Patchell v. Garvin
| Decision Date | 10 July 1917 |
| Docket Number | 7974. |
| Citation | 168 P. 423,66 Okla. 184,1917 OK 363 |
| Parties | PATCHELL v. GARVIN. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Nov. 6, 1917.
Syllabus by the Court.
Under section 450, Wilson's Rev. & Ann. St. 1903 (section 726, Comp. Laws 1909), in force at the time of the execution and delivery of the warranty deed here, unmatured installments of paving assessments are not deemed to be within the terms of the general covenant or warranty contained therein.
Under the findings of fact here by the court, to the effect that the agent of the defendant in error practiced a fraud upon the plaintiff in error in the execution of the contract made between parties, in that said agent represented that all of the paving assessments against the property conveyed had been paid, which was relied upon by the purchaser, the court, in refusing to allow a credit therefor upon the purchase-money note sued upon, misapplied the law, as the same, under the state of facts, constitutes a defense pro tanto to the note.
Commissioners' Opinion, Division No. 3. Error from District Court, Garvin County; O. B. Swank, Judge.
Action by Susan Garvin, executrix of the estate of Vivian Garvin against O. W. Patchell. Judgment for plaintiff, and defendant brings error. Reversed, and cause remanded for new trial.
S. C Treadwell, of Oklahoma City, for plaintiff in error.
Thompson Patterson & Farmer, of Pauls Valley, for defendant in error.
About the 15th day of November, 1910, one Susan J. Garvin sold and conveyed to the plaintiff in error, lot 9, block 79, in the city of Pauls Valley, and conveyed the same to him by a general warranty deed, which contained the following habendum:
"To have and to hold said described premises unto the second party his heirs and assigns forever, free, clear and discharged of and from all former grants, charges, taxes judgments, mortgages and other liens and incumbrances of whatsoever nature."
In order to secure the payment of a part of the purchase price plaintiff in error executed to Mrs. Garvin his certain note for $2,000 and secured the same by a mortgage upon the property, which note was, after maturity, assigned to Vivian Garvin, and after her death her executrix sued to recover the balance due upon said note.
The plaintiff in error assigned two reasons why a recovery should not be had against him: (1) He contended that the agent of Susan Garvin, in the negotiations for the sale of said property, made certain representations to him which induced him to buy the same, and that he relied upon said representations, and that said representations were false, in that said agent represented to him that the paving assessments upon said property had all been fully paid by her, when as a matter of fact only two of said paving assessments had been paid, leaving unpaid at the time eight of said installments, aggregating $256. (2) That the existence of the eight unpaid installments for paving assessments was a breach of the warranty of the deed, and he pleaded the amount due thereon as a defense to this action.
This court, in Knight v. Clinkscales, 152 P. 133, said:
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