Matthews v. HEIRS, EXECUTORS, ADMINISTRATORS, DEV., ETC., Civ. No. 73-226.

• Decision Date: 13 February 1974
• Docket Number: Civ. No. 73-226.
• Citation: Matthews v. HEIRS, EXECUTORS, ADMINISTRATORS, DEV., ETC., 378 F.Supp. 693 (E.D. Okla. 1974)
• Parties: Percy Leroy MATTHEWS et al., Plaintiffs, v. The HEIRS, EXECUTORS, ADMINISTRATORS, DEVISEES, TRUSTEES AND ASSIGNS, Immediate and remote, known and unknown OF Josephine Roberts MATTHEWS, Deceased, et al., Defendants.
• Court: U.S. District Court — Eastern District of Oklahoma

378 F. Supp. 693

Percy Leroy MATTHEWS et al., Plaintiffs, v.The HEIRS, EXECUTORS, ADMINISTRATORS, DEVISEES, TRUSTEES AND ASSIGNS, Immediate and remote, known and unknown OF Josephine Roberts MATTHEWS, Deceased, et al., Defendants.

Civ. No. 73-226.

United States District Court, E. D. Oklahoma, Civil Division.

February 13, 1974.

G. Wendell Cathey, Durant, Okl., for plaintiffs.

Richard Pyle, U. S. Atty., Muskogee, Okl., for defendants.

ORDER

DAUGHERTY, District Judge.

This action was commenced in the District Court of Coal County, Oklahoma to quiet title to certain real property in said County described as follows:

The North Half of the North Half of Section 14, Township 1 North, Range9 East.

The United States of America was joined as a Defendant in said action because two Judgments have been taken by the United States in this Court against Josephine Roberts Matthews and Oscar Hugh Matthews which Judgments are claimed to be a cloud on the title to the property in question.The first Judgment in the amount of $449.74 in case number 3448 Civil was filed May 29, 1953 and the second Judgment in the amount of $2,235.00 in case number 3592 Civil was filed October 29, 1953.The Petition alleges the property in question was owned by Josephine Roberts Matthews until her death on or about September 3, 1965, under an original allotment to her as a Chickasaw Indian.Oscar Hugh Matthews who died January 6, 1966 was her surviving spouse and the Plaintiffs allege they are the seven surviving children of the Judgment Debtors, both of whom it is claimed died intestate.Plaintiffs allege said Judgments have become dormant due to failure of the United States as judgment creditor to cause execution to issue every five years in accordance with the laws of Oklahoma.Plaintiffs seek a decree against the United States that said Judgments are null and void and should be cancelled and extinguished.

The United States has removed the action to this Court under the provisions of 28 U.S.C. §§ 1441(c)and1444.The United States has filed its Answer in which it admits the Judgments in question are dormant but denies they have become null and void.

The United States has filed a Motion for Summary Judgment claiming this Court lacks jurisdiction over the United States concerning the subject matter.It alleges that the original State Court action is one falling under the provisions of 28 U.S.C. § 2409a which provides:

"The United States may be named as a partydefendant in a civil action under this section to adjudicate a disputed title to real property in which the United States claims an interest, other than a security interest or water rights.This section does not apply to trust or restricted Indian lands, nor does it apply to or affect actions which may be or could have been brought under sections 1346,1347,1491, or 2410 of this title, sections 7424,7425, or 7426 of the Internal Revenue Code of 1954, as amended(26 U.S.C. 7424, 7425, and 7426), or section 208 of the Act of July 10, 1952(43 U.S.C. 666)."

The United States bases this contention on an assertion that the Judgments in question could possibly be the basis for a new lawsuit and a new Judgment which could ultimately become a new lien on the property in question.The United States asserts that actions under this section can only be initiated in the United States District Court and thus jurisdiction herein is defective because this action was commenced in the State Court.

To the contrary, Plaintiffs urge that this suit was properly commenced as a quiet title suit under the provisions of 28 U.S.C. § 2410 which provides:

"Under the conditions prescribed in this section and section 1444 of this title for the protection of the United States, the United States may be named a party in any civil action or suit in any district court, or in any State court having jurisdiction of the subject matter —

(1) to quiet title to,

(2) to foreclose a mortgage or other lien upon,

(3) to partition,

(4) to condemn, or

(5) of interpleader or in the nature of interpleader with respect to, real or personal property on which the United States has or claims a mortgage or other lien."

The Plaintiffs have filed their own Motion for Summary Judgment asserting that as the United States has admitted the Judgments in question are dormant, the Plaintiffs are entitled to a decree that same do not constitute liens on the property in question.

The Court finds and concludes that this action was properly commenced in the District Court of Coal County, Oklahoma under the provisions of 28 U. S.C. § 2410 as it is a quiet title suit in which Plaintiffs seek to have the Judgments of the United States removed as a cloud (judgment liens) on the title to the property in question.The assertion that the fact that the United States could obtain a new Judgment based on the Judgments in question and that this constitutes an interest in the property under 28 U.S.C. § 2409a is invalid because the same is a mere expectancy and constitutes no valid present interest in or claim to the property in question.The Motion for Summary Judgment of the United States should be overruled.

Judgments in United States District Courts constitute judgment liens in accordance with 28 U.S.C. § 1962 which provides:

"Every judgment rendered by a district court within a State shall be a lien on the property located in such State in the same manner, to the same extent and under the same conditions as a judgment of a court of general jurisdiction in such State, and shall cease to be a lien in the same manner and time . . ."(Emphasis supplied)

The applicable provisions of State law are found in 12 Oklahoma Statutes 1971 § 735 which provides:

"If execution shall not be sued out within five years after the date of any judgment that now is or may hereafter be rendered, in any court of record in this State, or if five years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor: Provided that this section shall not apply to judgments against municipalities.R.L.1910, § 5153."

Judgments in favor of the United States are subject to the same provisions concerning execution and dormancy as those in favor of private litigants.Custer v. McCutcheon, 283 U.S. 514, 51 S.Ct. 530, 75 L.Ed. 1239(1931).This Court takes judicial notice of the records of the Clerk of this Court and notes that the last execution issued in Case No. 3448...