McIndoo v. Brown

• Decision Date: 08 February 1927
• Docket Number: 16705.
• Citation: 256 P. 743,125 Okla. 88,1927 OK 35
• Parties: McINDOO v. BROWN et al.
• Court: Oklahoma Supreme Court

256 P. 743

125 Okla. 88, 1927 OK 35

McINDOO v. BROWN et al.

No. 16705.

Supreme Court of Oklahoma

February 8, 1927

Rehearing Denied April 5, 1927.

Second Petition for Rehearing Denied June 7, 1927.

Syllabus by the Court.

Where a party seeks equitable relief as against another who has advanced money to his benefit, releasing a mortgage and loan on real estate, and who owns and holds a mortgage by assignment executed by the one with whom the complaining party had entered into a contract of sale, afterwards repudiating the same, such equitable relief will not be granted or the mortgage pleaded as a cloud upon the title canceled, unless the party to whose benefit the money has been advanced repays the same; for he who seeks equity must do equity.

Appeal from District Court, Tulsa County; Z. I. J. Holt, Judge.

Suit by Davis Brown against Nettie M. McIndoo, for specific performance, in which Davenport, Ratcliffe & Bethel, a corporation, intervened, and another. From an adverse judgment, defendant appeals. Affirmed.

Elliott & Nicodemus, of Tulsa, for plaintiff in error.

Ellis A. Robinson and Quincy J. Jones, both of Tulsa, for defendants in error.

BRANSON C.J.

Error is prosecuted herein from the district court of Tulsa county. In said court, Davis Brown, as plaintiff, brought suit against Nettie M. McIndoo, as principal defendant for specific performance of a contract of exchange of real property. Davenport, Ratcliffe & Bethel, a corporation intervened. The said Davis Brown will herein be referred to as plaintiff, Nettie M. McIndoo as defendant, and Davenport Ratcliffe & Bethel as intervener.

The contract out of which the controversy arose was executed by the plaintiff on the 31st day of May, 1924. It was a real estate exchange contract. It recited that plaintiff owned some farm land in Mays county on which there existed a mortgage, to be assumed by the defendant, in the sum of $2,000; that the defendant owned some residence property in the city of Tulsa on which there was a mortgage of $2,800 plus, to be assumed by the plaintiff; that the contract was to be performed within 30 days, 15 days additional to be allowed to either party to adjust any objections found to the title. On the 8th day of July, the attorney for the defendant approved, by means of a letter addressed to her, the title of the plaintiff to the Mays county land, subject to minor exceptions, which apparently could have been corrected. Pending their correction, and on the 14th day of July, the defendant determined that she would not comply with the contract, and, on the 16th day of July, notified the parties of this determination. In the meantime, and about the middle of June, the plaintiff applied to the intervener for a loan of $3,700 on defendant's property. Intervener's agent went to the residence, and the defendant showed the house and premises to such agent; the agent and representative of the said intervener stating to her that intervener expected to make a loan on the property to the plaintiff. The loan was made; the mortgage being executed on defendant's property to the Oklahoma Savings & Loan Association of Oklahoma City represented by intervener in the city of Tulsa. Out of the proceeds of said loan, the mortgage theretofore executed by the defendant and existing on her property, to the Local Building & Loan Association, was paid to the extent of more than $2,800, the amount remaining due thereon. This was about the 20th of June. At the time the defendant as aforesaid refused to carry out the contract, the mortgage on her property, which was her personal obligation, had been satisfied for more than 15 days. The Oklahoma Savings & Loan Association, not satisfied with the condition, was relieved thereof by its representative, the intervener, and the mortgage assigned to the intervener, and in this action the intervener set up this situation, and prayed that it be decreed a lien upon defendant's property the amount of the money that had been paid to satisfy the previous mortgage executed by the defendant to the Local Building & Loan Association of Tulsa. Such prayer was by the trial court granted, and it is to reverse this judgment that the defendant prosecutes error here.

It must be noted, as stated supra, that, after the defendant's mortgage had been paid on her property from money advanced first by intervener's principal and then paid the intervener, she repudiated her contract before the time expired within which any correction as to the title might be made. Later her attorney approved the title. In this connection, attention should be called to the fact that there was nothing in the contract that made time of its essence. Intervener prayed for equitable relief.

The position of the plaintiff in error in this court is, as stated in her brief, that any mortgage given by plaintiff upon her property was without her knowledge or consent, and that any money advanced by the interveners in the payment of a previous existing mortgage on her property was paid...