Stark v. Duvall
| Decision Date | 30 July 1898 |
| Citation | 54 P. 453,7 Okla. 213,1898 OK 89 |
| Parties | STARK et al. v. DUVALL et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. If one of the parties to a contract makes it impossible that he shall perform his promise, the other party may treat the contract as broken, and bring as action immediately.
2. "Alienation," applied to the transfer, of property involves the complete and absolute exclusion from him who alienates of any remaining interest in the thing transferred and involves the complete transfer of the property possession of land, tenements, or other things, to another.
3. The entryman, under section 2291 of the Revised Statutes of the United States, who swears that "no part of the land" which he seeks to have conveyed to him from the United States "had been alienated," may mortgage his claim before final certificate, in order to procure money with which to improve his land, or for any other purpose provided he seeks in good faith to acquire the land as a homestead; and such mortgage will not be alienation, under the statute.
4. Under such circumstances, the mortgagor will be estopped from defeating by his own act the operation and enforcement of the lien which he has created, notwithstanding that the mortgage may have been made before final receipt.
5. Section 2296 of the Revised Statutes of the United States which provides that "no lands acquired under the provisions of this chapter shall, in any event, become liable to the satisfaction of any debt contracted prior to the issuing in the patent therefor," does not prohibit the borrowing of money and the mortgaging of the land before or after final receipt. The statute is a protection to the homesteader, and not a limitation upon his voluntary control over the land, in disposing of and borrowing money upon it; and he cannot afterwards deny the validity of the mortgage, under the provision of the statute referred to.
Error from district court, Logan county; before Justice Frank Dale.
Action by C. H. Duvall against Rachel A. Wright and another to foreclose a mortgage, in which C. M. Stark and others, partners as Stark Bros., intervened. There was a judgment against then, and interveners bring error. Reversed.
The admitted facts in this case are that one frieze made a homestead entry upon a quarter section of land in the land office at Guthrie on October 29, 1889. On october 21, 1891 he and his wife entered into a written contract, styled an "Indenture," which was duly signed and executed by them before a notary public, and thereby acknowledged by them to be their free act and deed, by which they agreed to purchaser from the plaintiffs in error, for the sum of $679, 3,950 fruit trees, to be planted upon the land described in the indenture, and which provided that the debt should be paid by the payment of one-half of the gross amount of the sale of the fruit of the trees in each year, to the plaintiffs in error; the final payment to be made within 10 years from the date of the instrument. It was expressly stipulated in the indenture, on behalf of Frieze and his wife, that the indenture should be a lien upon the real estate described therein, until the full amount, with the interest, should be paid, and that in case of the failure of the contracting parties to pay the debt the real estate should be subjected to the payment thereof; a statement being at the same time made that the property was free and clear of incumbrances, and that the title was perfect. This instrument was duly recorded in the office of the register of deeds of Logan county on November 2, 1891. On December 29, 1894, Frieze made final proof under the homestead laws of the United States, receiving in evidence thereof the receiver's final receipt. On the ___ day of ___, 1894. Frieze and his wife conveyed the land by warranty deed to Rachel A. Wright, at the same time surrendering possession of the land to her; and thereupon, about the same time, Rachel A. Wright, joined by her husband, George D. Wright, both defendants in error, gave to Frieze, as a part of the consideration for the land, their securing the note. Thereafter Frieze transferred the note to Duvall, who instituted suit for judgment on the note, and for foreclosure of the mortgage. The plaintiffs in error intervened in the case, setting up the indenture made by Frieze to them on October 21, 1891, averring the facts heretofore stated, and also charged that they had themselves fully complied with their part of the agreement, delivering the trees as agreed, and that they were planted upon the land by Frieze; that a lien had thus been created upon the land for the purpose of securing the payment of the full indebtedness therefor. The intervening petition of the plaintiffs in error, filed by leave of court, charged that Frieze and his wife had utterly abandoned and repudiated their agreement with Stark Bros., and rendered their performance of the agreement impossible; that the mortgages lien of Stark Bros., created by the indenture, became good and complete from the time of the final receipt; and that the whole became due to the plaintiffs in error forthwith from the time that Frieze had abounded and repudiated the agreement by conveying the land by warranty deed to Rachel A. Wright, and taking from her and her husband a mortgage for the sum of b5 to secure a part of the payment therefor. The intervening petition of the plaintiffs in error charged that the Wrights had full notice and knowledge of the agreement and indenture of Frieze with Stark Bors., and the prior mortgage lien thereby upon the land, and that, in order to escape the liability of the plaintiffs in error upon his contract with them, he had fraudulently transferred the note to Duvall, the plaintiff, so that...
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