Whelan v. Adams

• Decision Date: 13 October 1914
• Docket Number: Case Number: 3027,Case Number: 3003
• Citation: 44 Okla. 696,145 P. 1158,1914 OK 504
• Parties: WHELAN v. ADAMS et al.
• Court: Oklahoma Supreme Court

1914 OK 504

145 P. 1158

44 Okla. 696

WHELAN v. ADAMS et al.

Case Number: 3003

Case Number: 3027

Supreme Court of Oklahoma

Decided: October 13, 1914

Syllabus

¶0 1. APPEAL AND ERROR -- Review -- Trial -- Time -- Prejudice. Where from the conceded facts it appears that the parties to an action have no title to the subject-matter of the litigation, hence no right to maintain an action or recover affirmative relief by cross-petition, and where the only judgment recovered against them, except an adverse adjudication of the title, is vacated on appeal, error in the trial court forcing them to trial on the day that the issues of fact were joined is without prejudice and furnishes no ground for reversal.

2. HOMESTEAD--Conveyance--Requisites-- Joinder of Spouses. Section 2, art. 12, of the Constitution, prohibits the sale of the homestead of the family, where the owner is a married man, without the consent of the wife, given in such manner as may be prescribed by law.

3. SAME--Conveyance by Married Man--Joinder by Wife. An attempted conveyance by deed of the homestead of the family by a married man, given without the wife's consent in the manner prescribed by law, is void.

4. SAME--Separation of Spouses--Abandonment. Where the relation of husband and wife exists, the deed of the former to the homestead of the family conveys no title, and this notwithstanding the fact that the husband and wife be living separate and apart, or even though the wife may have without justifiable cause abandoned the husband.

5. SAME--Mortgage to Wife -- Foreclosure -- Sale -- Rights of Purchaser. Where a husband gives a wife a mortgage on the homestead to secure the payment of a postnuptial settlement, which mortgage she subsequently forecloses by suit, the purchaser at the foreclosure sale succeeds to her rights and may attack as void a deed given to the homestead by the husband without the wife's consent.

6. SAME--Statutes--Validity. Sections 882 and 883, Wilson's Rev. & Ann. St. 1903 (sections 1189 and 1190. Comp. Laws 1909; Rev. Laws 1910, sec. 1145), infringe upon and are repugnant to section 2 of article 12 of our Constitution, prohibiting the sale of the homestead, where owned by a married man, without the consent of his wife given in the manner prescribed by law; hence were not extended in force in the state by section 2, art. 25, of the Constitution.

7. SAME--Conveyance by Husband--Separate Deed--Rights of Wife--Rents. Evidence examined, and held, that the wife is not entitled to recover rents for the years 1909 and 1910.

Titus & Carpenter, for plaintiff in error Frank H. Whelan. Talbot & Owen, for plaintiffs in error

P. O. Adams and Effie Adams. George W. Partridge, for defendant in error Mary F. Whelan. Garber & Kruse and Riley Cloud, for defendant in error Emery L. Metcalf.

SHARP, C.

¶1 The controversy between the parties concerns the title to a quarter section of land in Alfalfa county which was patented by the government to one James D. Whelan in 1906. Prior thereto, and in March, 1904, said James D. Whelan and Mary F. Whalen were married, and continued to reside together as husband and wife on the land in question until July 18, 1907, when, owing to domestic troubles, they separated, the husband continuing to reside on the farm, and the wife in the city of Cherokee, Alfalfa county. In 1907 each filed a divorce suit against the other, in different courts, which suits were pending and undetermined on May 21, 1908. On the latter day they entered into a contract, whereby the said James D. Whelan was to pay his wife, at fixed times, the sum of $ 500, and dismiss his divorce proceedings, and further agreed to begin a new suit for divorce, charging as ground therefor defendant's abandonment of plaintiff, and to which suit to be so instituted the wife would make no defense. The wife also agreed, in consideration of the husband's undertakings, to dismiss her divorce suit, and, further, that upon payment of said sum of money, she would make no claim or demand of him for either temporary or permanent alimony or suit money. The performance of the provisions of this postnuptial contract was secured by a mortgage concurrently executed by the husband on the land in question, which mortgage was on the day of its execution duly placed of record. At the time the land was occupied by the husband as a homestead. Thereafter, and on the 29th day of May following, the said James D. Whelan executed a deed, purporting to convey to the defendant P. O. Adams the land in question, but this deed was not signed by his wife, and was given without her knowledge. On the 1st day of June following, P. O. Adams, joined by his wife, Effie Adams, executed a mortgage on said land to the plaintiff, Frank H. Whelan, a brother of James D. Whelan, which mortgage purported to have been given to secure the payment of a $ 3,000 note of even date, in favor of said mortgagee. This mortgage was placed of record on the day of its execution. James D. Whelan having defaulted in the payment of the amount named in the settlement made with his wife, the latter, on July 17th following, instituted in the district court of Alfalfa county an action to foreclose the mortgage given to secure the performance of the contract. Neither P. O. Adams nor his wife nor Frank H. Whelan was a party to the foreclosure action. Personal service of summons was had on the defendant James D. Whelan, and on the 2nd day of October, 1908, a judgment foreclosing said mortgage was rendered by the district court, and at a foreclosure sale subsequently held the land was purchased by the defendant Emery L. Metcalf, subject to a first mortgage in favor of the Monarch Loan Company. The sale being confirmed, a sheriff's deed was executed and delivered to said Metcalf on March 2, 1910, and placed of record in the office of register of deeds. The present action was brought on December 15, 1910, by Frank H. Whelan, to foreclose his mortgage given by the defendants Adams and wife. It is insisted by each of the plaintiffs in error that neither Mary F. Whalen nor Emery L. Metcalf has any right, title, or interest in the land in question, and, further, that Metcalf was not an innocent purchaser for value, and was not, therefore, entitled to an order restoring to him his expenditures laid out in the purchase of said farm, and the subsequent payment of taxes thereon, and interest on the Monarch Loan Company loan. On the part of Mary F. Whelan it is insisted in her answer and cross-petition that for numerous reasons named the deed executed by her husband to P. O. Adams was void, and that hence Frank Whelan acquired no rights in the premises by virtue of his mortgage. As to her codefendant, Metcalf, Mary F. Whelan asked that the court enter its decree canceling any claim, right, or title that said defendant might have in the premises. In her reply to the answer and cross-petition of defendant Metcalf, said defendant Whelan set up the mortgage given in her favor by her husband, the contract of May 21, 1908, the mortgage foreclosure proceedings, the shertiff's deed executed pursuant thereto, and charged that said contract and each and all of said proceedings were illegal and void, and tendered back to said Metcalf $ 500, and interest. The defendant Metcalf, in his cross-petition, also charged that, for different reasons assigned, Adams acquired no title on account of his purported deed of May 29th, and that therefore the mortgage given by him and his wife to Frank H. Whelan in turn conveyed no interest or right to the property in question. Said defendant further set up the proceedings through which he acquired title at the foreclosure sale, including the sheriff's deed, charged that Mary F. Whelan was estopped from attacking his title, and asked for a cancellation of the deed from James D. Whelan to Adams, for a judgment barring the defendant Mary F. Whelan from any claim, right, title, or interest in the premises, and for a further decree vesting and conferring the title to said premises in him. It was insisted on the part of the plaintiffs in error that Mary F. Whelan, in July, 1907, voluntarily and without cause abandoned her husband, and that the agreement of May 21, 1908, between James D. Whelan and his wife, and the subsequent foreclosure proceedings brought to enforce the terms thereof, the judgment of the court, order of confirmation, and the sheriff's deed, were each and all illegal and void, being against public policy, and that thereby the said Metcalf acquired no title by virtue of the sheriff's deed; that, Mary F. Whelan, having without justifiable cause abandoned her husband, the deed executed by the latter to Adams on May 29th was valid, though not executed by her. The case was tried before the court, special findings of fact and conclusions of law being made. In the decree Mary F. Whelan was given the immediate possession of the land in question, which was found to be the homestead of herself and husband. The sheriff's deed executed to the defendant Emery L. Metcalf was adjudged to be void, and it was ordered that said Metcalf have a lien against said land for the sum of $ 988.43. The mortgage executed by Adams and wife to Frank H. Whelan and wife was declared to be null and void, and ordered canceled, set aside, and held for naught, and said P. O. Adams and Effie Adams were adjudged to be in wrongful and unlawful possession of the premises, and their title ordered divested. Judgment was rendered against Adams and wife for $ 570; that being found to be the reasonable rent and profit arising from the land during their period of occupancy. Neither defendant Mary F. Whelan nor Emery L. Metcalf filed a motion for a new trial; hence, as between them, the judgment of the trial court is final. In view of our conclusions, it will be necessary to consider but few of the many assignments of error. The trial court's action in forcing plaintiff and defendants P. O. Adams and Effie to trial on the day the issues of fact...