Merritt v. Park Nat. Bank of Sulphur
| Decision Date | 03 February 1920 |
| Docket Number | 9593. |
| Parties | MERRITT et al. v. PARK NAT. BANK OF SULPHUR et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The burden of proving the homestead character of land is on the one asserting it.
The record examined, and we find that the evidence is not sufficient to impress the lands involved with a homestead character, and that whether or not plaintiff was an innocent purchaser of the note sued upon could not be heard upon a motion to vacate judgment or upon an objection to confirmation of sale of lands involved.
Additional Syllabus by Editorial Staff.
Where defendants, in a suit on a note and to foreclose a real estate mortgage securing it, were out of and never had been in possession of the land, and there was no evidence that they ever intended to reside thereon, or had prepared to do so, the contention that the land was impressed with a homestead character could not be sustained.
Even though a mortgage on land to secure a note, made by husband and wife, was executed by the husband while a minor, that of itself was no defense to the action to foreclose the mortgage, where the land was owned by the wife and was not a homestead, as she could have mortgaged or sold it without his joinder.
Error from District Court, Pontotoc County; Geo. C. Crump, Judge.
Action by the Park National Bank of Sulphur, Okl., and others against T. E. Merritt and another. Judgment for plaintiffs and defendants, without appealing, protested against the confirmation of the sale, and sued to set aside the judgment. Objection and suit heard together, and objection to confirmation overruled and vacation of judgment denied, and defendants bring error. Affirmed.
B. C Wadlington, of Ada, for plaintiffs in error.
Geo. M Nicholson, of Sulphur, for defendants in error.
The plaintiffs in error will be referred to as defendants and the defendant in error will be referred to as plaintiff; they so appearing in the trial court.
The plaintiff sued defendants upon a promissory note executed by them in the sum of $1,150, and to foreclose a real estate mortgage given to secure payment of the same. The defendants plead various reasons why the plaintiff should not recover. The judgment of the trial court was in favor of the plaintiff on both the note and mortgage. There was no appeal from this judgment. The real estate covered by the mortgage was by the sheriff advertised and the return made to the court as by law required. In the meantime, however, the defendants brought a suit to set aside the judgment rendered against them, and when the confirmation of sale came on to be heard protested against the confirmation. The suit to set aside the judgment and objections to the confirmation by agreement of the parties were heard by the trial court at the same time. The court refused to set aside the judgment previously rendered,...
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