Jacobs v. Am. Bank & Trust Co.

• Decision Date: 02 February 1937
• Docket Number: Case Number: 26998
• Citation: 180 Okla. 225,68 P.2d 801,1937 OK 75
• Parties: JACOBS v. AMERICAN BANK & TRUST CO. et al.
• Court: Oklahoma Supreme Court

1937 OK 75

68 P.2d 801

180 Okla. 225

JACOBS v. AMERICAN BANK & TRUST CO. et al.

Case Number: 26998

Supreme Court of Oklahoma

Decided: February 2, 1937

Syllabus

¶0 1. INJUNCTION - Complainant Must Have Some Interest in Property Sought to Be Protected by Injunction.

Complainant must have title to property or some interest therein before an injunction will be granted at his instance to protect it, and he must stand on the strength of his own right or title rather than on the weakness of the right and tittle claimed by his opponent. Thomas v. Morgaa, 113 Okla. 212, 240 P. 735.

2. APPEAL AND ERROR - REVIEW - Sufficiency of Evidence in Equity Case.

In cases of purely equitable cognizance, this court will weigh and examine the evidence, and if the judgment is not against the clear weight thereof, it will be affirmed.

Appeal from District Court, Carter County; John B. Ogden, Judge.

Suit for injunction brought by Mrs. Belle Jacobs against the American Bank & Trust Company et al. Judgment for defendants, and plaintiff appeals. Affirmed.

Sigler & Jackson, for plaintiff in error.

A. Francis Porta and J.B. Moore, for defendants in error.

PER CURIAM.

¶1 This is an appeal from a judgment of the district court of Carter county in an action for an injunction. The parties occupy the same positions here as in the trial court and will be referred to as plaintiff and defendants. On February 5, 1935, in the case of Miller v. American Bank & Trust Company, 171 Okla. 99, 40 P.2d 1074, the action of the trial court in overruling objections to the confirmation of sheriff's sale of certain lands was affirmed, and petition for rehearing thereon was denied on March 12, 1935. In the above cause J.M. Miller and Carrie Miller were plaintiffs in error, and therein it was noted: "It appears that the plaintiffs in error were owners of said property."

¶2 Thereupon the plaintiff instituted this action on March 16, 1935. In her petition plaintiff alleged that she was the owner of and entitled to the immediate possession of an undivided one-half interest in and to the N.W. 1/4 of the N.E. 1/4 and N. 1/2 of S.W. 1/4 of the N.E. 1/4 and the N. 1/2 of N.W. 1/4 and the N. 1/2 of the S.E. 1/4 of the N.W. 1/4 of section 35, township 2 south, range 3 west, Carter county, Okla., and had been such since the Ist day of November, 1920; that on August 21, 1931, the American Bank & Trust Company by the consideration of the district court of Carter county was given judgment against J.M. Miller and Carrie H. Miller; that pursuant to an execution issued on such judgment the sheriff of Carter county had levied upon, advertised, and sold said above-described lands to the American Bank & Trust Company, and was about to issue a sheriff's deed to said lands. Plaintiff further alleged that prior to and subsequent to the rendition of such judgment, and the issuance of said execution and levy and sale had thereunder, the aforesaid judgment debtors had no right, title, interest or estate in or to said lands, and that the execution of said deed and the recording thereof would cast a cloud upon the title of the plaintiff and cause her irreparable injury and damage, and that she was without a speedy and adequate remedy at law in the premises. Wherefore she prayed a permanent injunction enjoining said defendants from issuing, receiving and recording said deed or many manner clouding her title to said land. Plaintiff attached as exhibits to her petition copy of warranty deed dated November 1, 1920, and recorded July 2, 1932, from J.M. Miller and Carrie H. Miller to Mrs Belle Jacobs, and conveying an undivided 7/16 interest in the above-described lands and an executor's deed dated April 19, 1935, made by Jesse E. Eschbach, executor of the last will of Louis Heilbroner, to Bell Jacobs and conveying an undivided 1/16 interest in the above-described lands. This last instrument reciting that said interest had been formerly conveyed to the decedent by J. Maurice Miller and Carrie H. Miller by an instrument dated January 14, 1922, and recorded July 18, 1932. The defendants for answer denied the allegations of the petition; generally admitted that the judgment had been obtained as set forth in the petition and that the property had been levied upon and sold and said sale duly confirmed by the district court of Carter county and the sheriff of said county ordered to execute a deed thereunder, and that appeal had been taken from the order denying protest of confirmation of said sale, and that the action of the district court had been affirmed by this court and the mandate issued, and pleaded said judgment in bar of the action. The defendants further alleged that the plaintiff had no right, title, or interest in the premises; denied that the deed from J.M. Miller and Carrie H. Miller had been executed on the 1st day of November, 1920, but alleged that if said deed had been executed at all, it was after the American Bank & Trust Company had obtained its judgment and was for the purpose of hindering, delaying, defrauding and defeating said defendant and its successors in the enforcement of its judgment. Defendants further alleged that Carrie H. Miller was a sister and Louis Heilbroner was a brother of the plaintiff and that said parties had entered into a conspiracy with the said J.M. Miller to defraud the American Bank & Trust Company and for the purpose of defeating the title of the State Banking Commissioner. Defendants further pleaded that the title to the premises had vested in the American Bank & Trust Company and that the same had passed into the possession of the State Banking Commissioner and was vested in Howard C. Johnson, Bank Commissioner of the State of Oklahoma, and asked that he be made a party to the suit. Defendants further alleged that the plaintiff had never asserted at claimed any right, title or interest in the property until after the same had been sold, and that J.M. Miller had for years been the owner of said property and had subsequently conveyed the same to his wife, Carrie H. miller, and that the said J.M. Miller and Carrie H. Miller had retained possession of said property at all times and collected the rents, royalties and revenues therefrom, signed division orders in which they alleged that th...