State ex rel. Com'rs of Land Office v. Keller, 35351

• Decision Date: 15 December 1953
• Docket Number: No. 35351,35351
• Parties: STATE ex rel. COMMISSIONERS OF LAND OFFICE v. KELLER et al.
• Court: Oklahoma Supreme Court

Page 742

264 P.2d 742

1953 OK 371

STATE ex rel. COMMISSIONERS OF LAND OFFICE v. KELLER et al.

No. 35351.

Supreme Court of Oklahoma.

Dec. 15, 1953.

Syllabus by the Court.

1. In a foreclosure action where defendants jointly and primarily liable are served with summons and defendants not served are in privity with those served and held only an inferior interest in the land being foreclosed against, the plaintiff may recover a valid judgment against those defendants primarily liable and served and continue the case as to those not served, or dismiss as to them where their rights were acquired after the effective date of the mortgage being foreclosed. Sec. 178, 12 O.S. 1951.

2. A judgment is void on its face only where the judgment roll affirmatively shows that the trial court lacked (1) jurisdiction over the parties (2) over the subject matter, or, (3) jurisdictional power to render the particular judgment rendered.

3. Where a judgment is clearly divisible the entire judgment is not void because a single phase thereof is beyond the jurisdiction of the court, but is valid as to that portion which is within the power of the court to render.

4. Where a party voluntarily assumes a certain position in a legal proceeding and maintains that position, he will not thereafter, because his interest has changed, be permitted to assume a contrary position to the prejudice of a party who acquiesced in the position formerly taken by him. He is estopped from changing position to the prejudice of his adversary.

5. When one acquires valuable property rights in accordance with and relying upon the construction of a statute by the Supreme Court of this State, such rights are protected even though such decision is later overruled.

6. In an action to foreclose a real estate mortgage, where one of the judgment debtors died after entry of final judgment and decree of foreclosure, a valid order of sale may be issued without making the heirs and representatives of said deceased defendant parties to said judgment, as provided by Section 589, O.S. 1931, 12 O.S.A. § 1077. Ray v. Elson, 190 Okl. 245, 123 P.2d 245.

R. H. Dunn, Rupert E. Wilson, Jr., Oklahoma City, for plaintiff in error.

C. C. Wilkins, J. W. Dixon, Marietta, for defendants in error.

HALLEY, Chief Justice.

In 1921 R. A. Keller and wife, Lillian R. Keller owned 100 acres of land in Love County, Oklahoma and on November 15, 1921, they secured a loan of $1,250 from the Commissioners of the Land Office, herein called the Commissioners, and executed a note therefor and mortgage on their land to secure payment of the note, the principal being due November 15, 1926, and having attached to the note interest coupons due one each year for $31.25.

Upon failure to make the interest payments, the Commissioners on July 27, 1927, filed a foreclosure action in the District Court of Love County, C. W. Glazener, Teague Company, and W. C. Foster being made parties defendant under the allegation that these parties claimed some inferior interest in the land. R. A. Keller and Lillian Keller were served with summons, and these defendants filed a motion to quash service and summons.

In August 1933, the Kellers filed a motion alleging that on April 29, 1929, a judgment was rendered in favor of the Commissioners and against movants in the sum of $1,814.53 and foreclosing the Commissioners' mortgage, but providing that no deficiency should be entered against the Kellers and that the cause should be continued as to the other defendants who had not been served.

The Kellers further alleged that the Commissioners had failed and neglected to prepare and file a journal entry of the judgment which appears to have been entered upon stipulation, and that they had also failed to serve the other defendants or to make R. D. Fuller a party defendant, as had been authorized by the court.

The Kellers attached a copy of their proposed journal entry showing judgment upon their note and foreclosing the mortgage against their land. They prayed that notice be given to show cause why the proposed journal entry should not be entered nunc pro tunc.

Upon hearing this motion, the court ordered the parties to draw a journal entry. An application for the appointment of a receiver was granted and W. C. Butler appointed. The journal entry of judgment was entered July 31, 1943, showing judgment as of April 29, 1929.

September 24, 1943, the Kellers filed a second application to have a journal entry entered nunc pro tunc, showing judgment rendered on stipulation April 29, 1929. On September 30, 1943, a journal entry was filed and entered in accord with that above mentioned, containing a stipulation that no deficiency judgment should be entered against the Kellers, but gave the Commissioners a judgment for $1,814.53 with interest, and providing that if defendants failed to pay the judgment within six months an order of sale should issue ordering the sheriff to sell the land involved without appraisement and apply the proceeds upon the judgment.

On October 5, 1943, the Commissioners filed a motion to modify or vacate the judgment by eliminating the clause providing for no deficiency judgment, and alleging that such clause was beyond the authority of the Commissioners, or that the decree be vacated if modification could not be made. A minute dated October 28, 1943, recites that this motion was held premature since no deficiency yet existed.

March 20, 1945, the Commissioners asked that an order of sale issue. Such order was issued and executed by selling the land to the State for the sum of $2,000. The Commissioners moved that the sale be confirmed and order of confirmation was entered April 24, 1945.

December 5, 1950, the Kellers filed a motion to vacate the judgment, sale and order of confirmation upon the ground that the court did not have proper jurisdiction of defendants at the time judgment was entered; that summons was not served upon C. W. Glazener; that the judgment confirming the sheriff's sale was void because the court had no jurisdiction over C. W. Glazener and because R. A. Keller had died April 2, 1944, and the judgment against him entered September 30, 1943 was dormant and not revived; the order of sale, notice of sale and order of confirmation were all alleged to be void as being entered under a dormant judgment; that the judgment and sale constituted a cloud upon the title of defendants.

December 16, 1950, the Commissioners dismissed their action against the three defendants who were not served with summons.

The Commissioners also filed a response to defendants' motion to vacate and set up that all of the heirs of R. A. Keller, deceased, except Lillian Keller, had conveyed all their interest in the land to her, the surviving wife of R. A. Keller.

When the case came on for trial September 19, 1951, much documentary evidence was introduced. It consisted largely of deeds showing various conveyances of interest in the land, all of which were dated subsequent to plaintiff's mortgage. The court stated that the case was very unusual and complicated, but rendered judgment setting aside the judgment rendered in favor of the Commissioners, entered April 29, 1929, by nunc pro tunc order dated September 30, 1943. Five reasons were given for setting the judgment aside. They are as follows:

'1. That the Court did not have proper jurisdiction of the defendants.

'2. That the Court did not have jurisdiction of the particular matter covered in the judgment.

'3. That the Court did not have jurisdiction to include in the judgment a release of the deficiency judgment under and by virtue of a stipulation and agreement entered into in open Court by the plaintiff and the plaintiff and the defendant, R. A. Keller.

'4. That the Court did not have proper jurisdiction of the matter included in the judgment.

'5. That the Court was prohibited by law from entering the judgment.' C.-M. 138-139.

The Commissioners have appealed and submit six reasons why the judgment of the court in setting aside the foreclosure judgment, the sale of the land thereunder, and order of confirmation was erroneous.

The Commissioners first contend that the judgment rendered in their favor against R. A. and Lillian Keller on their note and foreclosing the mortgage was a final determination of the rights and liabilities of the named defendants. Both journal entries were prepared by these defendants and the case continued as to the other defendants. They cite Sec. 178, 12 O.S.1951, which is as follows:

'Where the action is against two or more defendants, and one or more shall have been served, but not all of them, the plaintiff may proceed as follows:

'First. If the action be against defendants jointly indebted upon contract, tort, or any other cause of action, he may proceed against the defendants served, unless the court otherwise direct; and if he recover judgment, it may be entered against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all, and the separate property of the defendants served; and if they are subject to arrest, against the persons of the defendants served.

'Second. If the action be against defendants severally liable, he may, without prejudice to his rights against those not served, proceed against the defendants served in the same manner as if they were the only defendants.'

Whatever interest was acquired by the defendants, Glazener, Teague Company, and W. C. Foster, was acquired from R. A. and Lillian Keller after these defendants had executed the mortgage to the Commissioners and pending the foreclosure action. Sec. 180, 12 O.S.1951 provides:

'When the petition has been filed, the action is pending, so as to charge third persons with notice of its pendency, and while pending no interest can be acquired by third persons in the subject matter thereof as against the plaintiff's title; but such notice shall be of no avail unless the summons be served or the first...