Storm v. Garnett

• Decision Date: 10 June 1924
• Docket Number: Case Number: 13594
• Citation: 99 Okla. 284,227 P. 417,1924 OK 620
• Parties: STORM, Adm'r, et al. v. GARNETT et al.
• Court: Oklahoma Supreme Court

1924 OK 620

227 P. 417

99 Okla. 284

STORM, Adm'r, et al. v. GARNETT et al.

Case Number: 13594

Supreme Court of Oklahoma

Decided: June 10, 1924

Error from District Court, Oklahoma County; C. C. Smith, Assigned Judge.

Action by Mattie R. McHan against Chas. H. Garnett, Arthur C. Hobble and E. L. Garnett, to cancel and set aside certain judgments as a cloud upon the title to certain real property owned by the plaintiff. During the course of the litigation plaintiff died and the cause was revived in the name of Geo. E. Storm, administrator; and M. T. Swisher, Geo. E. Swisher, and G. A. Paul were made parties. Judgment for Chas. H. Garnett, Arthur C. Hobble, and E. L. Garnett against Geo. E. Storm, administrator, M. T. Swisher Geo. E. Swisher, and G. A. Paul. Geo. E. Storm, administrator, M. T. Swisher, Geo. E. Swisher, and C. A. Paul prosecute appeal. Affirmed.

The facts out of which this case grew are, roughly, as follows: A certain tract of land near what is now the fair grounds in Oklahoma City was owned by John and Katie Fiedler as tenants in common; and on April 2, 1906, they executed a mortgage to Williams and Hogan on the land described in it. in the sum of $ 730, the land consisting of 20 acres subject to right of way of Rock Island and Katy railroads amounting to about three acres. These parties were the parents of four minor children, and soon after the said mortgage was executed Katie Fiedler died, leaving her husband and minor children as her sole heirs. The minor children took from their mother two-thirds of the mother's one-half or what would amount to an undivided one-third of the tract, but all of it was subject to the Williams and Hogan mortgage. Sometime after the death of Katie Fiedler, John Fiedler and the plaintiff were married and went to live on the 20 acre tract of land which is referred to by the parties in this lawsuit as the fair grounds property. Soon after John Fiedler and plaintiff were married they deeded one acre in the northeast corner of the tract to Geo. E. Storm. In 1908 Chas. H. Garnett loaned John Fiedler and his wife (the plaintiff here) a sum of money and took a mortgage from them to secure the loan. This loan was never paid and the debt was converted into a judgment on about June 1, 1910. This judgment is identified as the judgment taken in case No. 717 in the superior court, and has never been satisfied, but it seems that it has not been permitted to become dormant. This judgment is also referred to as the judgment in the case of Garnett v. Storm, and it was assigned by Chas. H. Garnett to Fred S. Caldwell and by him assigned to E. L. Garnett, one of the parties here. The judgment amounts to $ 545.55.

In June, 1909, a foreclosure suit was flied on the Williams and Hogan mortgage, and later in the year Mrs. Fiedler, who appears here as Mrs. McHan, bought this mortgage and had it assigned to her, and the foreclosure suit seems to have been dismissed. In March, 1911, Mrs. Fiedler commenced a divorce suit against John Fiedler and was granted a divorce, and awarded the interest held by him in the portion of the land lying south of the railroad tracks, said to be about five acres, unimproved and subject to overflow. Prior to the divorce suit Fiedler seems to have deeded about five acres of the tract in the northwest corner with the improvements to his wife. No mention was made of this deed in the divorce case, and afterwards the court modified the decree by making an order cancelling this deed, and his wife, appearing here as Mrs. McHan, appealed the cause and it was reversed and finally disposed of in the trial court by Mrs. Fiedler being divorced and restored to her former name of Mrs. Storm. In 1911 the former Mrs. Fiedler, as Mrs. Storm, went to Chas. H. Garnett, one of the parties here, and wanted to make a contract with him to clear up her title to a portion of the fair grounds tract of land, and to relieve herself of the burden of foreclosing the Williams and Hogan mortgage, of which she had become the owner by purchase. A contract was prepared between herself and Chas H. Garnett, which Mrs. Storm seems to have submitted to Everest & Campbell, attorneys of Oklahoma City, and upon their approval of the contract it was signed by the parties, Mrs. Storm and Chas. H. Garnett. The contract is as follows:

"This agreement made and entered into this 5th day of July, 1911, between Chas. H. Garnett, first party, and Mattie R. Storm, formerly Mattie R. Fielder, second party, witnesseth:

"That for and in consideration of the assignment to Arthur C. Hobble by the second party of a mortgage dated the 2nd day of April, 1906, and note secured thereby, both executed by John Fiedler and Katy Fiedler, husband and wife, for the sum of $ 730.00 and of the present value of $ 998,85, and now owned by the second party, and for the consideration of a quitclaim deed conveying to Robert E. Garnett all of the interest of the second party in and to the east half of the northeast quarter of the southeast quarter of section thirty-five (35) in township twelve (12) north, range three (3) west of the Indian Meridian, in the county and State of Oklahoma, the first party hereby covenants and agrees with the second party that he will cause the said mortgage above described to be foreclosed and the property covered thereby to be sold as soon as same can be done, and as soon as the sale of the said property is made, he will, by title to be acquired at said sale, convey or cause to be conveyed to the second party by good and sufficient deed of conveyance, free and clear of all liens, charges and encumbrances of every kind and character, the following described real estate situated in Oklahoma county in the state of Oklahoma, to wit:

"Beginning at a point 20 rods west of the northwest corner of the southeast quarter of section 35 in township 12 north range 3 west of the Indian Meridian running thence south to the railroad; thence west 20 rods to the east line of Mrs. Page's property, north along the east line of Mrs. Page's property to the north line of said quarter section; thence east along the north line of said quarter section to the place of beginning; containing five (5) acres, more or less.

"And the first party also agrees to convey and quitclaim to George E. Storm, at same time the conveyance above provided for is made to the second party, all the interest which he shall acquire and shall then have in and to the following described real estate, to wit:

"A tract of about one acre in the northeast corner of the southeast quarter of section 35 above described herein according to the description of the said tract in the deed conveying the same to the said George E. Storm by John Fiedler and Mattie R. Fiedler.

"And the first party further agrees to pay the second party $ 100.00 cash in hand upon the execution of this contract, the receipt of which is hereby acknowledged by the second party, and to give his two notes of this date payable to the second party, one for $ 200 due January 1st, 1912, and the other for $ 198.85 due April 1st 1912, and both with interest at the rate of 10% per annum.

"The second party agrees that the agreements of the first party above set forth herein, the payment of the said sum of $ 100 to her and the execution and delivery of the said notes of the first party are the full consideration to her for the sale and assignment by her of the said note and mortgage to the said Arthur C. Hobble, and for the execution and delivery by her of the said deed to the said Robert E. Garnett.

"In witness whereof we have hereunder set our hands to this assignment in duplicate the date above given."

Mrs. Storm performed her part of the contract by making assignment of the Williams and Hogan mortgage to Arthur C. Hobble and by making a quitclaim deed to the property described in the contract to Robert F. Garnett conveying to him all right, title and interest she held in the fair grounds property. It seems that Chas. H. Garnett paid the $ 100 required to be paid by him, executed his notes as provided in the contract and afterwards paid the $ 200 note. It seems that in addition to the cash paid to Mrs. Storm by Garnett, the benefit she was to derive by the contract was five acres, more or less, of the fair grounds tract of land free and clear of all incumbrances; and Geo. E. Storm, her son, was to have his acre of land. For the purpose of guaranteeing performance of the executory part of the contract on the part of Chas. H. Garacres, more or less, of the fair ground tract on a tract of land comprising 26 acres which the parties refer to as the Delmar Garden property, fixing the amount of her security for the performance of the contract at $ 10,000. This tract of land was located near Packingtown in Oklahoma City. After the contract made between Chas. H. Garnett and Mrs. Storm (Mrs.) McHan) Mr. Garnett commenced proceedings to foreclose the Williams and Hogan mortgages. Mrs. Storm herself had guaranteed payment of the mortgage and was made a party defendant, and filed an answer admitting her liability on her assignment. John Fiedler himself appeared and made defense against the mortgage, that he had paid a large part of the mortgage debt while the mortgage was owned by Mrs. Storm. The matter was long delayed because of conditions arising over which, it seems, Chas. H. Garnett had no control; and Mrs. Storm grew impatient about the matter, and in June, 1913, sent a registered letter discharging Chas. H. Garnett as her attorney; but afterwards agreed that he should represent her in certain pending litigation which included the case of Hobble v. Storm, which was the foreclosure case. The case finally, on November 1, 1916; resulted in the foreclosure of the mortgage and a personal judgment against Mrs. Storm on her indorsement of the note, in the sum of $ 1,479.13. The sale of the property was had under the foreclosure judgment, and at the sale the property was bid off at $ 100, the sale confirmed, the...