Kingkade v. Plummer
| Decision Date | 26 May 1925 |
| Docket Number | 13955. |
| Parties | KINGKADE et al. v. PLUMMER. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Sept. 15, 1925.
Syllabus by the Court.
A grantor, who has conveyed real property by warranty deed with full covenants, under an agreement with his grantee that the purchase money shall not be paid until a cloud upon the plaintiff's title is removed, has sufficient interest in the subject-matter to maintain an action to remove a cloud and to quiet title.
A petition, which alleges, in substance, that the defendants wrongfully caused to be recorded a deed of trust and mortgage known to be inoperative, and thereby slandered his title to his injury, is not subject to demurrer, for the reason that it does not allege that the defendants were actuated by malice. An injurious publication is presumed to be malicious if no justifiable motive for making it is shown.
Where a tender is necessary to the establishment of any right against another party, it is waived or becomes unnecessary, when it appears that such offer, if made, would have been refused.
The plaintiff made an application to the defendant for a loan upon certain real estate. Afterward, at the request of the defendant, the plaintiff executed a mortgage and deed of trust upon said real estate, and delivered the same to the defendant. The defendant recorded said instruments and refused to make the loan contemplated. Held, that the recording of said instruments under the circumstances was wrongful, and amounted to a slander of the plaintiff's title to the real estate covered thereby.
A joint assignment of error must be good as to all who join in it, or it will be good as to none.
Commissioners' Opinion, Division No. 4.
Appeal from District Court, Haskell County; E. F. Lester, Judge.
Action by W. A. Plummer against Andrew Kingkade and another. From a judgment for plaintiff, defendants appeal. Affirmed.
Burford Miley, Hoffman & Burford, H. W. Harris, and M. G. Meister all of Oklahoma City, for plaintiffs in error.
Malcolm E. Rosser, of Muskogee, for defendant in error.
The parties will be referred to in this opinion as plaintiff and defendants, as they were designated in the trial court.
The plaintiff alleged in his petition, in effect, that on the 22d day of August, 1917, he made an application to the defendant Oklahoma Farm Mortgage Company, through its agent, H. H Calhoun, for a loan upon a tract of 337 acres of land in Haskell county; that at the time said application was made there was a suit pending in the district court of said county between J. F. Lawrence, Plaintiff, v. W. L. Stocker et al., Defendants, which affected the title to 87 acres of said land; that the plaintiff informed said agent of the pendency of said suit, and was advised by him that said suit would not prevent the making of said loan; that, relying upon the promise that said loan would be made by the defendant Oklahoma Farm Mortgage Company, the plaintiff, on the 27th day of September, 1917, executed negotiable bonds in the aggregate sum of $11,800, and a deed of trust conveying said lands to the defendant Andrew Kingkade, as trustee, as security for the payment of said loan, and executed promissory notes in the aggregate sum of $1,652, in favor of the defendant Oklahoma Farm Mortgage Company, and a second mortgage covering said lands to secure the payment thereof; that said instruments were delivered to said defendants through said agent, and on the 4th day of October, 1917, recorded in the office of the county clerk of said Haskell county; that said defendants have at all times refused to make said loan or any part thereof, and refused to release or cancel said instruments.
It is further alleged that the plaintiff purchased said land for the purpose of reselling the same, as the defendant well knew; that said lands were of the value of $50 an acre, and that the plaintiff had a customer ready and willing to purchase said lands at that price, but lost the sale on account of the wrongful recording and refusal to release said deed of trust and mortgage; that the plaintiff afterwards sold said land to one Mamie B. Le Flore, at and for the price of $45 an acre, that being the best price obtainable under a contract that the purchase price should not be paid until said deed of trust and mortgage were released or canceled. The plaintiff prayed for damages in the sum of $1,685 and the cancellation of said deed of trust and mortgage and the evidence of indebtedness secured thereby.
The defendant demurred to the petition, upon the grounds that it did not state facts sufficient to constitute a cause of action against the defendants, and in favor of the plaintiff. The demurrer was overruled and an exception reserved. The defendants answered (1) by a general denial; (2) alleged that it was the custom of loan companies to record mortgages at the time loans were applied for; (3) specifically denying the agency of H. H. Calhoun; (4) by way of cross-petition.
The defendants allege that on the 22d day of August, 1917, the plaintiff made an application to the Oklahoma Farm Mortgage Company for a loan, whereby the plaintiff agreed to pay the fees of an abstractor, an attorney fee for examining and certifying to the title to the lands described in said application, together with the costs of recording said mortgages and other papers necessary to complete said title; that under the terms of said application the plaintiff had expended the sum of $57; and, by a second count of said answer and cross-petition, the defendants allege that the plaintiff agreed to furnish them a clear title to said real estate, and that said defendant Oklahoma Farm Mortgage Company procured a customer ready, willing and able to make the loan upon said real estate, but that the plaintiff was unable to, or refused to, furnish a clear title, and therefore said loan could not be made. They further allege that the notes for $1,652, and mortgage securing the payment thereof, represented the commission of said defendants for securing said loan. They therefore prayed judgment against the plaintiff, that the plaintiff be denied any relief, and for judgment for $57, provided for in said application, and for judgment in the further sum of $1,652, together with an attorney fee of $165, and that said judgment be declared a lien upon the real estate.
On the trial, the uncontradicted evidence was that, on the 16th day of May, 1917, the plaintiff obtained an option to purchase the tract of land above referred to from the owner, Queen Victoria Jackson. This option expired on June 16, 1917, but was afterward extended to October 16, 1917. Pursuant to the provisions of the option contract, a deed conveying the land to the plaintiff was executed and placed in escrow in the First National Bank of Checotah, to be delivered to the plaintiff upon the payment of the purchase price.
On the 22d day of August, 1917, the plaintiff made a written application to the defendant Oklahoma Farm Mortgage Company for a loan of $11,800 upon said real estate. This application was made through H. H. Calhoun of Muskogee, upon the stationery of the defendant Oklahoma Farm Mortgage Company, and by him transmitted to said defendant. This application recites, in substance, that the money is borrowed to pay a part of the purchase price of the real estate, and is wanted immediately, and contains the following provision:
"If, after examination of said land, the Oklahoma Farm Mortgage Company shall consent to make the loan applied for, or for any different amount acceptable to me, and I shall fail for any reason whatever to complete the same, I agree to pay all reasonable costs and charges incurred in making such examination and a per diem of $3 for the service of an examiner, and per diem and expenses shall be a lien upon the above-described property."
On the same day the application was made, the firm of Calhoun & Sons, by said H. H. Calhoun, addressed to the plaintiff the following notice:
"We are in receipt of your application for a loan of $11,800 on your farm of 337 acres in the Blaine Bottoms in Haskell county, known as the Queen Victoria Jackson farm, and beg to advise you that same has been inspected for this loan and approved, and that we will be ready to close this loan as soon as abstracts can be continued and examined and requirements met."
The application was transmitted by Mr. Calhoun to the defendant Oklahoma Farm Mortgage Company at Oklahoma City, and, at the time said application was transmitted, or within a few days thereafter, abstracts covering said lands, and certified on November 10, 1915, were delivered to Mr. Calhoun by the plaintiff, and by him transmitted to the defendant Oklahoma Farm Mortgage Company.
On the 20th day of September, 1917, the Oklahoma Farm Mortgage Company prepared the bonds, deed of trust, notes, and mortgage referred to in the pleadings, and transmitted the same to H. H. Calhoun at Muskogee for execution. The letter transmitting these instruments was exhibited to the plaintiff and made certain requirements as to the release of liens against said property, which the plaintiff was willing to comply with. Nothing was said in this letter with reference to the Lawrence-Stocker suit. These instruments were executed on the 28th day of September, 1917, and transmitted by him to the defendant Oklahoma Farm Mortgage Company, and by it recorded in Haskell county on the 4th day of October, 1917.
The defendant Oklahoma Farm Mortgage Company, it appears, on the 29th day of September, 1917, procured a supplemental abstract which showed the pendency of the Lawrence-Stocker suit, and on the 6th day of October, 1917, it notified Mr. Calhoun that the loan could not be made while said suit was...
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