Owen v. Interstate Mortg. Trust Co.

• Decision Date: 09 May 1922
• Docket Number: 10588.
• Parties: OWEN v. INTERSTATE MORTGAGE TRUST CO.
• Court: Oklahoma Supreme Court

211 P. 87

88 Okla. 10, 30 A.L.R. 816, 1922 OK 165

OWEN v. INTERSTATE MORTGAGE TRUST CO.

No. 10588.

Supreme Court of Oklahoma

May 9, 1922

Rehearing Denied Dec. 12, 1922.

Syllabus by the Court.

No formal deed of assignment is necessary to transfer the title to a judgment. The assignment may be made by parol or in writing, and however made passes an equity which the courts will recognize.

There is no statute in this jurisdiction, and we know of no rule of equity, requiring notice of the assignment of a judgment to be given to any particular person in any particular manner.

Record examined, and held: (1) That in the circumstances of this case the plaintiff in error was under no obligation to give the defendant in error any further notice of the assignment of the judgment involved herein than was afforded by the record; (2) that the evidence fails to show any negligence on the part of the plaintiff in error that would entitle the defendant in error to the relief prayed for and granted.

One who, having no interest to protect, voluntarily loans money to a mortgagor for the purpose of satisfying and canceling a prior mortgage, taking a new mortgage for his own security cannot have the former mortgage revived and himself subrogated to the rights of the mortgagee thereon where he has failed to take an assignment of the prior mortgage, and has voluntarily paid and discharged the same of record.

Appeal from Superior Court, Muskogee County; Guy F. Nelson, Judge.

Action by the Interstate Mortgage Trust Company against William Owen. Judgment for plaintiff, and defendant appeals. Reversed, and cause remanded, with directions.

R. W Stoutz, of Muskogee, for plaintiff in error.

Gibson & Hull, of Muskogee, and W. A. Disch, of Parsons, Kan., for defendant in error.

KANE J.

This was an action upon a promissory note and to foreclose a mortgage, and the only question involved in this proceeding in error is whether the plaintiff in error is entitled to a first lien on the real estate described in the mortgage as assignee of a prior judgment as against the claim of defendant in error who claims a first lien as a mortgagee.

The facts necessary to determine this question may be briefly summarized as follows:

John Johnstone and Barbara M. Johnstone were the owners of the land on which the respective parties claimed a first lien. It is conceded that William Owen, the plaintiff in error, is the record owner and holder, by assignment, of a certain judgment rendered against the Johnstones in favor of J. S. Marshall and R. S. Marshall, which judgment is prior in time to defendant's mortgage. After the rendition of this judgment an order of sale was issued to which the sheriff made a return substantially as follows: I received the within order of sale on the 5th day of March, 1912, and as therein ordered and commanded, I have levied upon, appraised, and advertised for sale according to law the property in controversy, and afterwards on the day of sale the sum of $331.42 was paid into this office by John A. Connolly, which amount covers the judgment, interest, and costs as shown herein, with the understanding that said judgment be assigned to him, and I return this order of sale wholly unsatisfied. Subsequently Connolly assigned the judgment to the plaintiff in error, William Owen. Subsequently the defendant in error executed the mortgage under which it claims a superior lien without having actual notice of the judgment or the assignment thereof. Shortly after the execution of this mortgage the defendant in error discovered the actual existence of the judgment, but not of the assignment although it was charged with constructive notice thereof, and thereupon procured the attorney of record for the original judgment debtors to release the same of record as follows:

"This judgment paid and hereby is satisfied in full. Enloe V. Vernor, Attorney for J. S. Marshall et al."

It was further agreed and proven that at the time the entry of satisfaction was made by Mr. Vernor no money was paid to him, and that his action was the consequence of a conversation at that time, held between said Vernor and one of the original plaintiffs in the mechanic's lien case in which the judgment was rendered.

It was further stipulated between the parties that a large part of the loan secured by the mortgage was used by the agents of the mortgage company in paying off two mortgages prior in time to the judgment, and some taxes due on...