be reformed and declared a mortgage; that he be permitted to pay off the mortgage debt; that title be quieted in himself; and that defendants be enjoined from asserting any right, title, or interest therein.
To this petition the defendant Thomas J. Murphy filed his separate answer, entering a general denial, but admitting that the plaintiff obtained his land by homestead entry and patent from the United States of America, and alleged that, on the 27th day of September, 1899, the plaintiff, in conjunction with his wife, Anna McElroy, one of the defendants herein, made, executed, and delivered their general warranty deed, conveying to him all their right, title, and interest in said property, and specially denied that the deed was ever intended as a mortgage or that it was executed with the meaning and intent that it should be a mortgage or for security for the payment of a debt or obligation of any kind, but that the same was intended for and was an absolute conveyance of both the legal and equitable title to him; that, at the same time, the conveyance of the 160 acres was made to him, under the direction of the plaintiff, he made, executed, and delivered to Edith Ransom 80 acres of the land in dispute in payment to Charles Ransom, the husband of Edith Ransom, as an attorney's fee for representing the plaintiff in a contest proceeding, before the Land Department of the United States, in connection with the lands in controversy; that he has paid the taxes upon the land continuously each year since execution of the deed, and that he, through his codefendant, Anna McElroy, by his consent, has been in exclusive, adverse, and notorious possession, claiming ownership of the lands since the execution of said deed; that he had been in such possession for over 20 years; and that plaintiff's cause of action was therefore barred by the statute of limitation. For further defense the defendant alleged that, on the 2d day of July, 1903, the plaintiff filed his petition in the district court of Kay county, territory of Oklahoma, against him, Edith Ransom, and others, as defendants, in civil case No. 2323, alleging the same facts, and prayed for the same identical relief as in this case; that said action involved the same subject-matter, and that, on the 15th day of February, 1904, the plaintiff filed his sworn written dismissal, with prejudice to another action against this defendant, and paid the costs of the same, and the case was dismissed by the court; that, on the 24th day of April, 1919, the plaintiff filed his amended petition in the district court of Kay county, Okl., in case No. 6741, against him as defendant, involving the same subject-matter, setting forth the same allegations, and praying for the same decree and judgment as is prayed for in this cause; that on the 11th day of October, 1919, said cause No. 6741 was dismissed by the district court of Kay county, Okl., and that, by virtue of said two causes of action, involving the same subject-matter between the same parties, having been disposed of by the court, all matters and things had been adjudicated, determined, and settled and the plaintiff was barred from maintaining this cause; and for his cross-petition he claimed to be the owner in fee simple of the east half of the lands in controversy, that he had been in peaceable possession thereof for over 24 years when the action was filed, and prayed that the title to the land be quieted and confirmed in him.
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