De Watteville v. Sims

• Citation: 146 P. 224,1914 OK 610,44 Okla. 708
• Decision Date: 08 December 1914
• Docket Number: Case Number: 3005
• Parties: DE WATTEVILLE et al. v. SIMS.
• Court: Supreme Court of Oklahoma

1914 OK 610

146 P. 224

44 Okla. 708

DE WATTEVILLE et al. v. SIMS.

Case Number: 3005

Supreme Court of Oklahoma

Decided: December 8, 1914

Syllabus

¶0 1. MORTGAGES--Foreclosure--Parties. In the absence of exceptional facts, which the plaintiff should allege, the only proper parties defendant in a suit to foreclose a mortgage are the mortgagor and those who have an inferior interest in the mortgaged property acquired from him subsequent to the execution of the mortgage.

2. SAME--Petition-- Construction. A petition which alleges that certain defendants in a suit to foreclose a mortgage are parties who have acquired by various conveyances, and who are asserting ownership of some subsequent, subjective, and inferior interest in the mortgaged property, the exact nature of which is to the plaintiff unknown, without demanding a disclosure of such interest or stating any other ground for including such defendants in the action, will be construed, as against the petitioner, as alleging that such interest is a species of title extending to all the property and derived from the mortgagor since the execution of the mortgage.

3. SAME--General Denial-- Construction. An unqualified denial by defendants, who are strangers to a mortgage in a suit for foreclosure, will ordinarily, in the absence of any other ground of defense, be construed as a disclaimer, and warrant judgment accordingly against them.

4. SAME--Answer--Construction--Disclaimer. An answer, to be construed as a disclaimer of interest in mortgaged property in a suit for foreclosure, must express an unequivocal intent to disclaim; and a general denial of each and every material allegation of the petition not specifically admitted in the answer of defendant strangers to the mortgage, followed by the pleas of res judicata, which require the aid of the petition to show a defensible interest in the property and to make such pleas sufficient in this respect, will not be construed as a disclaimer, where the petition does not demand of such defendants a disclosure of their interest in the property, but alleges that they have a subsequently acquired and inferior interest therein derived from the mortgagor.

5. JUDGMENT-- Conclusiveness--Codefendants--Issues. As a general rule, a judgment settles nothing between coplaintiffs or codefendants unless their conflicting or hostile claims were brought into issue, as by cross-petition or separate and adverse answers or otherwise, and were thereupon actually litigated and adjudicated.

6. SAME--Res Judicata--Foreclosure. A judgment foreclosing a materialman's lien against a number of defendants, including a holder of a mortgage lien, who does not set up his mortgage in that action, will not preclude the latter from foreclosing his mortgage, as against his codefendants in the first foreclosure, who acquired no interest in the property under or by reason of such first foreclosure, and whose conflicting or hostile claims against said mortgage were not in issue nor litigated in the first foreclosure, and it was not error to reject the offer of such judgment by such former codefendants as res judicata in this subsequent action by the mortgagee to foreclose his mortgage against them.

7. SAME-- Parties. A person who would not have been bound by a judgment against the party in whose favor it was rendered cannot, as a general rule, avail himself of such judgment as res judicata, as such judgment is ordinarily wanting in the requisite mutuality of effect upon the person pleading and the person against whom it is pleaded.

8. SAME--Purchaser. A person purchasing land is ordinarily not bound by a judgment against his grantor in an action commenced subsequent to his purchase, and to which he was not a party, and ordinarily cannot avail himself of such subsequent judgment in favor of his grantor as res judicata, because the same is wanting in mutuality.

9. BANKRUPTCY--Res Judicata--Disallowance of Claim--Usury. A judgment disallowing a claim in bankruptcy as void because of usury ordinarily determines an issue purely personal to the parties thereto, and, the determination of such personal issue being binding upon everybody to the extent of its purely personal character, a prior purchaser of land from the claimee may, in a subsequent action, by the claimant upon said claim and to foreclose a securing mortgage antedating such purchase upon said land, plead such judgment disallowing such claim as having the requisite mutuality to constitute res judicata.

10. JUDGMENT--Res Judicata--Purchaser-- Usury. Ordinarily, privies in estate with a mortgagor by subsequent purchase of the mortgaged property may, in protection of their interests therein, make any impersonal defense the mortgagor might have made if he had continued the owner; and the defense of res judicata as to the validity of the mortgage debt in respect to usury is not personal to the mortgagor, and his privies under such judgment, but is available to his privies in the estate by purchase prior' to such judgment.

11. SAME--Plea. As a general rule, until entered, a judgment will not support a plea of res judicata.

12. SAME--"Entry of Judgment." An entry of judgment ordinarily consists of the ministerial act of recording the same in the proper book of judgment.

13. SAME--What Constitutes--Plea of Res Judicata. A mere memorandum opinion of a judge which does not purport to be, and has not been entered as, a judgment, is not a "judgment" pleadable in res judicata. ON REHEARING.

14. BANKRUPTCY--Adjudication by Referee-- Petition for Review--Supersedeas. A petition to a judge of a District Court of the United States for a review of a finding and adjudication, by a referee of such court, of a claim in bankruptcy, does not ipso facto operate as a supersedeas of such adjudication.

15. SAME--Claims--Plea of Res Judicata. It is not necessary that a referee's adjudication of a claim in bankruptcy, shown by his certificate on file in the case, should be formally entered in a book of judgments to be admissible as res judicata.

16.PLEADING--Objection--Admission of Evidence. An objection to the admission of evidence which questions the sufficiency of a pleading not otherwise attacked to state a cause of action or a ground of defense is not favored, and (although the pleading may be incomplete, indefinite, or state a mere conclusion of law in some particular) such objection should ordinarily be overruled unless' such pleading, aided as it may be by the pleadings of the opposite party, totally fails to allege some essential fact.

E. G. Wilson and Samuel Feller (F. W. Casner, of counsel), for plaintiffs in error.

W. W. Wood and Gibson & Thurman, for defendant in error.

THACKER, C.

¶1 Plaintiffs in error will be designated as defendants (except when Charles and Mary De Watteville, against whom judgment was taken by default, may be designated as mortgagors, or the other plaintiffs in error, who were not parties to the note or mortgage, may be designated as resisting defendants), and the defendant in error will be designated as plaintiff, in accord with their respective titles in the trial court. The essential facts, when not stated, are necessarily presupposed by this opinion, and will therefore be understood. In the absence of exceptional facts--such as the invalidity or loss of the superior position of a senior lien, a cause and purpose to adjudicate the rank of senior claims or to liquidate them from the proceeds of the foreclosure sale, or a cause and purpose to litigate adverse and paramount title, as in an action to quiet title under section 4491, St. 1893 (section 4927, Rev. Laws 1910), or of ejectment under section 4492, St. Okla. 1893 (section 4928, Rev. Laws 1910), in respect to which see Bradley v. Parkhurst, 20 Kan. 462; Nooner v. Short, 20 Kan. 624; Fisher v. Cowles, 41 Kan. 418, 21 P. 228; Provident Loan & Trust Co. v. Marks, 59 Kan. 230, 52 P. 449, 68 Am. St. Rep. 349--which the plaintiff should allege, the only proper parties defendant in a suit to foreclose a mortgage are the mortgagor and those who have an inferior interest in the mortgaged property, as when acquired from him subsequently to the mortgage (2 Jones on Mortgages [6th Ed.] 1440; 1 Wiltsie on Mortgage Foreclosure, sec. 482; 27 Cyc. 1576-1578; and 68 Am. St. Rep. 349, editorial note to Provident Loan & Trust Co. v. Marks, supra); and the petition in the present case (which alleges that said resisting defendants are parties who have acquired by various conveyances, and who are asserting ownership of some subsequent, subjective, and inferior interest in the mortgaged property, "the exact nature of which is to the plaintiff unknown," without demanding a disclosure of such interests) will be construed, as against the plaintiff, who was under the burden of showing the grounds upon which he might properly make these resisting defendants parties, as alleging that such interest is a species of title extending to all the property and derived from the mortgagor since the execution of the mortgage. Although an unqualified general denial by parties defendant who are strangers to the mortgage would, standing alone, be construed as a disclaimer and warrant judgment against them accordingly ( Blandin v. Wade, 20 Kan. [2d Ed.] 251), inconsistent defenses not expressly prohibited by statute are permissible in our practice ( Covington v. Fisher, 22 Okla. 207, 97 P. 615), and the denial of these resisting defendants of "each and every material allegation of said petition not herein specifically admitted," followed by two distinct pleas of res judicata (although these pleas are only sufficient by the aid of plaintiff's petition to show that these defendants have such interest in the property as entitles them to make such defense, notwithstanding in such pleas it is alleged that plaintiff's mortgage is a cloud upon their title and cancellation is prayed), excludes the idea that these defendants intended to disclaim interest by their denial. And an answer,...