McWhorter v. Brady
| Decision Date | 18 November 1913 |
| Citation | 140 P. 782,41 Okla. 383,1913 OK 661 |
| Parties | MCWHORTER v. BRADY ET AL. |
| Court | Oklahoma Supreme Court |
Rehearing Denied May 12, 1914.
Syllabus by the Court.
The doctrine of lis pendens under the common law was based on the theory of public policy, while under the statute it is treated as an element of the law of notice.
It is essential to the existence of a valid and effective lis pendens that three elements be present, viz: First, the property must be of a character to be subject to the rule second, the court must have jurisdiction both of the persons and the res; third, the property or res invoked must be sufficiently described in the pleadings.
Record examined and held under the circumstances of the case the property was sufficiently described, and that the law relating to lis pendens was substantially complied with.
A homestead, the title to which is in the husband, cannot be sold or otherwise alienated by the husband without the wife joining in the conveyance, unless the wife has voluntarily abandoned the husband or, for any cause, has taken up her residence out of the state for a period of one year or more. A deed to a homestead executed by a husband without such abandonment or removal of residence on the part of the wife is void.
Where in a divorce case a decree had been denied both parties, but the wife had been enjoined from interfering with the husband's possession of the homestead, she was not thereby divested of her right or title to and in the homestead, but was yet the legal wife of the husband, and any attempt by the latter to sell the homestead without the wife's consent or without her joining in the conveyance is void.
Facts examined, and held, that plaintiff in error has no title or color of title in and to a homestead attempted to be conveyed by the husband without being joined in the conveyance by the wife.
Commissioners' Opinion, Division No. 1. Error from District Court, Beckham County; John J. Carney, Judge.
Action by Ellen Brady and others against R. S. McWhorter to recover possession of real estate. Judgment for plaintiffs, and defendant brings error. Affirmed.
Geo. L Zink and J. H. Cline, both of Hobart, for plaintiff in error.
Jno. B Harrison, of Oklahoma City, and Arthur Leach, of Sayre, for defendants in error.
This is an action in the nature of ejectment by Ellen Brady and Elmer Brady, Johanna Brady, Adda Lillian Brady, and Bunyon Francis Brady, minors, against R. S. McWhorter to recover possession of certain described real estate in Beckham county, Okl. It appears from the record that J. H. Brady and Ellen Brady were husband and wife; that the land involved in this controversy was a government homestead which had been filed upon and proved up by Brady. On July 3, 1908, Ellen Brady brought suit in the district court of Beckham county against J. H. Brady for divorce on the grounds of habitual drunkenness and cruel and inhuman treatment, and therein asked for the custody of their four minor children, and for an equitable division of their property, including the homestead, and also sought to enjoin her husband from selling or disposing of any of their property until the termination of the suit. The husband, J H. Brady, was duly served with summons on the 8th day of July, 1908, and return thereof was made and filed on the same day. On July 10, 1908, two days later, the husband attempted to sell and convey the homestead by warranty deed to R. S. McWhorter, the plaintiff in error herein. It appears from the record that the wife had no knowledge of this conveyance, except the constructive knowledge that the recorded deed would give her, and it also affirmatively appears that she did not join her husband in the execution of the deed to McWhorter. The action for divorce was tried January 29, 1909, and the wife was given a decree of separation, the custody of the minor children, and the possession of the homestead, that being all the land owned by the parties at the time. In said divorce decree, the husband, J. H. Brady, was perpetually enjoined and barred of any and all right of possession to the homestead, until the further order of the court. On July 29, 1909, the plaintiff in error, being in possession of the land by tenant and refusing to give possession, was made defendant in this suit for possession by Ellen Brady. The plaintiff in error answered by general denial and cross-petition. Prior to the trial, it was made to appear to the court that the minor children of Ellen and J. H. Brady had an interest in the tract of land, whereupon the court ordered them made parties to the action and appointed a guardian ad litem for them, who appeared and filed a general denial for them. The cause was tried in February, 1911, and resulted in a judgment in favor of the plaintiff and her minor children for the possession of the land in controversy, until the further order of the court.
In addition to the above facts, it is also gathered from the record that the land in controversy, prior to statehood, was situated in Greer county; that, by virtue of the provisions of the Constitution creating Beckham county, the tract after statehood was situated in said Beckham county; that the said J. H. Brady made final proof and received his final receipt covering said tract of land on the 15th day of March, 1905, said final receipt being recorded in Greer county on April 1, 1906, and the patent from the United States covering said tract of land was issued to the said Brady on October 10, 1905, the patent also being recorded in Greer county on the 6th day of April, 1906. It is also disclosed by the record that the relations between Brady and his wife were anything but amicable; that they frequently quarreled; and also that they had separated several times, one separation occurring in the summer of 1906, when the wife left her husband on account of his cruel treatment. The evidence shows that thereafter she returned to the husband, and, as an inducement to secure her return he offered to, and did, deed her on April 10, 1906, the north half of the homestead. This deed was recorded in Greer county, Okl., on August 2, 1906. On the same day the wife made, executed, and delivered to him her warranty deed, conveying thereby the south half of the same tract of land, which deed was also recorded in Greer county, Okl. Shortly after this exchange of deeds, the parties separated again. This was the final separation. On April 3, 1906, Brady brought suit against his wife for divorce in the district court of Greer county; on May 3d, 1907, the wife appeared and filed her answer and cross-petition. Brady charged his wife, in the petition for divorce, with abandonment; the answer in the cross-petition by the wife charged cruelty and habitual intoxication; the cause was tried before the district court of Greer county on May 15, 1907, and both parties were denied a divorce. On the 16th day of May 1907, the next day after the decree had been entered in the divorce case as last aforesaid, J. H. Brady, the husband, commenced an action in the district court of Greer county against the plaintiff, Ellen Brady, his wife, the object and purpose of which was to cancel the warranty deed he had theretofore executed to her, conveying the north half of the homestead; personal service of summons was had on the plaintiff, and on the same day the district court issued a restraining order against Ellen Brady, the wife, restraining her from selling or disposing of the north half of said tract of land until the action to cancel the deed could be heard and determined, and also restraining her from interfering with the possession of J. H. Brady, her husband, in the cultivation of a crop on said land. Default was made by Ellen Brady in this cause, and on August 16, 1907, a judgment was entered against her and in favor of her husband, perpetually restraining Ellen Brady from interfering with her husband, J. H. Brady, in and to the whole of said land, and canceling the deed from the husband to the wife and divesting the title from the said Ellen Brady and vesting the same in the husband and father, J. H. Brady, as trustee for the minor children of said marriage. No appeal was ever taken from this decree by either party.
From the judgment against McWhorter in favor of Ellen Brady, as entered by the district court of Beckham county in February, 1911, giving her the possession of the land, the defendant, McWhorter, appeals, and assigns as error "that the judgment and decision of the court below is not sustained by sufficient evidence and is contrary to law." Under this assignment of error, several questions are raised by plaintiff in error in his brief, the first of which is that the description of the premises in the petition of Ellen Brady for divorce was insufficient to constitute lis pendens, and that therefore plaintiff in error had no legal notice of the pending divorce suit and is an innocent purchaser, etc.
The paragraph in the divorce petition which deals with the description of the land reads as follows: "The plaintiff has a homestead of 160 acres of land situated near Erick in Beckham county, Okl., of the value of about $3,500; that final proof has been made on said tract, that said homestead was filed upon, improved and put in cultivation by the joint efforts and labor of plaintiff and defendant."
The sections of our statute dealing with the subject are 4732 and 4733, Rev. Laws 1910, the first of which reads as follows:
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