Messner v. Carroll
| Citation | 159 P. 362,60 Okla. 90 |
| Decision Date | 25 July 1916 |
| Docket Number | 7350. |
| Parties | MESSNER v. CARROLL ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where the mortgagor executes to the mortgagee a deed to the property mentioned and described in certain mortgages which are given to secure certain notes, the notes are not canceled nor the mortgages released of record, and the mortgagee is permitted to retain them in his possession and under his control, and said deed is placed in a bank in escrow to be delivered to the mortgagee on a certain date, unless the indebtedness, principal and interest, are paid prior to that time, and on failure to pay the same at said date certain said deed is delivered, held, the deed should be treated as a mortgage, even though it is in form a deed, and should be foreclosed as such.
Commissioners' Opinion, Division No. 2. Error from District Court, Alfalfa County; James B. Cullison, Judge.
Action by T. J. Carroll against Henry L. Messner and others, in ejectment, rents and damages. Trial to the court and judgment for plaintiff, and defendant Messner brings error. Reversed and remanded, with directions.
Titus & Talbot, of Cherokee, for plaintiff in error.
H. C Kirkendall, of Cherokee, and E. C. Wilcox, of Anthony, Kan for defendants in error.
The parties to this case will be referred to and designated here as they were in the trial court.
On the 24th day of April, A. D. 1914, T. J. Carroll brought suit in ejectment in the district court of Alfalfa county, Okl against Henry L. Messner, Roy Martin, and Mrs. Roy Martin. The defendants Roy Martin and his wife, Mrs. Roy Martin, were made parties to the suit in order that any interest they have in the lands in controversy might be barred. They were served with process, but made no appearance or otherwise defended against the action, and it appears that they had no interest in the lands further than that they were tenants thereon. They will not be referred to further in this opinion. The contest was between T. J. Carroll, plaintiff, and Henry L Messner, the defendant.
It is alleged in the plaintiff's first amended petition that on the 2d day of March, A. D. 1911, the defendant Henry L. Messner and his wife, Matilda Messner, for a valuable consideration, made, executed, and delivered to the plaintiff, T. J. Carroll, and John C. Carroll, their certain promissory note in writing for $1,000, with interest at the rate of 10 per cent. per annum from date until paid, the same becoming due and payable on the 15th day of February, A. D. 1912, and that at the same time and for the purpose of securing said promissory note the defendant Henry L. Messner, joined by his wife, Matilda Messner, executed and delivered their certain mortgage in writing, whereby they mortgaged to T. J. Carroll, the plaintiff, and to John C. Carroll, the following described real estate situate in Alfalfa county, state of Oklahoma, to wit: The N.W. 1/4 of section 17, township 29, R. 9, W. I. M., containing 106.49 acres, less the right of way of the Kansas City, Mexico & Orient Railway and Chicago, Rock Island & Pacific Railway; that said mortgage was duly signed, acknowledged, and delivered to said plaintiff, and was thereafter duly filed for record in the office of the register of deeds of Alfalfa county, state of Oklahoma, on the 15th day of March, A. D. 1911; that thereafter the said John C. Carroll by assignment conveyed all of his right, title, and interest in and to said note and mortgage to the said T. J. Carroll, plaintiff.
It is further alleged that on the 2d day of March, A. D. 1911, the defendant Henry L. Messner, joined by his wife, Matilda Messner, made, executed, and delivered another certain promissory note for the sum of $1,000, for a valuable consideration to the plaintiff, T. J. Carroll, and to John C. Carroll, said note bearing interest at the rate of 10 per cent. per annum from date until paid, it becoming due and payable on the 15th day of February, A. D. 1912; that at the same time the said defendant, Henry L. Messner, joined by his wife, Matilda Messner, and for the purpose of securing said note, made, executed, and delivered a certain mortgage, in writing, to T. J. Carroll and to John C. Carroll, to the following described lands situated in Alfalfa county, state of Oklahoma, to wit: The W. 1/2 of the N.E. 1/4 and the E. 1/2 of the N.W. 1/4 of section 5, township 28, R. 9, W. I. M., containing 163.81 acres, according to the government survey; that said mortgage was duly signed and acknowledged, and was thereafter recorded in the office of the register of deeds of said Alfalfa county, state of Oklahoma, on the 15th day of March, A. D. 1911, and that the said John C. Carroll, by proper assignment, conveyed all of his right, title, and interest in and to said mortgage and note to said plaintiff, T. J. Carroll.
It is further alleged that on the 22d day of April, A. D. 1911, William T. Rush, joined by his wife, Gertrude Rush, for a valuable consideration, made, executed, and delivered to the plaintiff, T. J. Carroll, their certain promissory note in the sum of $250, which note became due and payable three years after date, together with interest thereon at the rate of 10 per cent. per annum from date until paid, and that at the same time and as a part of the same transaction and for the purpose of securing said indebtedness the said William T. Rush and Gertrude Rush, his wife, made, executed, and delivered their certain mortgage to said plaintiff, covering the following described real estate situate in Alfalfa county, state of Oklahoma, to wit: Lot 4 and the S.W. 1/4 of the N.W. 1/4 of section 5, township 28, R. 9, W. I. M., containing 81.21 acres; that thereafter and on the 16th day of October, A. D. 1911, said William T. Rush, joined by his wife, Gertrude, conveyed by warranty deed to the defendant Henry L. Messner, said real estate so mortgaged for the payment of said note of $250, and interest thereon, and in said deed said defendant agreed to pay said note.
It is further alleged that on the 29th day of March, A. D. 1913, the defendant Henry L. Messner and Matilda Messner, his wife, for the purpose of satisfying said notes and mortgages above set out and mentioned, executed and delivered to the plaintiff their certain warranty deed covering all of the lands above described, and that the plaintiff thereby has a legal estate, in fee simple, and also an equitable estate in and to all of the above-described lands, making a total acreage of 361.51 acres, less the right of way of the railroads above named; that said deed was duly executed, acknowledged, and delivered to the plaintiff, and by him caused to be filed in the office of the register of deeds of Alfalfa county, state of Oklahoma, on the 9th day of March, A. D. 1914, and recorded in book 15 at page 326, and that the plaintiff is entitled to the immediate possession of said premises, but that the defendant Henry L. Messner is unlawfully and wrongfully withholding possession of said premises from him, and that said Henry L. Messner has been wrongfully in possession of the property herein described since on or about or near the 28th day of March, A. D. 1913.
It is further alleged that the plaintiff has been damaged by said defendant in the sum of $400, because of the wrongful possession of said real estate, and that the reasonable rental value of said property is the sum of $200 per annum; that defendant is unlawfully and wrongfully keeping plaintiff out of the use and possession of said premises, and is collecting and using the rents and profits arising therefrom for his benefit, and in the prayer he further asks for all other proper relief.
To this petition several motions were filed and overruled and exceptions saved. On November 10th, A. D. 1914, the defendant, Henry L. Messner filed his answer to said first amended petition and denied: (1) All and singular the material allegations of said petition not expressly admitted; (2) denied that plaintiff had title to said real estate; (3) denied that plaintiff was entitled to possession thereof at the time of filing this action or at any other time, and in the prayer of his answer he asked for "all other and further relief to which in law and equity he may be entitled." A receiver was applied for in this case by the plaintiff and was by the court appointed; to which action of the court exceptions were duly saved and thereafter a motion was made by the defendant to vacate the appointment of receiver, which motion was overruled and exceptions saved. On November 14th, A. D. 1914, the same being a day of the regular November, A. D. 1914, term of the district court, this cause came regularly on for trial. The plaintiff introduced in evidence the deed and all of the notes and mortgages above referred to; they were properly marked for identification and admitted as evidence; also introduced in evidence without objection the following agreement:
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Investors' Mortg. Sec. Co., Ltd. v. Hamilton, 5707
... ... paid, and upon default the deed is delivered to the ... mortgagee, the deed is a mortgage. (Messner v ... Carroll, 60 Okla. 90, 159 P. 362.) ... Retention ... of the written evidence of the debt raises a strong ... presumption that the ... ...