Myers v. Carr

• Decision Date: 21 May 1935
• Docket Number: Case Number: 24474
• Citation: 173 Okla. 335,1935 OK 573,47 P.2d 156
• Parties: MYERS v. CARR et al.
• Court: Oklahoma Supreme Court

1935 OK 573

47 P.2d 156

173 Okla. 335

MYERS v. CARR et al.

Case Number: 24474

Supreme Court of Oklahoma

Decided: May 21, 1935

Syllabus

¶0 1. Judgment - Presumptions Favoring Validity of Judgments and Orders of District Courts.

The law presumes that the judgments, orders, and decrees of the district courts of Oklahoma, in all cases where jurisdiction of the parties and subject-matter exists, are valid and binding; and unless it affirmatively appears that jurisdiction was lacking or that the record shows upon its face that the court acted without jurisdiction, the law will presume that the orders, judgments, and decrees of such courts are binding upon the parties.

2. Appearance - Effect to Cure Defects in Process and Validate Judgment Previously Rendered.

When parties to suits pending in such courts appear and without raising or objecting to the jurisdiction thereof, and participate in proceedings involved in any such suit and invoke the judgment of the court therein, such appearances constitute a general appearance and cure all defects in the summons or the service thereof and validate any judgment theretofore rendered.

3. Mortgages - Validity of Foreclosure Sale Where Appraisement Waived - Sufficiency of Price.

In the sale of real estate under mortgage foreclosure, where appraisement is waived, the law does not fix or determine the price for which the mortgaged property must be sold in order to create a valid sale; and in any case where the sale price of such property is not so low as to shock the conscience of the court, such sale will be valid. Further held, that in this case the property having sold at $20,000, subject to a prior mortgage of $15,000, the same was a fair consideration and the confirmation thereof was proper and just.

4. Same - Filing of Praecipe for Execution or Order of Sale not Prerequisite to Valid Sale.

It is not a prerequisite to a valid sale of real estate under mortgage foreclosure that a praecipe be filed for an execution or order of sale, as the decree of court is all that is required and provides all necessary authority for issuance of an order of sale in the nature of a special execution.

5. Same - Sufficiency of Descriptive Matter or Terms Embodied in Advertisement of Sale - Failure to State in Notice That Sale Will Be Subject to Prior Mortgage Held not to Invalidate Sale.

The statutes of Oklahoma, being section 455, Okla. Stats. 1931, do not provide, except in a general way, the descriptive matter or terms that should be embodied in an advertisement of the sale of real estate under mortgage foreclosure. Held, that failure to embody in such notice that a sale will be made subject to a prior mortgage will not invalidate such sale. Further held, that such sale, showing by the sheriff's return that the property was sold subject to a prior mortgage, and in other respects regular, will, on confirmation, vest title in purchaser.

6. Same - New Trial - Motion to Set Aside Sale Proper Practice to Test Legality After Confirmation - Motion for New Trial not Authorized.

After confirmation of the sale of real estate sold under mortgage foreclosure, in order to test the legality of such sale, proper practice is to file timely objections by motion to set aside such sale, and a motion for new trial is not authorized.

Appeal from District Court, Garfield County; O.C. Wybrant, Judge.

Action by John Carr to foreclose real estate mortgage against C. H. Myers et al. Judgment for plaintiff, and defendant C.H. Myers appeals. Affirmed.

Wilson & Wilson, for plaintiff in error.

Simons, McKnight, Simons, Mitchell & McKnight, for defendants in error.

PER CURIAM.

¶1 This suit was brought by the plaintiff, John Carr, against defendants, C.H. Myers, William Moncrief, Emma A. Moncrief, John Peintner, John W. Showalter, D.H. Bane, E.M. Landof, and Geo. W. Athey, receiver. The plaintiff in his petition alleges that the defendant, C.H. Myers, and his wife, Christine L. Myers, executed their note for $28,860 to and in favor of L.F. Messman, obligating themselves to pay to the said Messman on August 1, 1930, said sum with interest at 7 per cent., and that to secure the payment of said note, said Myers and his wife executed and delivered their mortgage to said Messman on certain real estate, and it is further alleged that said note and mortgage were duly transferred to the plaintiff by assignment from the said L.F. Messman.

¶2 It is further alleged that after the execution of said mortgage, defendant Myers, who was then the owner of said real estate covered by said mortgage, executed a warranty deed to the defendants William Moncrief and Emma A. Moncrief, who, it was, alleged, specifically assumed and agreed to pay said indebtedness as a part consideration for said real estate; that thereafter said William Moncrief and Emma A. Moncrief made, executed and delivered to the defendant John Peintner a warranty deed to said real estate by the terms of which it was specifically agreed that said John Peintner would pay to the plaintiff said note and mortgage, and that said Peintner took possesson of said premises under and by virtue of said deed.

¶3 It is further alleged that after said Peintner obtained title to said property he entered into some character of a contract for the sale of said property to defendant John W. Showalter, the exact nature of which was unknown to plaintiff, and demanding that said Peintner and Showalter be required to set up any right, title or interest which either claim in and to said property, but that any claim that either of them had was subsequent and inferior to the rights of plaintiff under said mortgage.

¶4 It is further alleged that defendant Peintner filed an action in the district court of Garfield county against the defendants John W. Showalter, D.H. Bane, and E.M. Landof, growing out of a controversy between said Peintner and Showalter over the title of said property, and that therein defendant George Athey was appointed receiver of said property, with directions to collect the rents and profits, and to hold same subject to the order of the court.

¶5 The plaintiff further alleges that he does not known the exact nature of the claims of all of the defendants, but that if any such claims exist, whatever nature they are, the same are subsequent and inferior to the rights of plaintiff.

¶6 The plaintiff further alleges that there is due and owing to him on said mortgage and note $28,559.02 with 10 per cent. interest from and after August 20, 1931, and $1,000 as attorneys fees; and that plaintiff is entitled to a foreclosure of said real estate mortgage.

¶7 Wherefore, the plaintiff prayed judgment against defendants, C.H. Myers, William Moncrief, Emma A. Moncrief, and John Pointer for said sum and interest and attorneys fees and for a foreclosure of said mortgage and sale of said real estate; and that defendants and each of them be barred and foreclosed from all right, title and interest in said property and for such other and further relief as may seem equitable and just in the premises.

¶8 Other details are mentioned concerning the rentals and receivership and matters which are deemed immaterial so far as this case is concerned in this court.

¶9 The defendant Myers answered by general denial unverified, and the defendant John Peintner also filed his answer by a general denial, which was unverified. No other answers or pleadings were filed on behalf of the other defendants.

¶10 On the 28th day of January, 1932, the case was heard before the court, plaintiff being represented by his attorneys of record; defendant Myers being represented by his attorneys of record, and likewise defendant John Peintner being represented by his attorneys, and the other defendants, not being present either in person or by their attorneys, made default.

¶11 After hearing the evidence the court rendered judgment against defendants, C.H. Myers, William Moncrief, and Emma A. Moncrief, and John Peintner, for the sum of $28,599.02, with interest at 10 per cent. from August 20, 1931, and $1,000 as attorneys fees and costs, declaring the same to be a first and valid lien on the real estate covered by said mortgage, to wit, lots 15, 16, 17 and 18, and also a strip of land 12 1/2 feet wide adjoining the south side of lot 18, all in Jonesville addition to the city of Enid, Garfield county, Okla., subject only to a first mortgage held by the Deming Investment Company; and that unless said judgment should be paid within six months an order of sale should issue for the sale of said real estate without appraisement, to satisfy said indebtedness, interest, cost, and attorneys fees; that from and after said sale said defendants and each of them be forever barred and foreclosed of any right, title or interest in said real estate and every part thereof, to all of which the defendant C.H. Myers excepted, and his exceptions were allowed by the court.

¶12 Thereafter, on July 11, 1932, the defendant John W. Showalter, in the above-entitled cause consolidated with cause No. 12796, entitled John Peintner v. John W. Showalter, pending in the same court, filed his motion to fix the compensation of receivers and for an equitable division of furniture located in said real estate pursuant to a judgment entered in said case of Peintner v. Showalter on the 14th day of April, 1932, to which the plaintiff, John Carr, filed his answer claiming certain portions of the property involved on the grounds that same was covered by the mortgage to the plaintiff, John Carr.

¶13 Following these proceedings, after six months had expired, an order of sale was issued to the sheriff of Garfield county, commanding him to levy upon and sell said real estate as provided by law, to satisfy plaintiff's judgment, attorneys fee and costs, and the sheriff's return thereon stated that said real estate was advertised and sold subject to a first mortgage in favor of the Deming Investment Company for $15.000 and the accrued interest thereon; and that plaintiff, ...