Tolbert v. State Bank of Paden
| Decision Date | 18 November 1911 |
| Citation | 121 P. 212,30 Okla. 403,1911 OK 482 |
| Parties | TOLBERT et al. v. STATE BANK OF PADEN. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
In a foreclosure suit on a note and mortgage, wherein appear the words "appraisement waived," it is error to order the sale of the property before the expiration of six months from the date of the judgment.
The fact that property, to be sold under execution based on judgment of foreclosure, was appraised, does not render valid a sale made of such property, before the expiration of six months from the date of judgment, where appraisement was waived in the note and mortgage upon which the judgment was based.
An affidavit for service by publication, which alleges the defendant to be a nonresident of this state, and that due diligence has been used, and summons cannot be served on defendant in this state, together with other allegations required by law, is sufficient, without stating specifically the facts as regards the diligence used. But in such case where it is shown by defendant in a motion to quash service and is not contradicted, that the plaintiff when the affidavit was made, and publication had, knew that defendant was not a nonresident of this state, and that she actually resided in Oklahoma county in this state, that although the affidavit was sufficient in form, yet it was, on such showing of uncontroverted facts, voidable, and ought to have been quashed.
An attorney in a case may make the affidavit required for service by publication, although not specifically authorized to do so in the statute authorizing such affidavit. And to make same he does not have to bring himself within the limitations of section 5613, Comp. L. Oklahoma 1909 (Stat 1893, § 3951).
Commissioners' Opinion, Division No. 2. Error from District Court, Okfuskee County; John Caruthers, Judge.
Action by the State Bank of Paden against Lucy Tolbert and others. Judgment for plaintiff, and defendants bring error. Reversed.
Geo. B Denison, for plaintiffs in error.
J. B Patterson and C. T. Huddleston, for defendant in error.
This suit was brought by the State Bank of Paden, defendant in error, plaintiff below, against Lucy Tolbert et al., plaintiff in error, defendant below, in the district court of Okfuskee county on January 22, 1909. It was brought for judgment on a promissory note and to foreclose a certain real estate mortgage on town lots therein described. Personal service of summons was had on John L. Bruce, a junior mortgagee, and service by publication was had as to the defendant Lucy Tolbert. The defendant Bruce does not complain of the judgment rendered in the court below and will not be given further consideration herein. There was judgment in the court below against the defendant Lucy Tolbert for the amount sued for. A lien was impressed upon the lots in controversy, and they were ordered sold. After execution had been issued on the judgment and the sale had been had, the defendant learned of the proceedings and appeared in court specially, and filed various pleadings, among them being one to quash and set aside the service by publication for various grounds therein stated. This being overruled, and the sheriff having filed return of the execution and sale of the property, she then filed objections to the confirmation of the sale, alleging that the judgment was void, and giving a number of reasons why the sale should not be confirmed. Her objections to the confirmation of the sale were overruled by the court, and on the 26th day of October, 1909, the sale was in all things confirmed and approved by the court, and the sheriff was ordered and directed to execute to the purchaser at such sale deed to the property. The defendant filed motion for rehearing on the motions confirming sale, alleging various errors of law. This was overruled, exceptions saved, and the case brought here for review.
There are, as has been suggested, a number of questions raised in this case, some of which will not be necessary to consider in view of the conclusions we have reached. In the grounds set up by the defendant as a reason why the sale should not be confirmed are the following: "That it appears by the said petition that there was a contract in this case by which the said defendant had waived appraisement, and therefore the decree should have provided that no order of sale should issue until after six months from the rendition of such decree."
The note sued on in this case contains the following provisions: "And the several makers, sureties, and indorsers hereto hereby waive appraisement," etc. The mortgage executed simultaneously with the note and as security therefor contained the following provisions: "All rights of homestead, appraisement and redemption provided by the laws of Indian Territory are hereby waived by the mortgagor."
Section 5978, Snyder's Comp. Laws of Okla. 1909, provides as follows:
The judgment of the district court ordering foreclosure and sale of defendant's property contains the following clause: "It is therefore considered, ordered, adjudged, and decreed by the court that the plaintiff's debt above mentioned be, and the same is hereby, decreed to be a lien on the real estate herein mentioned; that the equity of redemption of the defendant Lucy Tolbert in and to said property be, and the same is hereby, forever barred and foreclosed; and that, if said debt be not paid within 60 days from the date hereof, said real estate be, and the same is hereby, ordered to be sold by the sheriff of Okfuskee county, Oklahoma," etc. This judgment was rendered on May 28, 1909, and it appears that on July 17, 1909, execution was issued out of the clerk's office to the sheriff to sell the property on said judgment. It appears that on October 5th the sheriff filed return of sale of the property involved showing that he had had the same appraised, and also showing that it had sold for as much as two-thirds of its appraised value. On October 6, 1909, the objections of the defendant to the confirmation of the sale were argued to and taken under advisement by the court, and later, on October 26, 1909, the objections to the confirmation of the sale were overruled and denied. The sale was approved and confirmed and deed ordered to issue.
In this case these questions are squarely presented: Can a mortgage creditor sell property under a mortgage, where the right of appraisement has been waived by the debtor, before the expiration of six months after judgment of foreclosure, by having the property appraised? And, is a judgment of the court, in such case ordering a sale within the six months period...
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