Knight v. Clinkscales
| Decision Date | 05 October 1915 |
| Docket Number | 5114. |
| Citation | 152 P. 133,51 Okla. 508,1915 OK 723 |
| Parties | KNIGHT v. CLINKSCALES. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Section 450, Wilson's Statutes 1903 (section 726, Snyder's Statutes 1909), in force at the time of the execution and delivery of a warranty deed, after making provisions for special assessments for street improvements in the way of guttering, curbing, and paving the same, in cities of the first class, provides that "said assessment shall be a charge and lien against the property upon which it is assessed, until fully discharged, but, unmatured installments shall not be deemed to be within the terms of any general covenant or warranty" contained in conveyance of such property. Held, that a deed made and delivered on the 22d day of March, 1909, for property against which such special assessment has been made and levied, upon which the first installment or payment does not mature until the 15th day of the following December after the date of said deed such assessment does not come within the terms of the warranty clause of such deed, which is in the following language: "To have and to hold said described premises unto the said party of the second part, his heirs and assigns forever, free, clear, and discharged of and from all former grants, charges, taxes, judgments, mortgages, and other liens and incumbrances of whatsoever nature."
The laws which exist at the time and place of making a contract and at the place where it is to be performed, effecting its validity and construction, enter into and form a part of it.
A local assessment is not a "tax," within the meaning of a covenant of warranty against taxes.
The general rule is that, if the covenant or other provision refers only to a "tax," it does not include local assessments.
The term "general covenant or warranty," as commonly used, means that the grantor will warrant and defend the title against all claims of all persons.
Appeals should not be dismissed on mere technical grounds or clerical errors, unless they go directly to the jurisdiction of the appellate court. The labor and expense of preparing a case-made and briefs is no small item, and hardships are very likely to occur by a too free and liberal use of the power of the court to dismiss appeals. It should be used sparingly and only when it goes directly to the question of the jurisdiction of the court to entertain the appeal, or arises because of the apparent carelessness or indifference of counsel or litigant to give proper attention to the case, or failure to comply with the rules of practice of the court.
Commissioners' Opinion, Division No. 4. Error from District Court, Craig County; Preston S. Davis, Judge.
Action by Morris F. Knight against Lucy Clinkscales, administratrix of the estate of A. M. Clinkscales, deceased. Judgment for defendant, and plaintiff brings error. Affirmed.
Riddle & Bennett, of Vinita, for plaintiff in error.
James S. Davenport and George B. Denison, both of Vinita, for defendant in error.
This case comes from the district court of Craig county, and is an action to recover the sum of $1,132.51 as damages for a breach of warranty in the sale of real estate. The parties will be designated plaintiff and defendant herein, the same as they were below.
The plaintiff's petition alleges, in substance, that on the 22d day of March, 1909, the defendant was the owner of certain real estate in the city of Vinita, and on that day he conveyed the same by general warranty deed to Albert M Clinkscales for the consideration of $8,000. The deed is attached to the petition and made a part thereof. The covenants of warranty, as shown in the deed, and also alleged in the body of the petition, are as follows:
The petition further alleges: That on the 21st day of December, 1908, the city of Vinita, by its city council, passed an ordinance providing for a special assessment for street improvements, for curbing, guttering, and paving the streets of said city, and that the amount of said assessment against the property involved was $1,132.51, with interest at 7 per cent. per annum, "to be paid in installments, as follows, to wit: $113.25, on the 15th day of December each year from and after the date of said warranty deed of conveyance." That said assessment is now, and was at the time of the execution and delivery of said deed, a valid existing lien and incumbrance upon said premises in the full amount thereof, with interest. That thereafter, on the 2d day of October, 1909, plaintiff sold said property to the Cherokee Building Company, conveying the same by general warranty, subject to said lien for said special assessment, and by reason thereof the plaintiff was compelled to, and did, deduct the full amount of said special assessment of $1,132.51 from the consideration for which he agreed to sell, and did sell said premises, whereby he was damaged in said amount.
The plaintiff also alleges: That his original grantor died since the execution of said deed, and the defendant, Lucy Clinkscales, is the legally appointed executrix of his estate. That he presented his claim for damages above mentioned to said executrix, and she refused payment of the same. That no part of said claim has been paid, and there is now due thereon the sum of $1,132.51, for which he prays judgment. After a motion to make more definite and demurrer to the petition had been filed, and overruled by the court, the defendant answered by general denial and other special answers questioning the legal organization of the city, as well as other like questions touching the validity of the assessment, and contending thereby that said special street improvement assessment was not a lien nor incumbrance in any way upon said property.
The case was tried to a jury, and at the conclusion of the introduction of the evidence on behalf of the plaintiff, upon motion of the defendant, the court directed the jury to return a verdict for the defendant, to which objections and exceptions were saved. Thereupon the jury returned its verdict into court in favor of the defendant, as directed by the court, to which objections and exceptions were saved. Motion for new trial was overruled by the court, exceptions taken, and final judgment rendered in favor of the defendant and against the plaintiff, to which exceptions were saved, and plaintiff brings error.
A number of questions are raised by plaintiff in error, but, as we view it, the case must be determined on one proposition alone, and that is: The petition does not...
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