Snapp v. Scott

• Court: Oklahoma Supreme Court
• Writing for the Court: BAYLESS, Justice.
• Citation: Snapp v. Scott, 167 P.2d 870, 196 Okla. 658, 1946 OK 114 (Okla. 1946)
• Decision Date: 02 April 1946
• Docket Number: 32083.
• Parties: SNAPP v. SCOTT et al.

167 P.2d 870

196 Okla. 658, 1946 OK 114

SNAPP v. SCOTT et al.

No. 32083.

Supreme Court of Oklahoma

April 2, 1946

As Corrected May 11, 1946.

Appeal from District Court, Woods County; Tom R. Blaine, Judge.

Action by Lucy J. Snapp against Charles W. Scott and others for specific performance of a contract for sale and conveyance of land to plaintiff. Judgment for defendants, and plaintiff appeals.

Affirmed.

RILEY J., dissenting.

Syllabus by the Court.

1. The affidavit concerning military service of a defendant, called for, in certain instances, by the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.A.Appendix, § 520, is not jurisdictional in that the Act authorizes entry of judgment notwithstanding absence of the affidavit when an order of court directing such entry has been secured.

2. A county court being a court of general jurisdiction in probate matters, all presumptions are in favor of the validity of a decree of distribution regularly entered, in an administration proceedings of which it has jurisdiction.

3. The rule that all presumptions must be indulged in favorably to the proceedings leading up to a judgment will be applied to a decree of heirship and final distribution of an estate, and it will be presumed in the absence of countervailing evidence, that such a decree is predicated upon sufficient evidence showing the existence of all facts necessary to authorize the decree.

4. The Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.A.Appendix,§ 520, does not require the appointment of an attorney to represent a defendant who might be in the military service. It requires such appointment only where it is made to appear that the defendant is in the military service.

5. A default judgment taken without the affidavit required by the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.A.Appendix, § 520, is not void but voidable only at the instance of a service man, and by him only upon proper showing of prejudice and injury.

Hadwiger & Hadwiger, of Alva, for plaintiff in error.

H. C Crandall, of Alva, for defendants in error.

BAYLESS Justice.

This action is in its nature one for specific performance. On and prior to November 4, 1943, defendant in error, Charles W. Scott, also known as C. W. Scott, was the owner of record of a certain 160 acres of land in Woods County and on or about said date, entered into a contract with plaintiff whereby he agreed to sell and convey said land to plaintiff, subject to an oil and gas lease and subject to reservation of certain oil, gas, and other mineral rights for the sum of $800. He also agreed to furnish plaintiff an abstract of title. Warranty deed conveying said land to plaintiff was executed by defendant C. W. Scott and his wife, Dorothy Scott, and placed in escrow in the Central National Bank of Alva, and the $800 purchase price was likewise placed in said bank by plaintiff.

About November 20, defendant delivered to plaintiff an abstract of title covering said land. Plaintiff presented written objections to the title, raising four separate objections. All except one have been satisfactorily cured. The objection upon which this action is based arose as follows. The abstract of title showed that C. W. Scott acquired his title to the land from the four children, the sole heirs, of Goodeth E. Cooper, deceased, who at the time of her death, June 15, 1940, was the owner of the land; that an administrator of the estate of Goodeth E. Cooper was duly appointed and after having fully administered said estate, on January 17, 1941, filed his final account and a petition for determination of heirship and final distribution wherein it was alleged that the only heirs at law of said deceased were Marion Lewis Cooper, Mattie B. McConnell, Charlie Arthur Cooper, and Myrtle May Amweg, her children. Said petition was set for hearing February 7, 1941, and notice was given and published as required by law. On the date of the hearing, no one appeared except the administrator, whereupon the court, upon hearing, entered final decree determining that the four children above named were the only heirs at law of said deceased, and distributing the land to them as such heirs.

Defendant C. W. Scott thereafter obtained deeds from said heirs, conveying said land to him.

In the proceedings and hearing on the petition for determination of heirship and final distribution, there was no affidavit, required in certain cases by the Soldiers' and Sailors' Civil Relief Act of 1940, passed by Congress. 50 U.S.C.A.Appendix, § 520.

Plaintiff asserted that the abstract did not show merchantable title and insisted that defendants cure the defect. Defendants asserted that the abstract showed merchantable title and threatened to withdraw their deed from escrow. Thereupon plaintiff commenced this action against C. W. Scott and wife and said bank, wherein, in effect, he seeks delivery of said deed with the alleged defect and claims abatement or deduction from the purchase price in the sum of $196 for the alleged breach of the agreement to furnish abstract showing merchantable title, alleging the sum of $125 as the reasonable and necessary cost of correcting the title, $21 as the necessary cost of making supplemental abstract which would show the correction in the title, and $50 attorney fee.

Defendants C. W. Scott and Dorothy Scott answered, asserting that the abstract furnished by them showed merchantable title and that they were willing for the bank to deliver the deed to plaintiff upon payment to them of the full purchase price of $800. It is admitted that the defendant bank is a mere stakeholder and not otherwise interested.

The cause was submitted to the court upon an agreed statement of facts, resulting in a finding that the defendants Scott had submitted to plaintiff a merchantable title and that judgment should be entered for defendants. Judgment was entered accordingly and plaintiff appeals, asserting that the court erred in not rendering judgment for plaintiff on the pleadings and agreed statement of facts and that the judgment of the trial court is contrary to law.

The sole question is whether, under the record, defendants presented a merchantable title. The only defect in the title asserted by plaintiff is the failure of the administrator of the estate of Goodeth E. Cooper to file the non-military service affidavit called for by the Soldiers' and Sailors' Civil Relief Act of 1940 which provides:

'In any action or proceeding commenced in any court, if there shall be a default of any appearance by the defendant, the plaintiff, before entering judgment shall file in the court an affidavit setting forth facts showing that the defendant is not in military service. If unable to file such affidavit plaintiff shall in lieu thereof file an affidavit setting forth either that the defendant is in the military service or that plaintiff is not able to determine whether or not defendant is in such service. If an affidavit is not filed showing that the defendant is not in the military

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