Love v. Cavett
| Decision Date | 10 May 1910 |
| Citation | 109 P. 553,26 Okla. 179,1910 OK 142 |
| Parties | LOVE, Sheriff, et al. v. CAVETT. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where a petition in error is filed within one year from the rendition of the judgment, the alleged error of overruling a demurrer to the petition will be reviewed by this court.
In replevin, where the property is taken and delivered to plaintiff under the writ, no implied contract arises on the express undertaking in the bond to return the property or the value, should a return thereof be adjudged.
The term "contract" is used in the federal Constitution providing, "No state shall pass any *** law impairing the obligation of contracts," in its ordinary sense, as signifying the agreement of two or more minds for considerations proceeding from one to the other to do or not to do certain acts. Mutual assent to its terms is of its essence.
Prior to the act of March 15, 1905 (Laws 1905, c. 18) plaintiff's grantor, a married woman, was vested with title to certain lots not impressed with the homestead character. Said act impressed them as such, the same being built upon and occupied as the home of herself and family. Thereafter plaintiff in error obtained judgment in a court of record against plaintiff's grantor, which became a lien on her real property not exempt. Subsequently plaintiff's grantor, her husband not joining, made, executed, and delivered to plaintiff a warranty deed to said lots, and placed her in possession. Plaintiff in error, to satisfy said judgment, thereupon levied an execution on said lots, to which the husband of plaintiff's grantor after said levy made, executed, and delivered to plaintiff his separate warranty deed. In an action by plaintiff to clear her title held that said deed made by plaintiff's grantor was not void and vested in plaintiff the title to said lots subject to be avoided only by the nonjoining spouse; that a failure to avoid said deed by him, after due notice, as provided in Wilson's Rev. & Ann. St. Okl. 1903, § 883 concluded his right so to do, and that a demurrer to plaintiff's petition setting forth said facts in an action to enjoin a sale under said execution whereby a lien by virtue of said judgment was sought to be enforced, and to clear her title, was properly overruled.
Where, in a suit to clear title, plaintiff's grantors by separate deeds were made parties defendant to serve the nonjoining spouse with notice, as provided by Wilson's Rev. & Ann. St. Okl. 1903, § 883. They entered appearance, but failed to plead and no further action was taken against them. Held, on motion to dismiss the proceeding in error prosecuted by the two remaining defendants against whom judgment was entered, that plaintiff's said grantors are not necessary parties to this proceeding, and that said motion to dismiss is overruled.
Error from District Court, Kingfisher County; A. H. Huston, Judge.
Action by Anna R. Cavett against J. P. Love, sheriff, and others. Judgment for plaintiff, and defendants bring error. Affirmed.
J. C. Roberts and Dodson & Glasser, for plaintiffs in error.
F. L. Boynton, for defendant in error.
This is a suit to clear title brought by Anna R. Cavett, defendant in error, in the district court of Kingfisher county, against J. P. Love, as sheriff, and J. M. Dodson, plaintiffs in error, and B. M. P. Jordan and wife, Laura S. Jordan. Jordan and wife entered appearance, but failed to plead, and no further action was taken against them. After demurrer filed and overruled and exceptions saved, Love and Dodson answered. There was trial to the court and judgment for plaintiff. Defendants Love and Dodson bring the case here without making said Jordan and wife parties to this proceeding.
The petition substantially states that on September 24, 1902, defendants Benj. M. P. Jordan and his wife, Laura S. Jordan, were owners of a homestead (describing it), situated in Oklahoma Territory, under patent from the United States conveying to him said land; that about October 8, 1903, they sold it; that with a part of the proceeds of said sale he on or about September 4, 1904, purchased another, consisting of lots 1 and 2, in block 3, in the town of Kiel, causing title thereto to be vested by warranty deed of that date in his wife, Laura S. Jordan, for the purpose of enabling her to hold the legal title to the same in trust for him, and that the same does not exceed one acre; that since that time said Jordan and wife have resided thereon, claiming the same as a homestead up to and including April 25, 1906; that on said day said Benj. M. P. Jordan sold said lots to plaintiff, and, to pass title, caused said Laura S. to execute and deliver to plaintiff a warranty deed thereto, which said deed on that day was duly recorded and possession of the premises surrendered to plaintiff, who is now owner and in possession thereof; that thereafter, on May 20, 1906, said defendant Benj. M. P. Jordan also executed to plaintiff his warranty deed therefor, copies of which said deeds are filed as exhibits to said petition; that on January 20, 1902, defendant J. M. Dodson recovered judgment against the defendant Benj. M. P. Jordan in the probate court of Kingfisher county for $267 damages and costs, upon which execution issued and was levied upon certain personal property which was on July 7, 1903, replevied from the sheriff by Laura S., and for which she later recovered judgment; that pending trial of said cause anew in the district court of Kingfisher county an order was entered granting leave to substitute J. M. Dodson as defendant therein; that no action was taken under said leave, no amended pleadings filed, and the issues were tried as they then existed to a jury which returned a verdict for defendants, and that they were entitled to possession of the property taken under the writ; that thereupon the court rendered judgment accordingly, and for a return of said property to defendants or its value $450, but, by misprision, the clerk, on December 6, 1905, entered judgment in favor of the defendant J. M. Dodson and against the defendant Laura S., and that said entry so remained until May 22, 1906, when the said clerk added the name of J. P. Love as plaintiff in said judgment entry; that on March 10, 1906, execution issued and was returned, "No property found"; that on May 15, 1906, an alias execution issued direction to the sheriff of Kingfisher county, J. P. Love, who, to satisfy the same, levied upon said lots and caused the same to be appraised, and advertised for sale, fixing the time and place thereof, as set forth in a copy marked "Exhibit C"; that the judgment upon which said execution issued was never a lien upon said lots; that, when issued, said property belonged to plaintiff; that at all times prior to their acquisition by plaintiff said lots were exempt from sale under said judgment, and never became subject thereto; that the said judgment, while appearing of record to be a lien upon the real estate of Laura S. Jordan, was never such by reason of the facts set forth, and casts a cloud upon plaintiff's title, which "should be removed by an equitable decree," pending which defendants J. P. Love, as sheriff, and J. M. Dodson, should be enjoined from enforcing said execution by selling said property as they are threatening to and will do unless restrained; that and prays that said judgment be decreed not to be a lien upon said lots; that the cloud thereof upon the records be removed by proper decree; that said execution be quashed; that the sale of said lots be enjoined; that Dodson be enjoined from further proceeding against them by execution on said judgment, and for general relief.
It is urged by counsel for Dodson that the court erred in overruling his demurrer to said petition. In answer to this it is contended that we cannot review said alleged error, for the reason that it occurred, if at all, more than one year prior to the filing of the petition in error. While this is true, as said petition was filed within one year from the rendition of the judgment, we will review it. Mechanics', etc., Bank v. Harding, 65 Kan. 655 70 P. 655. Neither is this alleged error waived, as contended, by filing an answer. In overruling this demurrer, the court, in effect, held, and we think correctly, that prior to the act of March 15, 1905 (Laws 1905, c. 18), pending the replevin suit and before judgment, the title to the lots in controversy being in Laura S. Jordan, the same were not impressed with the homestead character, but that said act amended the act of March 9, 1893, and did so impress them by declaring "the homestead of the family, which shall consist of the home of the family, whether the title to the same shall be lodged in or owned by the husband or wife," and operated to exempt them as the homestead of the Jordan family from the payment of the debt sought to be collected by the levy complained of, and vested title thereto in the purchaser, Anna R. Cavett, free of the judgment lien sought thereby to be enforced against them. This holding is alleged error. In support of the demurrer, it is urged that said amendatory act purporting to exempt as a homestead that which was not so before is invalid as regards contracts made before its passage; that at the time the property taken in replevin was delivered to her under the writ Laura S. impliedly contracted with said Dodson, in effect, to return said property, or its value, should a return thereof be adjudged; that pursuant thereto the court adjudged a return; that she failed to return said property; that the lots levied on were not exempt at the...
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