Local Bldg. & Loan Ass'n v. Hall

• Citation: 292 P. 68,145 Okla. 206,1930 OK 434
• Decision Date: 30 September 1930
• Docket Number: 19472.
• Parties: LOCAL BUILDING & LOAN ASS'N v. HALL et al.
• Court: Supreme Court of Oklahoma

292 P. 68

145 Okla. 206, 1930 OK 434

LOCAL BUILDING & LOAN ASS'N v. HALL et al.

No. 19472.

Supreme Court of Oklahoma

September 30, 1930

Withdrawn Corrected and Refiled Oct. 14, 1930.

Syllabus by the Court.

Sureties on supersedeas bond on appeal from confirmation of mortgage foreclosure sale held not liable for use and occupation, where bond did not so provide (Comp. St. 1921, § 794).

In an appeal from an order of confirmation of sale of real estate in a mortgage foreclosure proceeding, where the supersedeas bond does not contain any of the conditions required by section 794, C. O. S. 1921, nor any conditions for the payment of the value of the use and occupation of the property, no recovery can be had from the sureties on such bond for the value of the use and occupation of the property.

Commissioners' Opinion; Division No. 2.

Appeal from District Court, Oklahoma County; T. C. Chambers, Judge.

Action by the Local Building & Loan Association, of Oklahoma City against Bess B. Hall and others. Judgment for defendants, and plaintiff appeals.

Affirmed.

Everest & Brewer, of Oklahoma City, for plaintiff in error.

Welty & La Fon and Walter & Hilpirt, all of Oklahoma City, for defendants in error.

DIFFENDAFFER C.

This is an appeal from an order sustaining a demurrer of defendants to the petition of plaintiffs and dismissing an action upon a supersedeas bond.

The petition alleges, in substance, that on or about November 6 1923, plaintiff herein recovered judgment in the district court of Oklahoma county against defendants Bess B. Hall and E. G. Hall for some $4,068.17, with interest and costs and $400 attorney's fee, decreeing the same to be a valid and subsisting lien upon lots 7 and 8 in block 7, Military Park addition to Oklahoma City, and further decreeing that said property be sold by the sheriff of Oklahoma county without appraisement, if said judgment should remain unpaid for a period of six months thereafter; that said judgment became and was a final judgment and remained unpaid for more than six months thereafter; that upon written præcipe therefor, an order of sale was issued directing the sale of said premises etc; that pursuant thereto said premises were advertised and sold to plaintiff; due return of the order, and motion to confirm and an order confirming the sale, directing the sheriff to execute and deliver a deed for said property to plaintiff and to place plaintiff in possession thereof; that the order confirming said judgment was made over the objections of defendants therein, Bess B. Hall and E. G Hall, which objections being overruled said defendants gave notice of their intention to appeal from said order confirming the sale to the Supreme Court of the State of Oklahoma; that said appeal was taken and a supersedeas bond given in said proceedings signed by defendants Bess B. Hall and E. G. Hall as principals, and defendants J. W. Pryer, H. J. Muller, and Floyd B. Payne as sureties.

The petition further alleged that said defendants Bess B. and E. G. Hall perfected their appeal in the Supreme Court; that the judgment therein was affirmed (117 Okl. 174, 245 P. 548) on the 26th day of January, 1926, and petition for rehearing was denied and mandate issued April 13, 1926; that thereafter the sheriff delivered his deed to said property to plaintiff and plaintiff obtained possession of said premises on or about May 5, 1926; that during the pendency of said appeal, defendants Bess B. and E. G. Hall remained in the possession of the premises, which were of the reasonable rental value of $60 per month, aggregating $1,320. The petition alleged:

"And that under the said bond and the Statutes of 0klahoma, the conditions of such bond were and are that during the possession of such property by the defendants, plaintiff in error, they would not commit or suffer to be committed any waste thereof, and if the said judgment be affirmed that they will pay the value of the use and occupation of the property from the date of the undertaking, the date of said bond being the 7th day of July, 1924, until the delivery of the possession of such real estate pursuant to the judgment, and all costs."

But what was alleged to be a true and correct copy of such supersedeas bond was attached to the petition, marked "Exhibit A," and made a part thereof. The bond in full is as follows: "Supersedeas Bond.

"Know all men by these presents that we, Bess B. Hall, and E. G. Hall, as principals, and J. W. Pryer, H. J. Muller, and Floyd B. Payne, as sureties, are held and firmly bound unto the Loan Building and Loan Association, a corporation of Oklahoma City, in the penal sum of One Thousand Dollars ($1000) Dollars, for the payment of which well and truly to be made, we do bind ourselves, and each of us, our heirs, executors and administrators, jointly and severally by these presents.

"The condition of the above obligation is such that, whereas, in the District Court of Oklahoma County, Oklahoma in the above entitled cause, on the 28th day of June, 1924, it was ordered that the objection of defendants to the confirmation of Sheriff's sale be overruled, and that the motion of the plaintiffs to confirm the said sheriff's sale was confirmed and exceptions to defendants thereupon allowed; and, whereas, the above named principals have appealed from said judgments to the Supreme Court of said State, and gives this undertaking in order that execution of said judgment shall be stayed pending the determination of said cause on appeal.

"Now therefore, if the said principals shall prosecute their appeal without unreasonable delay, and shall have the said judgment reversed on appeal and remanded to said court for new trial or further proceedings, then this obligation shall be void; otherwise to be and remain in full force and effect.

"In witness whereof, we have hereunto subscribed our names this 5th day of July, 1924.

"Bess B. Hall,

"E. G. Hall,

"Principals.

"J. W. Pryer,

"H. J. Muller,

"Floyd B. Payne,

"Sureties."

Defendant Floyd B. Payne filed his separate demurrer to the petition, setting up as the grounds of demurrer "that the petition does not state facts sufficient to constitute a cause of action against this defendant." Defendants Bess B. Hall, E. G. Hall, H. J. Muller, and J. W. Pryer joined in a like demurrer.

These demurrers were heard together and sustained. The plaintiff elected to stand on its petition and its action was dismissed. From the orders sustaining the demurrers and dismissing the action, plaintiff prosecutes this appeal.

The sole question presented is the sufficiency of the so-called supersedeas bond to bind the makers for the payment of the value of the use and occupancy of the premises pending the appeal from the order of confirmation to the amount of the bond, to wit, $1,000. There is no contention that the petition stated a cause of action against defendants Bess B. Hall and E. G. Hall, independent of the bond. Therefore, we do not decide that question.

Under the well-established rule that where the allegations of the petition of the terms or contents of an instrument sued upon are in conflict with the instrument, and a copy of the instrument is attached to the petition and made a part thereof, the instrument itself controls, we must disregard the conflicting allegations of the petition and look only to the terms of the bond.

Plaintiff frankly admits that the bond is not altogether in the statutory language, but contends that because the bond on its face discloses its purpose, viz., that the "principals" having appealed from said judgments to the Supreme Court of this state and given this undertaking in order that the execution of said judgment should be stayed pending the determination of said cause on appeal, the signers fully understood the purpose thereof, and the purpose having been fully accomplished and the proceedings stayed, both principal and surety are liable on the bond for two reasons: First, regardless of whether or not the bond is in statutory form, it is valid as a common-law bond or obligation; and, second, defendants having themselves written the bond, they are now estopped in law from questioning its validity. With this contention we cannot agree.

Almost the identical question here presented was decided by the court in Lyhgholm v. Atkins et al., 140 Okl. 36, 282 P. 129. In that case the supersedeas bond was conditioned for the payment of the "condemnation money" as provided in the first subdivision of section 794, C. O. S. 1921, but entirely omitted the condition required by the third subdivsion for the payment of the value of the use and occupation of the premises from the date of the undertaking until the delivery of the possession pursuant to the judgment, or any condition equivalent thereto. It was there held:

"In an action upon a supersedeas bond given in an action where the possession of real property only...