Local Federal Sav. & Loan Ass'n of Oklahoma City v. Sickles

• Court: Oklahoma Supreme Court
• Writing for the Court: RILEY, Justice.
• Citation: Local Federal Sav. & Loan Ass'n of Oklahoma City v. Sickles, 165 P.2d 328, 196 Okla. 395, 1945 OK 258 (Okla. 1945)
• Decision Date: 09 October 1945
• Docket Number: 31623.
• Parties: LOCAL FEDERAL SAVINGS & LOAN ASS'N OF OKLAHOMA CITY et al. v. SICKLES.

165 P.2d 328

196 Okla. 395, 1945 OK 258

LOCAL FEDERAL SAVINGS & LOAN ASS'N OF OKLAHOMA CITY et al. v. SICKLES.

No. 31623.

Supreme Court of Oklahoma

October 9, 1945

Rehearing Denied Jan. 29, 1946.

Appeal from District Court, Oklahoma County; A. P. Van Meter, Judge.

Action by Ruth W. Sickles against the Local Federal Savings & Loan Association to cancel of record a mortgage and for damages for refusal to release mortgage wherein Elery L. Ervin and Tessie E. Ervin were made parties defendant and filed a cross-petition against the plaintiff who filed a cross-petition against the additional defendants. From a judgment for the plaintiff, the defendants appeal.

Judgment canceling mortgage affirmed, judgment against the Local Federal Savings & Loan Association for actual and punitive damages reversed and judgment against defendants Ervin affirmed.

Syllabus by the Court.

1. Where the plaintiff in a civil action seeks relief in two or more causes and the evidence is such as to entitle the plaintiff to relief in one case and is insufficient to support relief as to the other causes, it is not error to overrule a general demurrer of defendant to plaintiff's evidence.

2. Slander of title is a false and malicious statement, oral or written, made in disparagement of a person's title to real or personal property or some right of his, causing him special damages, and may consist of an assertion that the plaintiff has no title to the property of which he is the ostensible owner, or that his title is defective, or that the defendant himself has an interest in or a lien upon the property.

3. Malice is a necessary ingredient to entitle plaintiff to recover in an action for slander of title. The action cannot be maintained if the claim was asserted by defendant in good faith, or if the acts complained of were founded upon probable cause or were prompted by reasonable belief, though the statement may have been false.

4. In an action to cancel a written contract, upon allegations of fraud and deceit by which plaintiff was induced to sign the contract, a decree cancelling such contract will not be reversed unless the same is clearly against the weight of the evidence.

5. To have instructions reviewed, it is necessary to except thereto and have the exception signed by the trial judge.

6. Claim of error not specified in the petition in error is not before this court for review upon appeal.

Everest McKenzie & Gibbens, of Oklahoma City, for plaintiffs in error.

P. S Hillman and J. Cal Counts, both of Oklahoma City, for defendant in error.

RILEY Justice.

This action was commenced in the District Court of Oklahoma County on March 23, 1942, by defendant in error, herein referred to as plaintiff, against Local Federal Savings & Loan Association, to cancel of record a mortgage covering Lots 45 and 46, Block 1, Bancroft Addition to Oklahoma City, executed by Elery L. Ervin and Tessie E. Ervin, husband and wife, who did not own said property.

Plaintiff alleged that she was the owner of said property; that said mortgage constituted a cloud upon her title; that she had made due demand of the defendant for a release of said mortgage but defendant had refused to release the same; that defendant was guilty of malice and oppression in willfully recording said false mortgage and was guilty of malicious conduct and oppression in refusing to release said mortgage after due demand; that by reason thereof, plaintiff was damaged in the sum of $250 and that by reason of the willful and oppressive conduct of defendant, plaintiff was entitled to punitive damages in the sum of $250. Prayer was for cancellation of said mortgage of record and for $250 actual and $250 punitive damages.

Local filed a motion that plaintiff be required to make Elery L Ervin and Tessie E. Ervin parties defendant. After said motion was overruled, Local answered denying that plaintiff had been damaged in any sum and denying that Local had been guilty of overt or oppressive conduct. The answer then alleged that on October 26, 1941 plaintiff made a written contract with Elery L. and Tessie E. Ervin wherein plaintiff agreed to sell and the Ervins agreed to purchase said property for a consideration of $2,100, payable according to said contract; that the Ervins claimed that they owned said property or had some rights therein; that the Ervins had performed their part of said contract and had paid large sums of money under the terms of said contract to the Home Owners Loan Corporation which held a mortgage on said property, for the protection of plaintiff. The answer further alleged, on information, that the Ervins had also paid plaintiff large sums of money under said contract. A copy of the contract was attached to and made a part of the answer. The answer further alleged that after the execution of said contract, and with the approval of plaintiff, the Ervins made application to Local for a loan on said property in the sum of $1,600 to pay the mortgage to the HOLC and that plaintiff approved and ratified the same; that the Ervins gave their promissory note to Local and executed the mortgage to secure the same; that Local was in good faith in taking said note and mortgage and that plaintiff was fully advised and understood the purpose of said note and mortgage and had ratified and confirmed the payments made to HOLC under said contract, and that Ervins were entitled to performance of the contract and were necessary parties.

Local then renewed its motion that the Ervins be made parties defendant. This motion was granted, the Ervins were made parties defendant and filed their answer and cross petition denying that plaintiff was the true and rightful owner of said property. They admitted the execution of the note and mortgage to Local and alleged that they executed same in good faith; they pleaded the contract of purchase and alleged that plaintiff agreed to give possession immediately upon the execution of said contract, and that they had been in possession since October 27, 1941 under said contract; that plaintiff knew, when she signed the contract, that the Ervins intended to obtain a loan from Local to satisfy and pay off the mortgage of the HOLC; that the application for the loan was made with the knowledge, consent, and approval of plaintiff; that on December 16, 1941, there was due and delinquent on the HOLC mortgage the sum of $129.36; that plaintiff failed to make said payments and that on March 24, 1942, HOLC advised these defendants that their loan was delinquent in the sum of $217.10 as of March 16, 1942 and that these defendants, being in possession and under the contract of purchase, paid HOLC said sum of $217.10 to avoid foreclosure, all of which was known to plaintiff; that in addition to the $1,600 loan, they deposited $36.19 with Local to liquidate the HOLC mortgage, making available the sum of $106.42 to pay plaintiff on the contract under which Ervins were obligated to pay only $5 per month; that under the facts pleaded, they were entitled to a judgment compelling specific performance of said contract and a judgment directing plaintiff to execute a proper deed conveying said property to them.

Plaintiff then filed amended answer and cross petition alleging, in substance, that she was sixty years of age, in poor health and advanced physical debility; that she was not educated nor versed in business matters; that she had implicit confidence in and relied upon defendant Elery Ervin in his representations and dealings with her; that said defendant endeavored to purchase said property and she finally yielded to his importunities to the extent that she agreed that he might purchase said property and she would sell it to him if he would pay her $600 in cash on her equity and $50 in cash for certain items of furniture listed on the back of said contract, and that any balance of the purchase price, after payment of the first mortgage on the property and the $600 in cash, was to be secured by a second mortgage on the property payable $5 per month with interest at 6%; that at all times she had informed defendant Ervin that she must realize at least $600 cash on her equity; that said defendant had promised and agreed with plaintiff that he would pay her $600 cash and give her a note for the balance, secured by a second mortgage on the property; that said defendant Elery Ervin prepared and submitted to plaintiff, for her signature, the instrument dated October 26, 1941 and falsely represented to her that said instrument was not a contract for the sale of said property but was a statement which he must have in order to get approval for the loan on the property sufficient to pay off the first mortgage to the HOLC and that as soon as he secured approval for such loan, he would return said instrument to plaintiff and that thereafter they would enter into a contract for the sale and purchase of said property, which would provide that the Ervins would pay off said first mortgage and pay plaintiff $600 in cash and provide that plaintiff should have a note for any balance, payable $5 per month, secured by a second mortgage, and that said contract would further provide that the plaintiff should have $50 cash for the furniture mentioned; that plaintiff, by reason of her implicit faith and confidence in said Elery Ervin, and relying upon his representations, did not read said instrument for the reason that Ervin insisted that he was in a hurry and did not have time to read said instrument, and that she was thereby induced to sign said paper without knowing its contents; that all of said representations were false and fraudulent and that said defendants never intended to pay her $600 in cash on her equity and $50 in cash for the furniture. She further alleged that the contract...