Vir v. Field

• Decision Date: 22 May 1945
• Docket Number: Case Number: 30063
• Citation: 1945 OK 173,159 P.2d 546,195 Okla. 555
• Court: Oklahoma Supreme Court
• Parties: VAN METER et vir v. FIELD

1945 OK 173

159 P.2d 546

195 Okla. 555

VAN METER et vir v. FIELD

Case Number: 30063

Supreme Court of Oklahoma

Decided: May 22, 1945

Syllabus

¶0 1. HOMESTEAD--Homestead rights inferior to mortgage executed before rights attached but both husband and wife necessary parties to foreclosure.

Homestead rights attaching subsequent to the execution of a valid mortgage on lands are junior and inferior to such mortgage. However, both husband and wife are necessary parties to a foreclosure thereof, and where the title to said lands is in the husband, and he alone is made a party in said foreclosure proceeding, said judgment is void as to both husband and wife.

2. SAME-In action to vacate void judgment foreclosing mortgage against homestead such judgment could not be made basis of cross-petition.

In an independent proceeding by a husband and wife to vacate a void judgment foreclosing a mortgage against their homestead, said void judgment cannot be made the basis of a cross-petition in said proceeding, nor is it proper evidence to establish the amount of the indebtedness in favor of said mortgagee, the original notes and mortgage being the best evidence.

Appeal from District Court, Pontotoc County; Tal Crawford, Judge.

Action by Susan I. Van Meter and husband against Samuel H. Field. Judgment for defendant, and plaintiffs appeal. Reversed, with directions.

C. F. Green, of Ada, for plaintiffs in error.

Busby, Harrell & Price and Thomas P. Holt, all of Ada, for defendant in error.

ARNOLD, J.

¶1 This is an action brought by Susan I. Van Meter and John C. Van Meter, wife and husband, plaintiffs in error (plaintiffs below) against Samuel H. Field, defendant in error (defendant below) to cancel and hold for naught a certain judgment.

¶2 For many years Emma Van Meter, mother of the plaintiff, John C. Van Meter, was the owner of the property involved herein and occupied same as her home. In 1922 the plaintiffs moved into the property and continued to live there with Emma Van Meter until her death in 1933. John C. Van Meter inherited an undivided one-half interest in the property. Later, in 1934, he obtained deeds from the other heirs. The plaintiffs continued to live in the property as their constitutional and statutory homestead.

¶3 In 1928 Emma Van Meter executed a note in the amount of $1,500 and secured the same by a mortgage on said property. Prior to the date of maturity, February 1, 1933, the defendant, Samuel H. Field, became the owner of said note and mortgage. The note was not paid at maturity and thereafter no part of the principal or interest was paid. On January 31, 1938, Field filed an action to foreclose said mortgage in the district court of Pontotoc county, same being case No. 15460. Although the plaintiffs we're in possession of said property and occupying it as their homestead, Susan I. Van Meter, wife of John C. Van Meter, was not made a party defendant therein. Thereafter, on April 20, 1939, after trial, a judgment was entered foreclosing said mortgage; appraisement having been waived in the mortgage, it was ordered that unless the said John C. Van Meter pay the amount found due together with the costs within six months, the property be sold to satisfy same. No appeal was taken and the judgment became final.

¶4 On May 18, 1939, Susan I. Van Meter and John C. Van Meter filed this action. They alleged that they were husband and wife and the legal and equitable owners and in actual possession of the property; that the defendant, Samuel H. Field, had no right, title, or interest in said property adverse to the right and title of the plaintiffs, and that the title thereto should be quieted in them; that title is vested in John C. Van Meter; that the plaintiffs have occupied same as their constitutional and statutory homestead for many years and have owned no other property; that the defendant claims some interest therein by reason of the judgment rendered in case No. 15460, above referred to, fixing a lien on the property, but that said judgment is void and of no effect in that the plaintiff Susan I. Van Meter was not a party to said case No. 15460, and same should be canceled and held for naught insofar as it affects titles to said property; it being the constitutional homestead of the plaintiffs. They then prayed that the title be quieted in them; that the defendant be barred and enjoined from asserting any right, title, or interest adverse to the right, title, and interest of the plaintiffs; that the judgment in case No. 15460 be canceled, vacated, set aside and held for naught.

¶5 The defendant filed an answer and cross-petition in which he denied generally the allegations of the petition and then alleged that his claim of right, title, and interest in the property arises by virtue of the mortgage executed by Emma Van Meter, hereinbefore referred to, which he now owns; that he obtained the judgment in case No. 15460, above described, which is final and conclusive as to any right, claim, title, or interest of the plaintiff John C. Van Meter, and that said plaintiff is estopped thereby; that if the plaintiffs acquired title to the property and established their homestead thereon, any such homestead right so created was inferior, subsequent, and subject to the prior and superior claim and lien of him by virtue of said mortgage; that any claim of the plaintiffs, or either of them, is limited to the right to redeem by payment of the amount adjudged to be due upon said note and mortgage, and that they are not entitled to have the mortgage canceled or the judgment vacated; that under the maxim of equity "He who seeks equity must do equity" the said plaintiffs should be required to tender the full amount of the mortgage indebtedness together with interest, costs, and attorneys' fees in the amount determined in case No. 15460 as a condition precedent to the relief prayed for; that he is entitled to a decree determining that his right, title, lien claim, and interest by virtue of said mortgage and the proceedings in case No. 15460 is prior and superior to any claim of the plaintiffs; that in the event either plaintiff is determined to have a right of redemption a reasonable time should be granted in which to redeem, and if they fail to do so, then both should be barred and estopped from asserting any claim in and to said property and the defendant authorized to proceed with the enforcement of the judgment as against the defendants in that action. He then prayed that the plaintiffs take nothing; that his right, title, and interest by virtue of said mortgage and judgment be declared to be prior and superior to any right or claim of the plaintiffs and each of them, and that plaintiffs be required to pay the amount of said judgment within 30 days and upon their failure to do so be forever barred.

¶6 The plaintiffs in their reply and answer alleged that Susan 1. Van Meter was not a party to said case No. 15460 and that her homestead rights in the property were not affected by the judgment rendered therein; that the mortgage is not a defense to the instant case because barred by the five-year statute of limitations; that said note and mortgage should be canceled and the property relieved therefrom; that the plaintiffs should not be required to tender the amount of the indebtedness because the note and mortgage show on their face that the five-year statute of limitations has run; that the court was without power to render the judgment in said case No. 15460 for the reason that the property was the constitutional homestead of the plaintiffs, and the wife, Susan I. Van Meter, though a necessary party, was not named a defendant therein; that homestead rights cannot be litigated without the presence of both husband and wife; that the court was therefore without power to render the judgment. They then concluded their reply with a prayer, in effect, for the same relief asked for in their petition.

¶7 In the findings of fact and conclusions of law, the trial court found that the note was executed by Emma Van Meter on February 14, 1923, and...