Johnson v. Fugate, 36741

• Court: Oklahoma Supreme Court
• Writing for the Court: CORN; JOHNSON
• Citation: Johnson v. Fugate, 293 P.2d 559, 1956 OK 35 (Okla. 1956)
• Decision Date: 31 January 1956
• Docket Number: No. 36741,36741
• Parties: , 1956 OK 35 Lottie T. JOHNSON, Plaintiff in Error, v. Elmer FUGATE, Defendant in Error.

Page 559

293 P.2d 559

55 A.L.R.2d 1115, 1956 OK 35

Lottie T. JOHNSON, Plaintiff in Error, v. Elmer FUGATE, Defendant in Error.

No. 36741.

Supreme Court of Oklahoma.

Jan. 31, 1956.

Syllabus by the Court

1. Where A enters into a contract with B to sell him a certain described 180 acres of land for $8,000 and as a part of the transaction at the time and place where A executes and delivers a deed conveying said land to B, B executes a note to C for $6,000 and gave him a mortgage on the land to secure the payment of the note, and at that time C pays to A the full $6,000. Record examined and held: That C is entitled to a prior lien on the land against any unpaid balance of the purchase price to A.

2. In exercising appellate jurisdiction in a case of equitable cognizance, this court may direct the entry of such judgment as should have been entered in the first instance.

Appeal from the District Court of Tulsa County; Elmer W. Adams, Judge.

Suit for money judgment, to establish vendor's lien and for foreclosure of same. From judgment decreeing vendor's lien superior to lien of purchase money mortgage the defendant appeals. Reversed with directions.

Joy G. Clayton, Tulsa, for plaintiff in error.

Amos J. Nichols, Tulsa, for defendant in error.

CORN, Justice.

The essential facts which evoked this litigation may be summarized briefly in the following manner. Plaintiff entered into a written contract to convey real property (180 acres of farm land) to J. W. Bradley and wife for $8,000. The parties met in the office of defendant's attorney to complete the transaction on February 9, 1953. Plaintiff executed his deed to the Bradleys and defendant's agent (her husband) paid plaintiff $6,000 in two checks. One check for $3712.32 was drawn payable to plaintiff's mortgagee to discharge existing indebtedness, and the balance was paid to plaintiff. Simultaneously with plaintiff's delivery of the deed to the Bradleys they executed and delivered to defendant a note for the $6,000 advanced, secured by a mortgage upon the property. There were unpaid taxes against the property, and the Bradleys executed a note to plaintiff for the $2,000 balance, payable when plaintiff paid these taxes. The taxes were paid on February 12, 1953. Thereafter, as the outgrowth of certain money transactions, on April 2, 1953, the Bradleys purported to convey this property to one Wooten by warranty deed, in settlement of his claim, arising out of his cash advances.

Plaintiff filed this action alleging substantially the foregoing matters and that the defendants, Bradleys, had failed to fulfill their contract although he was ready and willing to do so. That defendant held a mortgage (dated February 9, 1953); that defendant had knowledge of plaintiff's claim when same was executed so that this mortgage was junior and inferior to plaintiff's vendor's lien. Further, that on April 2, 1953, the Bradleys had conveyed this property by warranty deed to one Wooten, who took the conveyance with knowledge of plaintiff's lien. Plaintiff sought judgment against all defendants for the amount of claim, interest, costs, attorneys fee, judgment declaring a vendor's lien upon the property and satisfaction thereof by foreclosure of such lien.

Defendant Johnson answered by denial of the matters alleged, and by way of defense plead that plaintiff conveyed to the Bradleys with knowledge she had advanced $6,000 on the purchase price, secured by this mortgage, which sum was paid over to plaintiff when the conveyance was made, so that plaintiff's claim was junior and inferior to defendant's mortgage. Defendant asked judgment establishing priority of her mortgage and that same be decreed to be a superior lien and prior to all other claims.

Plaintiff replied in all instances by general denial of various defendant's answers.

Since this appeal from the judgment rendered is by defendant Johnson, alone, it is unnecessary to consider any matters respecting the other defendants, who do not appeal.

The nature of the question presented by this appeal does not require that we review the record and weigh the evidence. The testimony relative to the matters upon which ...