Morse v. Bd. of Com'Rs of Marshall Cnty.

• Decision Date: 04 December 1934
• Docket Number: Case Number: 23404
• Citation: 38 P.2d 945,1934 OK 700,169 Okla. 600
• Parties: MORSE et al. v. BOARD OF COM'RS OF MARSHALL COUNTY.
• Court: Oklahoma Supreme Court

1934 OK 700

38 P.2d 945

169 Okla. 600

MORSE et al. v. BOARD OF COM'RS OF MARSHALL COUNTY.

Case Number: 23404

Supreme Court of Oklahoma

Decided: December 4, 1934

Syllabus

¶0 1. Eminent Domain--Condemnation Proceedings--Rights of Mortgagee.

In this state, when private property is sought to be taken for public use without the consent of the owner under statutory or constitutional authority, all presumptions indulged are in favor of the person whose property is sought to be taken without his consent. The provisions of the Constitution, art. 2, sec. 24, are broad enough to include a mortgagee whose mortgage has not been paid, or who has obtained a deficiency judgment on foreclosing the same, as being a party in interest upon whom reasonable notice must be served. A mortgagee also comes within the meaning of that section, "any party aggrieved shall have the right of appeal, without bond, and trial by jury in a court of record."

2. Same.

A mortgagee of property sought to be taken in condemnation proceedings is an owner or person interested in the property, and as such, is entitled to compensation from the condemning party to the extent of his interest, and the same rule applies to an assignee or grantee of the mortgage. The award of the commissioners is a substitute for so much of the mortgaged property as is appropriated for public use, and the mortgagee has in equity a lien on the award to the extent of the mortgage debt, or to the extent of the deficiency where there has been a foreclosure sale.

3. Same--Waiver by Mortgagee of Right to Sue for Trespass or in Ejectment by Standing by and Permitting Public Improvements to Be Made.

A mortgage lien on land in condemnation proceedings cannot be destroyed or taken, unless said mortgagee is a party to said proceedings, and where said mortgagee stands by and allows the public to spend the taxpayers' money in making public improvements, he waives this right to bring a suit for trespass or ejectment, and will be regarded as having acquiesced therein, and is restricted to a suit for the damages he has suffered by reason of the taking thereof.

4. Same--Rights of Mortgagee Where Land Taken by Municipality for Highway--Effect of Foreclosure.

A municipality which takes a right of way grant for road purposes, where the land is subject to a prior mortgage or mortgages, takes the said right of way subject to the terms and conditions of said mortgage or mortgages. In a proceeding to foreclose said mortgage or mortgages, the mortgagee or mortgagees have the right to look to the land conveyed, and may sell the interest of the municipality so acquired, thus divesting the municipality of its interest, especially where the municipality is a party to the proceedings.

5. Same--Right of Action Against Municipal try for Damages by Purchaser of Land at Sheriff's Sale--Limitation of Actions.

A purchaser of land at a sheriff's sale, in which proceedings a county or other municipal try is a party defendant, who receives a sheriff's deed therefor, is entitled to damages, where the county or other municipality continues to use any part of said land for public purposes, unless there is an adjudication in favor of the county or other municipality that it is the owner of said land free and clear of said mortgage or other lien. The statute of limitations does not commence to run against the purchaser until the execution and delivery of said sheriff's deed.

6. Same -- Counties -- Special Limitation Statute Held not to Require Filing of Claim Against County as Prerequisite to Suit for Damages for Withholding Possession of Realty.

Section 7458, O. S. 1931, which provides that "no account against the county shall be allowed unless presented within two years after the same has accrued," is a special limitation upon the authority of the board of county commissioners to allow a counts against the county unless presented within two years, and does not require one who has a claim for damages against the county because of the wrongful excluding of him from possession of his real property to the his claim with the board of county commissioners as a prerequisite to maintain his action in court for such damages.

Appeal from County Court, Marshall County; Geo. L. Sneed, Judge.

Action by Agnes L. Morse, Mary Armstrong, Henry W. Ulrich, and Geo. R. Fish & Company against the Board of County Commissioners of Marshall County, Okla. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

Reuel W. Little, for plaintiffs in error.

E. S. Hurt, Co. Atty., for defendant in error.

PER CURIAM.

¶1 As the parties hereto occupy the same relative positions they occupied in the trial court, they will be referred to as the plaintiffs and the defendant.

¶2 This is an action brought by the plaintiffs, as the owners and lien holders of certain real estate which was taken and appropriated by the said defendant for its own use and purpose, to wit, a public highway, without the consent of, or compensation to, said plaintiffs, who claim that said appropriation by said defendant was wrongful and without any process of law whatsoever, and was taken under a purported right-of-way grant given said defendant by one Alec Chastain, the owner of the legal title, which said grant was dated November 24, 1925, and recorded May 8, 1926, in the office of the county clerk of Marshall county; that at the time of the said taking by the defendant, the said plaintiffs had an existing mortgage for $ 4,000, dated May 26, 1923, and, a second mortgage on said land, through which said highway was constructed by said defendant, which said mortgages were and had been duly recorded in the office of the county clerk of Marshall county, thereby giving notice to said defendant, at the time of said taking, of the existence of a lien in favor of said plaintiffs by virtue of said mortgages. That on December 10, 1925, a suit was instituted to foreclose said second mortgage, and after judgment thereon, a sheriff's deed was executed on December 5, 1927, and a deficiency judgment taken for more than the amount of damages claimed by the plaintiffs in this cause.

¶3 On October 1, 1928, a claim was filed with the board of county commissioners for the sum of $ 147 for the taking of 2.1 acres of land for said highway purposes. Said claim was disallowed. On October 29, 1928, suit was commenced by said plaintiffs for the sum of $ 147 and attorney fees, against said defendant.

¶4 The defendant filed its answer and cross petition on October 31, 1928, which consisted of a general denial, and the allegation that plaintiffs were guilty of laches and allowed said high way to be constructed without asserting any right, title, or interest in and to said land; that the statute of limitation had run in that said plaintiffs had failed for more than two years to file said claim for damages with the defendant, after said highway was constructed, and said plaintiffs were barred from setting up any claim against said defendant.

¶5 A jury was waived and said cause tried to the court. The court made the following findings of fact and conclusions of law:

"That the defendant, the board of county commissioners of Marshall county, state of Oklahoma, has filed herein its answer by its county attorney, which answer was filed October 31, 1928, and upon the issues joined, the court finds that plaintiffs at the time of filing suit herein were the owners of the legal and equitable title in fee simple in and to the premises herein and that at the time of filing suit herein a foreclosure of a second mortgage owned by Geo. R. Fish & Company had been made and deeds conveying said lands were executed to Agnes L. Morse, and that there is a $ 4,000 mortgage outstanding on said land and premises. That sheriff's sale was confirmed herein on fore clause of the second mortgage on the 5th day of December, 1927.

"That in the spring of 1926 the board of county commissioners of Marshall county, state of Oklahoma, surveyed a road across the premises and lands described in plaintiffs' petition and said road was 60 feet in width and approximately 1,657 feet, in length, and that said right of way was taken and appropriated without the consent of plaintiffs in this suit, the holders of the first and second mortgage at the time of the taking thereof, and that the same cut diagonally across a 40-acre tract of said land and premises herein, leaving approximately 12 acres on one side and the balance on the other side of the road, and that the county constructed a road, being a gravel road, across said land aforesaid. That in constructing said road the county took and appropriated for the use of said road approximately two and one-tenth acres of land.

"The court further finds specifically that the value of plaintiffs' security was not diminished by reason of the road going through the land, and that plaintiffs in fact were benefited by reason of said road, and that said road provided away and means of transportation through said farm, which was more convenient than that used prior to the construction of said road and that the security of the plaintiffs was not diminished by reason of the construction of said road, and that plaintiffs being benefited thereby, because of said road, and are not entitled to recover against the defendant for any sum whatsoever, to which finding of the court the plaintiffs then and there excepted and their exceptions are allowed.

"The court concludes as a matter of law as follows' That plaintiffs would be entitled, under the evidence submitted, to the value of the diminution of the land and premises, but that said land and premises were benefited by reason of the construction of said road. As a matter of law they are not entitled to recover anything herein, to which conclusion of the court on the matter of law, the plaintiffs except and their exceptions are allowed.

"It is, therefore, ordered, adjudged and decreed by the court that the plaintiffs take nothing and that the defendant re

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