Maas v. Dunmyer
| Decision Date | 23 June 1908 |
| Citation | 96 P. 591,21 Okla. 434,1908 OK 122 |
| Parties | MAAS et al. v. DUNMYER. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
In an action for foreclosure, where a defendant, against whom no money judgment is sought, by cross-petition in his answer sets up a defense and alleges a cause of action involving the application of equitable doctrines, and seeks relief that only a court of equity can give, such defendant is not entitled to a jury trial on the issues raised by his cross-petition.
[Ed Note.-For cases in point, see Cent. Dig. vol. 31, Jury, §§ 35-65.]
The deed of a person whose mind is unsound, but who is not entirely without understanding, made before his incapacity is judicially determined, is not void, but voidable, and passes title so that, when the grantee of such person mortgages the property to one who takes the mortgage in good faith for value without notice of the incapacity of the original grantor, the mortgagee thereby obtains a valid lien.
[Ed Note.-For cases in point, see Cent. Dig. vol. 35, Mortgages §§ 344-365.]
Error from District Court, Payne County; John H. Burford, Judge.
Action by Mary E. Dunmyer against John Maas, by his guardian, C. W Longan, and others. Judgment for plaintiff, and Maas, by his guardian, brings error. Affirmed.
Geo. P. Uhl and C. L. Burdick, for plaintiff in error.
Lowry & Lowry, for defendant in error.
On the 22d day of July, 1902, John Maas, plaintiff in error, represented in this proceeding by his guardian, C. W. Longan, was the owner of the fee title to 160 acres of land in Payne county, Okl. On said date he conveyed said land by warranty deed to John J. Harsin, and said Harsin on same day by warranty deed conveyed said land to Nannie M. Rush. On August 1, 1902, Nannie M. Rush and her husband borrowed of the defendant in error, Mary E. Dunmeyer, the sum of $1,200, executing therefor their certain promissory note due in five years, with interest at 7 1/2 per cent. per annum. To secure the payment of said note Nannie M. Rush and her husband on August 1, 1902, executed to Mary E. Dunmyer a mortgage on said land, which mortgage was duly recorded on August 2, 1902. Mary E. Dunmyer was a resident of the state of Nebraska, and made said loan through her agent at Stillwater, Okl., who was one Fletcher Brown. Some months after the making of the mortgage to Mrs. Dunmyer, John Maas, in an action in the district court of Payne county, maintained in his own behalf, without a guardian, had the deeds from himself to Harsin and from Harsin to Nannie M. Rush canceled and set aside on the ground that he was feeble minded, and that fraud had been practiced upon him by the said parties in obtaining the deed from him to Harsin, and by the judgment of the court in that case said deeds were canceled and he was reinvested with the title to said land; but Mrs. Dunmyer was not made a party to that action. Thereafter, and before the bringing of this suit, John Maas was adjudicated insane, and C. W. Longan was appointed guardian of his person and property, and default having been made in the payment of interest, under the conditions of said note and mortgage, Mrs. Dunmyer declared the note due, and commenced this action against Nannie M. Rush and her husband, Geo. S. Rush, on the note and to foreclose the mortgage. She made John Maas a party defendant, alleging that he claims some interest in said land covered by the mortgage, which interest she alleges is inferior to her rights under the mortgage. Judgment by default was taken upon the note against Mrs. Rush and her husband. Defendant Maas, by his guardian, answered in three paragraphs. In the first and second paragraphs of his answer he denies the execution by Nannie M. Rush and Geo. S. Rush of the note and mortgage to Mrs. Dunmyer, and denies that Mrs. Rush had any title whatever in the lands in controversy at the time of the institution of this action, or at any time prior thereto. In the third paragraph of his answer, by way of cross-petition, he alleges, in substance, that at the time of the execution by him of the deed to Harsin he was insane and without understanding, and that said deed was obtained from him by fraud of the said Harsin, Nannie M. Rush, and Geo. S. Rush, that said deed is void, and that the mortgage from Mrs. Rush and husband to plaintiff conveyed no lien and is invalid, and prays that said mortgage be canceled and his title quieted. Judgment was rendered by the trial court in favor of plaintiff below. On the trial the defendant in error, plaintiff below, demanded that all issues arising on the pleadings between her and defendant Maas be tried as equitable issues to the court, and defendant Maas demanded that all the issues formed by his answer be tried to a jury, and that the jury return a general verdict therein. The court ordered that the issue as to the execution and delivery by Mrs. Rush and her husband of the note and mortgage, contained in the first and second paragraphs of defendant's answer, be submitted to the jury, and that the issue formed by the third paragraph of his answer, alleging in substance that he was insane at the time of the execution of the deed by him to Harsin, and that the same was executed without consideration and was void, and praying for the cancellation of said note and mortgage, and a decree quieting his title to said land be tried to the court. After evidence was introduced by both parties, the court directed the jury to return a verdict in favor of the plaintiff on the issues submitted to it by the court, and made findings of fact; and the court on the equitable issues found the issues of law in favor of the plaintiff, and rendered judgment in accordance therewith. The ruling of the court refusing to submit all the issues of fact of the case to the jury upon the request of defendant Maas is the first alleged error assigned by plaintiff in error and relied upon for reversal of this cause.
The statute governing what issue shall be submitted to a jury is as follows: Section 4454 provides as follows: "All other issues of fact shall be tried by the court, subject to its power to order any issue or issues to be tried by jury or referred as provided in this Code." Wilson's Rev. & Ann. St. 1903, p. 1030. These sections of the statutes, prior to their adoption from the state of Kansas by the Legislature of the territory of Oklahoma, had been frequently construed by the Supreme Court of that state. Clemenson v. Chandler, 4 Kan. 558; Cavenaugh v. Fuller, 9 Kan. 233; Bradley v. Parkhurst, 20 Kan. 462; State Journal Co. v. Commonwealth, 43 Kan. 93, 22 P. 982; Morgan v. Field. 35 Kan. 162. 10 P. 448; Gillespie et al. v. Lovell et al., 7 Kan. 419; Wiscomb v. Cubberly, 51 Kan. 580, 33 P. 320. The issues in none of those cases, however, were exactly the same as the issues in the case at bar. The effect of the rule established in all of those cases is that, in a foreclosure proceeding where personal judgment for money is sought by plaintiff against defendant, the defendant is entitled to a jury trial, and that the equitable action of foreclosure is in such case converted into a legal action. The case at bar under the issues formed by the petition and defendant's answer containing his cross-petition is not alone an action for personal judgment for money and for judgment foreclosing the mortgage, but in addition thereto, it is sought to cancel a fraudulent mortgage, and to clear and quiet the title of defendant to the land in controversy. Morgan v. Field, supra, was an action brought by Field against the administrator of the estate of Dennis Morgan to recover upon a promissory note executed by Dennis Morgan in his lifetime, and to foreclose a mortgage given at the same time upon a certain 80 acres of land to secure the payment of the note. P.J. Morgan claimed some right or interest in the premises and was made a party defendant, just as Maas was in the case at bar. P.J. Morgan filed his separate answer, alleging that he was the owner in fee simple of the 80 acres of land in controversy; that his title was derived from a conveyance from Dennis Morgan to John G. Spivy, and from John G. Spivy and wife to himself. The court states the issues, and applies the rule in the following language: The holding of the court in this opinion is that, if by the pleadings in a foreclosure action the legal issues are disposed of and only equitable issues remain to be disposed of, defendant is not entitled as a matter of right to a trial by a jury on such issues. The difference in the issues in the case at bar from the issues in the case of Morgan v. Field, supra, is that defendant Maas in this case, unlike the defendant P.J. Morgan in that case, denied the execution of the note and mortgage sued upon, and the right of plaintiff to...
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