Turk v. Page
| Decision Date | 30 April 1918 |
| Docket Number | 8206. |
| Citation | 174 P. 1081,68 Okla. 275,1918 OK 250 |
| Parties | TURK v. PAGE et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied July 23, 1918.
Syllabus by the Court.
Where a decree is reversed and cause remanded with directions to the trial court to grant a new trial, it stands the same, except as to questions of law settled by the proceedings in error as if no trial had been had. The parties may, if the case warrants, amend their pleadings under proper restrictions in such way as to conform to the views of the appellate court in respect to the allegations of fact necessary to entitle them to the relief sought.
A motion to strike a pleading admits the truth of all facts well pleaded for the purposes of the motion, except where the motion is to strike the pleadings as a sham.
Considered as a permissible pleading, it is error to strike from an answer eight separate paragraphs thereof, where one or more of such paragraphs of the defenses interposed is sufficient.
A mortgagee, who purchases the mortgaged premises at a void foreclosure sale and enters into the possession thereof in good faith believing he had acquired the title thereto by virtue of his purchase and the sheriff's deed made in pursuance thereof and of the subsequent judicial proceedings had in connection therewith, may avail himself of the statute of limitations as a defense in a proceeding to redeem by the grantee of the mortgagor, where his possession has been actual, open, notorious, hostile to the title claimed by the mortgagor or his successor in interest and to the world at large, and continuous for such length of time as may be required to bar the action to redeem.
Where a mortgagee enters into possession of the mortgaged premises under claim of title in himself, and hence not in subordination of the mortgagor's title, and notice of such possession and adverse claim is brought home to the mortgagor or his successor in interest, the statute of limitations against an action to redeem is set in motion.
Error from District Court, Cleveland County; F. B. Swank, Judge.
Suit to quiet title by Herman Turk against Albert S. Page and others. Decree for defendants, and plaintiff brings error. Reversed and remanded, with instructions.
See also, 167 P. 462.
W. L Eagleton, of Norman, Solon W. Turk, of Purcell, and Ames, Chambers, Lowe & Richardson, of Oklahoma City, for plaintiff in error.
George J. Eacock and J. S. Jenkins, both of Oklahoma City, Ben F. Williams, of Norman, and W. J. Davidson, of Oklahoma City, for defendants in error.
In order to intelligently present the issues made in the trial court, and to determine certain of the material questions urged in this court, it will be necessary to give a somewhat complete summary of the pleadings filed by the respective parties throughout the history of the present suit.
In the original petition filed February 18, 1909, in which Morgan Sharp, Mary Sharp, and Albert S. Page were named as defendants, plaintiff claimed to be the owner of the land in question by virtue of a sheriff's deed made and delivered to him by the sheriff of Cleveland county on May 13, 1897. He charged that Page claimed adverse title to the premises by virtue of a deed made to him by the defendants, Morgan and Mary Sharp, at some time subsequent to the giving of plaintiff's mortgage (meaning the mortgage attempted to be foreclosed, and pursuant to which plaintiff claimed title under sheriff's deed), and charged that if such deed had in fact been executed, it had never been placed of record, and that Page was without right in the premises. The petition further charged that Morgan and Mary Sharp acquired title to the land by virtue of a patent thereto from the United States, and that the same was subject to the mortgage given plaintiff thereon and through the foreclosure of which he acquired title; that the claim of the Sharps was without right or equity, and, together with the claim of defendant Page, constituted a cloud upon his title, which he asked to have quieted, and the defendants barred from setting up or asserting any title or interest in the premises adverse to plaintiff, and for such other relief as should appear equitable and proper.
April 5, 1909, the defendant Albert S. Page and Lettie Page (the latter having been made a party defendant on application of defendant Albert S. Page) filed their answer and cross-petition, in which, among other things, after denying generally the allegations of the petition, they claimed title to the lands in controversy by deed executed by Morgan and Mary Sharp to Albert S. Page under date of August 2, 1895, immediately after the execution of which they entered into possession and occupied the same as a homestead until dispossessed thereof by fraud and deceit practiced on them by the plaintiff; that they had never abandoned the lands, but claimed the same as their homestead. They asked that plaintiff take nothing by his suit, and that they be decreed to be the owners of the land and entitled to the possession thereof. For their cross-petition they charged that patent to the lands had issued to Morgan Sharp February 13, 1896, said Sharp having been a settler upon the land under the homestead laws, and had made proof thereof and received his certificate from the proper constituted authorities of the United States of America; that, after procuring such certificate, and on the 2d day of August, 1895, Morgan Sharp joined by his wife, Mary Sharp, executed and delivered to the defendant Albert S. Page, a deed of conveyance to said lands, and immediately upon the execution of which the defendants went into possession of the lands and continued to occupy the same as a homestead of the family until on or about the 2d day of January, 1897, when the plaintiff wrongfully, unlawfully, fraudulently, and forcibly dispossessed them and took possession of the lands for himself; that the plaintiff refused to return the possession of the premises to the defendants, and had wrongfully and forcibly withheld possession thereof from them; that the reasonable rental value of the lands for agricultural purposes was $300 per annum, or a total of $3,600, which amount plaintiff had refused to pay. They asked judgment against the plaintiff for restitution and possession of the premises; that their title be quieted; and they have judgment for their damages in the sum of $3,600, for legal interest thereon and for costs.
October 5th thereafter plaintiff replied, denying generally the material allegations of the answer, admitted the execution of the deed from Morgan Sharp to Page, but charged that the same conveyed only the equity of redemption of Sharp and wife and was given subject to the mortgage of plaintiff, which was subsequently foreclosed and the equity of redemption barred and that plaintiff was the owner of the title by virtue of a sheriff's deed made pursuant to the foreclosure proceedings. Plaintiff denied the fraud or deceit charged by defendants, and asked judgment as prayed for in his petition. In his answer to the cross-petition, in addition to a general denial, plaintiff admitted the ownership of Morgan Sharp to the premises and the conveyance to Page; charged the making to him of a prior mortgage by Sharp and wife, and that the deed to Page conveyed only the grantor's equity of redemption, and was made subject to plaintiff's mortgage as expressed in the deed. That foreclosure suit was instituted March 9, 1896, and the mortgage subsequently foreclosed, the premises sold by the sheriff, return made, sale confirmed, and deed executed by the sheriff to plaintiff under order of court, and through which plaintiff claimed title, and that, as the successor in interest of the equity of redemption, any claim of the defendants therein was barred and foreclosed. Plaintiff further charged that the defendants had voluntarily abandoned the premises, and denied any knowledge of the circumstances under which they were ejected, as charged in defendants' cross-petition. Plaintiff further claimed that he had been in the uninterrupted and peaceable possession of the premises for more than 12 years under the sheriff's deed, and that the defendants had never at any time asserted any interest in the property until after they had learned that the records of the foreclosure proceedings had been burned, and that plaintiff was trying to supply same by quieting his title, when they attempted to assert their right to the property by "false and fraudulent statements." Plaintiff asked that defendants take nothing, and that he have the relief prayed in his petition. On the same day defendants Page and wife filed their answer to the reply and cross-petition of the plaintiff, in which they denied that prior to the execution of the deed from Morgan Sharp and wife to Albert S. Page the grantors therein executed to plaintiff their mortgage to the land, and that there was a valid mortgage thereon at the time Sharp and wife conveyed the land to Page; that if there was such mortgage the same was void, and executed contrary to law and in violation of the statutes of the United States, and that if foreclosure proceedings were ever brought, which was not admitted, but denied, they-the Pages or either of them-had no notice thereof nor were they advised that "judgment was being sought to foreclose a mortgage on the lands," and denied that foreclosure was consummated and the lands sold and a deed made pursuant thereto to any one; but, they said that, if such was done, it in no manner affected their rights because of their want of knowledge of the pendency of such suit and in which they had not been summoned according to law, and that the court entering such judgement was, for the reasons stated, without jurisdiction. The defendants...
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