Litz v. Exch. Bank of Alva

• Decision Date: 06 September 1905
• Citation: 1905 OK 76,83 P. 790,15 Okla. 564
• Court: Oklahoma Supreme Court
• Parties: JAMES R. LITZ, Administrator of the Estate of JOHN R. COVEY, deceased v. THE EXCHANGE BANK OF ALVA.

1905 OK 76

83 P. 790

15 Okla. 564

JAMES R. LITZ, Administrator of the Estate of JOHN R. COVEY, deceased v. THE EXCHANGE BANK OF ALVA.

Supreme Court of Oklahoma

Decided: September 6, 1905

Syllabus

¶0 1. REAL PROPERTY--Mortgage Lien. A mortgage does not convey title to the mortgaged property, but only creates a lien thereon.

2. SAME--Right to Extinguish. A mortgagor has the right to pay the indebtedness secured by the mortgage, and extinguish the lien at any time before the property is sold by the mortgagee.

3. PERSONALTY-- Descends to Whom. Personal property of one who dies intestate passes to the heirs of such intestate, subject to the control of the probate court, and to the possession of any administrator appointed by the court for the purpose of administration.

4. SAME--Sale of, When Mortgaged. Where a person or corporation before the granting of letters of administration, sells or alienates any of the property of a decedent, which is covered by a chattel mortgage, he, or it, is chargeable therewith, and liable to an action by the administrator of the estate for double the value of the property so sold or alienated.

H. A. Noah, for plaintiff in error.

T. J. Womack and Strang & Devereux, for defendant in error.

STATEMENT OF FACTS.

On April 15th, 1895 John R. Covey executed and delivered his promissory note to the Exchange Bank of Alva, in the sum of $ 1451.40 due ninety days after date, and to secure the payment thereof executed a chattel mortgage to said bank upon one hundred and forty-seven head of cattle. On May 14, 1895, said John R. Covey was killed. On May 15, 1895, the bank proceeded to take possession of the cattle covered by said mortgage. On the 17th or 18th of May, 1895, the bank gave the statutory notice of the foreclosure of its mortgage, and on the 28th of May, 1895, the cattle covered by said mortgage were sold to one J. W. Maxey, for $ 632.10, being $ 4.30 per head. On May 29, 1895, there was a special administrator appointed by the probate court of Woods county. The decedent, John R. Covey, died intestate. This action was instituted against the Exchange Bank of Alva by the administrator of the estate of John R. Covey, to recover double the value of the property sold and alienated by the bank, the holder of said chattel mortgage, after the death of said Covey, and before a special or general administrator was appointed. The issues having been joined, the cause was submitted to the court, without a jury, upon the following agreed statement of facts:

"AGREED STATEMENT OF FACTS.

"It is hereby stipulated and agreed by and between the parties to this action by their respective attorneys that the facts relevant to the issues herein are as follows:

"That one John R. Covey, of Woods county, Oklahoma Territory, did on April 15, 1895, execute and deliver his certain chattel mortgage to the Exchange Bank of Alva, Oklahoma, a corporation, upon 117 head of native yearling steers, branded "Z" on left hip, and 35 head of native yearling steers, branded "A" on left side, to secure the payment of a promissory note of even date therewith, for one thousand four hundred fifty-one ($ 1451.40) and 40/100 dollars, due ninety days after date of said note, and that said note was made payable to the order of said The Exchange Bank of Alva. That John R. Covey was then the said owner of said cattle.

"That afterwards on the 14th day of May, 1895, the said John R. Covey was killed.

"That on the succeeding day the cattle were scattered and no person was in charge of them; and that at that time the conditions in the neighborhood and in the locality in which the cattle described in said mortgage were then being held, were such as furnished reasonable grounds in the minds of the officers of the said The Exchange Bank of Alva, that its security was liable to, and was being impaired and that there actually was danger of the security being impaired by the loss of the property, or a part thereof, described in said mortgage.

"That on the said 15th day of May, 1895, the said The Exchange Bank of Alva, took charge of all of said cattle that could then be found and began active work to get all of the same together, and succeeding during the following two weeks in finding 147 head of said cattle.

"That all the said cattle were taken possession of by the said The Alva Exchange Bank, under and by virtue of the chattel mortgage heretofore mentioned, a copy of which is attached to the plaintiff's petition and also to defendant's answer, each being marked Exhibit "A" and that such copy is hereby made a part of this agreed statement of facts as fully as if hereto attached and made a part thereof.

"That the defendant, The Exchange Bank of Alva, at the time of taking possession of the property described herein, had a valid and subsisting mortgage thereon, and that the amount of money for which it was given to secure was wholly unpaid; and by reason of the conditions herein mentioned, the said defendant, The Exchange Bank of Alva, had reasonable grounds to believe and did believe in good faith, that its security was impaired and was in great danger of depreciation in the loss and removal of cattle therein described, unless it immediately took possession of said property.

"That afterwards on the 17th or 18th day of May, 1895, the said defendant, The Exchange Bank of Alva, gave notice by posting notices of the sale of said cattle under said chattel mortgage in five public places in the county where the property was to be sold, which said notice contained the names of the mortgagor and mortgagee, the date of the mortgage, the nature of the default, and the amount claimed to be due thereon at the date of the notice, a description of the mortgaged property, conforming substantially to that contained in the mortgage, the time and place of the sale, and the name of the agent and attorney, foreclosing such mortgage, as provided by the laws of the Territory of Oklahoma for the foreclosures of the chattel mortgages by advertisements, and that said notices were posted, as above set forth, ten days before the time specified therein for such sale.

"That notices of the sale of said cattle at public auction were posted, one on the front and north of the United States land office on the public square in Alva, Oklahoma Territory; one on the north and west end of Carter's livery barn on the east side of the public square in Alva; one on the south bridge crossing Eaglechief, south of Alva, one on the north bridge, crossing the north fork of Eaglechief, south of Alva; and one notice on the front of the building used as the post office in the city of Alva, Oklahoma; and that each of said notices were duly posted more than ten days prior to the date of the sale named therein.

"That on the 28th day of May, 1895, the 147 head of said cattle heretofore described were sold at public sale by George T. Parry, the duly authorized agent of the defendant, The Exchange Bank of Alva, under and by virtue of the said chattel mortgage, to the highest and best bidder therefor, and at the time and place mentioned in the notices posted of said sale.

"That the said 147 head of cattle heretofore mentioned were sold to one J. W. Maxey for the sum of $ 4.30 per head, and for the total sum of $ 632.10, he the said J. W. Maxey, being the highest and best bidder therefor, and that the possession of said cattle were then and there delivered to the purchaser, and that the cattle were immediately moved by the purchaser from Woods county, Oklahoma Territory, to Barber county, Kansas, and have not since come into possession of the said estate or its adminitrator.

"That on the 29th day of May, 1895, there was...