Webb v. Semans
| Decision Date | 17 February 1925 |
| Docket Number | 10235. |
| Citation | 235 P. 1074,110 Okla. 72,1925 OK 147 |
| Parties | WEBB et al. v. SEMANS. |
| Court | Oklahoma Supreme Court |
Rehearing Denied April 7, 1925.
Syllabus by the Court.
Where a mortgagee purchases land at a foreclosure sale and enters into possession thereof under a void judgment or a void sale he is simply a mortgagee in possession, and cannot be deprived of such possession by the mortgagor or his grantees prior to the satisfaction and payment of such mortgage.
Where a series of decisions of a court of last resort have been accepted and acted upon as the proper interpretation of the law for a long time, courts are slow to interfere with principles announced in the former decisions, and often uphold them, even though they would decide otherwise were the question a new one.
Where in a foreclosure proceeding, the mortgagee becomes the purchaser in the foreclosure sale, and enters into possession, and afterwards the decree of sale and order of sale and the sale are set aside as to one of the principal defendants, the mortgagee is entitled to retain possession pending the adjustment of equity between him and the defendant as to whom the sale was set aside.
Commissioners' Opinion, Division No. 1.
Appeal from District Court, Jackson County; Frank Mathews, Judge.
Suit by Ed. M. Semans against Eva Webb and another. From the judgment, defendants appeal. Affirmed.
This action was begun in the district court of Jackson county by the defendant in error, Ed. M. Semans, on the 19th day of October, 1915, by filing a petition in said court against Eva Webb, one of the plaintiffs in error, to quiet title, and other relief.
This case grows out of a former suit brought by E. C. Thorne against M. Boatman, W. F. Morrison, K. M. Boatman, and Jacob W. Webb on the 8th day of June, 1914, wherein E. C. Thorne sought to foreclose a mortgage executed to him by M. Willis who was the owner of the land consisting of 320 acres in Jackson county, Okl., prior to the bringing of said suit, but who had died since the execution of said mortgage, leaving a will bequeathing said lands to his five children. After his death, two of the children conveyed their interest to the other three who became sole owners of said land, and thereafter on the 23d day of January, 1912, said children of M. Willis conveyed said land to M. Boatman, who, as a part of the consideration for said conveyance, assumed the indebtedness of M. Willis to the plaintiff E. C. Thorne, and agreed to pay the same to the plaintiff E. C. Thorne. It appears that, about the time the foreclosure suit was brought, M. Boatman and K. M. Boatman, the then owners of said land, were negotiating a sale of same to Jacob W. Webb. Boatman, Jacob W. Webb, and W. F. Morrison were made parties defendant in said suit, and were all duly served with process, but none of them answered. Ed. M. Semans and Edward B. Lily were, after the bringing of said suit, made parties defendant, and on the 3d day of July, 1914, filed their answer and cross-petition. Semans and Lily made Eva Webb and Jacob W. Webb defendants to their cross-petition, and alleged, among other things, that on September 1, 1914, Eva Webb and Jacob W. Webb, for a valuable consideration, made executed, and delivered to said Ed. M. Semans and E. B. Lily their certain promissory note of that date whereby they promised to pay said Semans and Lily one day after date the sum of $1,628, with interest at the rate of 10 per cent. per annum from date, and that on September 1, 1914, as a part of said transaction and contract and for the purpose of securing the payment of above-described note, said defendant Eva Webb and Jacob W. Webb executed and delivered to said Semans and Lily a certain mortgage covering the 320 acres of land in controversy in this suit to secure the payment of said promissory note. Semans and Lily asked in their cross-petition that their mortgage be foreclosed, but admitted that their mortgage lien was junior to the mortgage lien of the plaintiff E. C. Thorne. No service was had on Eva Webb in this proceeding, and she did not enter her appearance either to the original suit or cross-petition of Semans and Lily. On the 2d day of October, 1914, the court entered a decree in said action and foreclosed the mortgage of E. C Thorne and also the mortgage of Semans and Lily, as prayed for in their cross-petition. It seems that the parties went upon the theory that Eva Webb simply signed said mortgage to Semans and Lily as the wife of Jacob W. Webb, but the deed from M. Boatman and K. M. Boatman to Webb was made to Jacob W. Webb and Eva Webb jointly, and that, instead of signing simply as a wife of Jacob W. Webb, she was the joint owner of the land with Jacob W. Webb. The land was sold by the sheriff under the foreclosure proceedings, but before the sale E. C. Thorne, the plaintiff, had assigned his judgment to Semans, and Semans became the purchaser of said land at the foreclosure sale. Objections were filed by Jacob W. Webb and Eva Webb to the confirmation of said sale on the ground that neither one of them were served with process on the cross-petition, and upon the hearing of said objections to the confirmation the court confirmed the sale as to all of the defendants except Eva Webb, who had not been served with process, and who had not entered her appearance. It seems that Jacob W. Webb had filed a pleading in the case of some kind, and the court held that he was in court by such pleading and refused to consider his objection to the confirmation. Thereafter the plaintiff Ed. M. Semans brought this suit wherein he set up the foreclosure proceedings in the case of Thorne against Boatman and others, and alleged that Eva Webb was claiming some title or interest in the property adverse to the plaintiff's claim, and that same constituted a cloud on plaintiff's title, and asked that it be held by the court that Eva Webb had no interest in said land, but that her interest was foreclosed by the foreclosure proceedings in the case of Thorne against Boatman and others, and asked that the deed from Boatman to Jacob W. Webb and Eva Webb be canceled and set aside as a cloud on his title. On the trial of the case the court impaneled a jury, and submitted certain interrogatories for the jury to answer as advisory to the court. These interrogatories were answered by the jury, and the court made its findings of fact and conclusions of law, and judgment was entered on said findings of fact and conclusions of law accordingly. The findings of fact made by the court are as follows:
"The court finds in favor of the plaintiff against Jacob W. Webb, but in favor of defendant Eva Webb; finds that said Eva Webb is the owner of an undivided one-half interest in the land in controversy, she having never been served with summons in the foreclosure suit styled, ' E. C. Thorne v. M. Boatman et al., No. 1224,' or made any appearance therein; but the said defendant Jacob W. Webb, having made an appearance therein, is precluded by the judgment and sale of his interest in said property. Therefore the plaintiff Ed. M. Semans, is the owner of an undivided one-half interest in said land, and the said Eva Webb is likewise owner of the other one-half undivided interest.
The court further finds that defendant Eva Webb is due plaintiff upon note the sum of $1,628, with interest at 10 per cent. per annum from September 1, 1914. Eva Webb is entitled to a reduction on said note in the sum of $300, the amount paid on the note, and $96.43, the amount reserved for taxes on Seminole county land not paid out; total, $396.43. Balance due, $1,221.57; interest to date, $549.67; total, $1.771.24.
The plaintiff Ed. M. Semans has paid out in cash on said land the following sums, and Eva Webb is liable for one-half of same:
| For assignment of Boatman judgment ................................... | $ 337 95 |
| With interest thereon at 10 per cent, per annum from May 10, 1915, | |
| to date, in the sum of ................................................ | 97 40 |
| --------- | |
| Total ............................................................. | $ 453 35 |
| Paid taxes and interest on $3,000 note in the sum of ................... | 762 70 |
| --------- | |
| Total ............................................................. | $1,198 05 |
Eva Webb is due one-half...
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