State ex rel. Com'rs of Land Office v. Lewis

• Decision Date: 18 June 1946
• Docket Number: 31992.
• Parties: STATE ex rel. COMMISSIONERS OF LAND OFFICE v. LEWIS.
• Court: Oklahoma Supreme Court

170 P.2d 237

197 Okla. 288, 1946 OK 197

STATE ex rel. COMMISSIONERS OF LAND OFFICE v. LEWIS.

No. 31992.

Supreme Court of Oklahoma

June 18, 1946

Appeal from District Court, Marshall County; J. I. Goins, Judge.

Action by F. L. Lewis against B. E. Adamson and others, including the Commissioners of the Land Office of the State of Oklahoma, to quiet title to land and cancel purported lien of a judgment alleged to be ancient and obsolete by reason of dormancy. From judgment cancelling such judgment lien, the State of Oklahoma on the relation of the Commissioners of the Land Office appeals.

Affirmed.

Syllabus by the Court.

1. The provisions of 12 O.S.1941 § 735 apply to money judgments recovered on loans of money by the Commissioners of the Land Office of the State of Oklahoma.

2. When the general lien of a money judgment has fully terminated or expired by virtue of the provisions of the statute, 12 O.S.1941 § 735, the owner of land formerly owned by the judgment debtor, has a clear, legal right to have his land title freed from any pretended or purported lien of such a judgment, and, generally, a landowner in such situation is entitled to maintain an action to remove such a cloud upon his title.

3. When the Legislature made definite provision for the expiration of such a judgment lien as above referred to, and also provided that the Commissioners of the Land Office might bring or defend civil actions in reference to the making and collection of loans on real estate, there was ample consent that if the Commissioners obtained such judgment lien and after the same had fully expired a citizen landowner might maintain action to cancel such obsolete lien.

HURST V.C.J., dissenting.

Everett H. Welborn and Bruno Miller, both of Oklahoma City, for plaintiff in error.

Reuel W. Little and Jack H. Smith, both of Madill, for defendant in error.

WELCH Justice.

Plaintiff sued as the owner of 20 acres of land in Sec. 1, Twp. 8 South, Range 5 East, in Marshall County, and alleged that a certain judgment of record in favor of the Commissioners of the Land Office of the State of Oklahoma appeared or purported to be a lien against his land, but that such judgment was ancient and obsolete and ineffective as a lien and should be cancelled as a cloud on his title.

The Commissioners contend that the money judgment in question is a continuing valid and subsisting lien.

Essential facts are that in 1928 the Commissioners upon a loan of money took a real estate mortgage from Elizabeth Hendrix on 190 acres of land in sections 28 and 33, township 6 South, Range 5 East in Marshall County, and in 1936 the Commissioners regularly obtained judgment against Elizabeth Hendrix in a stated sum of money, and for foreclosure of the real estate mortgage on the described 190 acres of land. The judgment was promptly and properly recorded, but there has been no foreclosure sale nor has any general or special execution issued on the judgment.

The same Elizabeth Hendrix in the beginning of 1942 and for some undisclosed period theretofore had owned the 20 acres of land involved in this action. That 20 acres was sold at tax resale to plaintiff in May, 1942, with valid resale deed executed and delivered and properly recorded.

The Commissioners contend that upon rendition of the aforesaid judgment in 1936 the same constituted a lien not only on the land described in the mortgage foreclosure, but also upon other real estate then or thereafter owned by Elizabeth Hendrix. 12 O.S.1941 § 706. And that since the judgment remains unpaid that the lien continues and is superior to the lien of the county for ad valorem taxes. 68 O.S.1941 § 394.

The plaintiff contends that the judgment lien of the Commissioners which attached in 1936 had expired before plaintiff acquired his title in 1942.

The first section of statute above referred to makes the provision contended for by the Commissioners, that is, that the money judgment from and after its entry on the judgment docket shall constitute a lien on all the real estate of the judgment debtor in the county. However, in the same title and in section 735 it is provided in material substance as follows: 'If execution shall not be sued out within five years after the date of any judgment that now is or may hereafter be rendered, in any court of record in this State or if five years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor. * * *'

Thus we observe that while the statute created a lien as contended by the Commissioners, the statute expressly provided the duration of such lien and for the expiration thereof.

While the Commissioners contend that a money judgment in their favor does not become dormant, that is, that the dormancy statute does not apply to such judgments, the law is to the contrary. State ex rel Com'rs of Land Office v Weems, Okl.Sup., 168 P.2d 629. See also Thompson v. Avery, 11 Utah 214, 39 P. 829; United States v. Harpootlian, 2 Cir., 24 F.2d 646; Custer v. McCutcheon, 283 U.S. 514, 51 S.Ct. 530, 75 L.Ed. 1239; Lion Oil & Ref. Co. v. Rex Oil Co., 195 Ark. 1021, 115 S.W.2d 556; Smith v. Toman, 368 Ill. 414, 14 N.E.2d 478, 118 A.L.R. 924; and Payette v. Marshall County, 180 Iowa 660, 163 N.W. 592.

Upon the authority of these statutes and decisions we conclude that while the statutes created the lien in favor of the Commissioners, provision was also made limiting the existence of such lien, and that such statute is binding upon the Commissioners and applicable to a judgment lien in their favor or behalf.

The Commissioners also contend that this is in effect a suit against the state, which cannot be maintained for lack of consent on the part of the state.

Since the lien of the Commissioners on the 20 acres of land here involved had fully expired plaintiff would be entitled to have the record cleared of any purported lien of such judgment. It might be assumed that the Commissioners were without authority to make any voluntary release of anything, 64 O.S.1941 § 52, subdivision (j), but it would seem plaintiff would be entitled to have some judicial forum where such right could be obtained. Section 6, Art. 2, Oklahoma Constitution.

64 O.S.1941 § 160 provides in material substance as follows 'The Commissioners of the Land Office are hereby authorized and...