Sabin v. Home Owners' Loan Corp.
| Decision Date | 28 May 1940 |
| Docket Number | 28788. |
| Citation | 105 P.2d 245,187 Okla. 504,1940 OK 295 |
| Parties | SABIN et al. v. HOME OWNERS' LOAN CORPORATION. |
| Court | Oklahoma Supreme Court |
Rehearing Denied July 16, 1940.
Application for Leave to File Second Petition for Rehearing Denied Sept 10, 1940.
Syllabus by the Court.
1. An agreement to pay, or the payment of a part of a note or interest thereon after the sum thus paid has become due, is not a sufficient consideration to support an extension of time for the payment of the note since such payment is merely a part performance of a duty already existing.
2. "Where there is a waiver of appraisement contained in a real estate mortgage, and a judgment of foreclosure thereof is entered decreeing the sale of said property, and a motion for new trial is filed and thereafter overruled, an order of sale may then issue out of the court six months from date of the judgment, for the reason that the effect of the overruling of the motion for new trial relates back to the force and purposes of the judgment originally entered." Jones v. Illinois Valley Trust Co., 135 Okl. 85, 274 P. 36.
3. The findings of the trial court, upon which is based a confirmation of a judicial sale, have the same weight as findings in a case tried to a jury, and will not be disturbed on appeal because of inadequacy of price alone where the evidence is in conflict and there is no showing of fraud collusion, or other irregularity, or that a higher bid probably could be obtained at a resale.
4. The Home Owners Loan Corporation is an instrumentality of the Federal Government and under the Federal Statute, 12 U.S.C.A § 1463(c), providing its loan shall be exempt from taxation the corporation is entitled to have a mortgage, executed to it, recorded upon payment of the usual recording fee without payment of additional mortgage tax imposed by state statute.
Appeal from District Court, Tulsa County; Prentiss E. Rowe, Judge.
Action by the Home Owners' Loan Corporation against Milton Roe Sabin and another upon a note and to foreclose a mortgage. A verdict was directed for plaintiff and a new trial denied and from the judgment, defendants appeal.
Judgment affirmed.
Bertha Florence Sabin, pro se.
O. K. Wetzel and Hardin Ballard, both of Oklahoma City, and A. M. Frazier, of Dallas, Tex., for defendant in error.
The Home Owners' Loan Corporation brought this action against Milton Roe Sabin and Bertha Florence Sabin, seeking judgment on a note and foreclosure of a mortgage given as security therefor. A verdict was directed for the plaintiff. From an order overruling a motion for a new trial and rendering judgment for plaintiff, defendants bring this appeal. The parties will be referred to as they appeared below.
In its petition, filed February 5, 1937, plaintiff alleged defendants, on February 4, 1935, executed a note in the principal sum of $7,282.35, with interest on the unpaid balance at five per cent, principal and interest payable $57.59 per month; that in event of default in payment of any installment for a period of 90 days the note provided the holder might at its option declare the remainder of the note due; that defendants executed a mortgage covering certain real estate as security for such note; that defendants had long been in default; and that in order to protect its lien plaintiff had been compelled to pay taxes for 1935 and 1936 in the sum of $316.03.
Defendants filed an amended answer. The part thereof pertinent to this appeal alleged: That on September 10, 1936, they entered into a contract whereby they would pay, October, 1936, two monthly installments, viz., $115.18, and in addition $100, making a total of $215.18, and would continue thereafter to pay two installments per month until the account was in good standing; that they complied with said agreement; that plaintiff breached the agreement by prematurely instituting this action; and that by this premature action defendants had been damaged in the sum of $7,500.
On the date of the trial, January 10, 1938, plaintiff's demurrer to various paragraphs of defendant's amended answer was sustained and trial was then had upon the general issue with the result stated in the first paragraph hereof.
Under their first proposition defendants argue and cite authorities only upon the contention the trial court erred in sustaining the demurrer to those paragraphs, alleging the extension agreement of September 10, 1936. The remaining assignments of error involving proceedings up to and including the order overruling motion for new trial are therefore abandoned.
It will be noted that at no place do defendants allege there was a new consideration for the alleged extension agreement. On the contrary the pleading shows the only change in their obligation under the original contract was to pay $100 plus two monthly installments on October 10, 1936, and two monthly installments during each successive month until all monies past due under the terms of the original agreement were paid.
In State ex rel. West, Atty. General, v. City of Sapulpa, 58 Okl. 550, 160 P. 489, it was held: "Where an original contract does not contemplate the making of a subsequent supplemental agreement, the original consideration will not support such subsequent agreement, and a subsequent supplemental agreement not forming a part of the original contract or supported by the original consideration thereof, or a new consideration, is void as between the parties."
The entire debt was past due at the time of the alleged extension agreement.
The defendants neither paid nor agreed to pay any more than they were under obligation to pay at that time according to the terms of the note and mortgage. Consequently there was not a sufficient consideration passing from defendants to plaintiff to support the alleged extension agreement. The paragraphs of the answer here involved did not set out facts sufficient to constitute a defense. Maker v. Taft et al., 41 Okl 663, 139 P. 970, 52 L.R.A., N.S., 328; Cain et al. v. Munger, 48 Okl. 24, 149 P. 1086; Frederick v. Tabor, 96 Okl. 99, 221 P. 505; Pound v. Campbell, 174 Okl. 331, 49 P.2d 1088; ...
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