Woodrow v. Ewing

• Decision Date: 24 February 1953
• Docket Number: No. 34428,34428
• Citation: 263 P.2d 167,1953 OK 60
• Parties: WOODROW et al. v. EWING et al.
• Court: Oklahoma Supreme Court

Page 167

263 P.2d 167

1953 OK 60

WOODROW et al. v. EWING et al.

No. 34428.

Supreme Court of Oklahoma.

Feb. 24, 1953.

As Amended Oct. 27, 1953.

Rehearing Denied Nov. 17, 1953.

Syllabus by the Court.

1. The force of former judgment as an adjudication of the rights of the parties thereto and those in privity with them is not affected by the fact that the former judgment may have been erroneous, and hence, such judgment is required to stand until corrected in some appropriate way.

2. Where, in a former action to quiet title, judgment was against a father and mother, the original owners of the property, quieting title thereto in a person who had purchased it from the County, to which it had previously been sold for delinquent paving assessments, only; and, thereupon the couple reacquired title to the property by a joint tenancy and survivorship deed from said judgment creditor, allowing the judgment to become final; and, after the mother's death, the father sold it to innocent purchasers, who then sought to quiet their title in a new action; Held, that in latter action, the former judgment was not void but was a bar to the claims of the couple's sons and daughters seeking to have the title quieted in them.

3. Where plaintiffs were in possession of realty through their grantor and tenant and the purpose of their action was to remove clouds from the title and primarily to administer equitable relief, such an action was not one for relief as in ejectment at common law, nor for the recovery of specific property as is defined in 12 O.S.1941, § 556; and, accordingly, is not an action in which said statute requires a jury trial for issues of fact.

4. Record examined and, Held: That the trial court's finding that plaintiffs in quiet title action were in possession of the property involved, through their grantor and tenant, was not clearly against the weight of evidence nor contrary to law.

Cook & Bingaman, H. H. Montgomery and Geo. Bingaman, Guardian Ad Litem for minor plaintiffs in error, all of Purcell, for plaintiffs in error.

Hardin Ballard, Purcell, for defendants in error.

BLACKBIRD, Justice.

This action involves the title to a residence in Purcell, Oklahoma. The appeal herein has been perfected on behalf of the sons and daughters of Joe Cunningham an his deceased wife, Bessie. The premises was their family home for several years. Joe Cunningham first acquired it in 1936, but about two years later it was sold to the County at resale for delinquent paving assessment for the years 1928 to 1932, both inclusive. The deed to the County was filed of record on April 19, 1938. Thereafter, in June, 1943, Cunningham conveyed the property to his wife. Later in 1943, one L. T. Hine purchased the property from the County, obtaining a County Deed dated December 1, 1943, which in words and figures reads exactly the same as if said sale were based upon a resale to the County for ad valorem taxes. Thereafter, on February 25, 1944, Hine filed suit in Cause No. 7418 of the District Court to quiet title to the property on the basis of this deed, naming among other defendants, the County and its Board of County Commissioners, the City of Purcell and its Financial Secretary, and both Joe and Bessie Cunningham. Mr. and Mrs. Cunningham were defended in the case by their attorney Roy Glasco. Plaintiff Hine prevailed, however, and on November 16, 1944, obtained judgment quieting title to the home in him. The next day, through what apparently was a sort of settlement or accord and satisfaction of the judgment, Hine, without ever having occupied the property, executed a quitclaim deed conveying all his right, title and interest in the property to Joe and Bessie Cunningham 'As Joint Tenants And Not As Tenants In Common The Survivor To Take The Whole Upon The Death Of Either.' Accordingly, no appeal was ever taken from the judgment. The Cunninghams and their children continued in possession of the home until Mrs. Cunningham died, June 29, 1946. Even then, Mr. Cunningham and at least some of the children continued to use the property as a home but he was away much of the time on extended trips and his younger children were cared for mostly by older ones. On February 25, 1949, Cunningham entered into a contract with defendants in error, Mr. and Mrs. Ewing, to sell the property to them. This sale transaction was consummated three days later when Mr. Cunningham delivered his deed to, and received from the Ewings all of the consideration of $3500 agreed upon, except $250 which, by agreement, was left in escrow to pay the expenses of perfecting the title by the present action, which was thereafter filed on March 5, 1949. According to Mr. Ewing's testimony at the trial, it was agreed by him and Cunningham, about the time the sale was closed, that the latter might continue to occupy the premises during the course of some repairs that the Ewings planned to make on the property.

Judgment was entered in this action quieting the Ewings' title, May 25, 1949. Joe Cunningham was neither a party to nor a witness in the action. His sons and daughters and the guardian ad litem of the younger ones will hereinafter be referred to as defendants and the Ewings as plaintiffs, as they appeared in the trial court.

In this appeal defendants argue three assignments of error. As two of them involve the related matters of title and possession and hinge to a greater or lesser degree upon the validity and effect of the hereinbefore mentioned judgment L. T. Hine obtained in Cause No. 7418 as a link in the property's chain of title, we will consider them first.

One of these propositions is that plaintiffs did not have the common law requirements of unity of time, title, interest, and possession necessary to create a joint tenancy. In their argument they refer back to the County deed upon the basis of which Mr. Hine commenced Cause No. 7418, and to a sale of the property for ad valorem taxes to one of the Cunningham's predecessors in title. They attempt in a rather involved and circuitous manner to demonstrate that Hine's joint tenancy deed to the Cunninghams after judgment for him in this prior quiet title action, could not have established a joint tenancy in his grantees, the Cunninghams, because Hine's interest was based upon a sale for delinquent paving assessments only, and was no more than coequal with the lien for ad valorem taxes that had already vested in Mrs. Cunningham through mesne conveyances, the last of which was her deed from Mr. Cunningham in 1943. If, as they say, Hine's deed to Joe and Bessie Cunningham could not have created in them a joint tenancy, then there is logical basis for defendants' conclusion that by plaintiffs' deed from Joe, they acquired only the one-third interest, that otherwise upon Bessie's death, intestate, would have descended to him as her surviving spouse, with the defendants, her surviving children, inheriting the other two-thirds interest. Of course, in taking this position, defendants have to attack the judgment in Cause No. 7418, purporting to quiet the entire fee simple title to the premises in L. T. Hine, grantor in the joint tenancy deed to the Cunninghams. Defendants contend that this judgment is void.

The Journal Entry of said judgment introduced in evidence in this case contains findings by the court that when Hine, plaintiff in that action, purchased his deed from the County he would not have did the $1690 he paid for the property had he not been misled by a statement of the County Treasurer that the sale would operate to cancel delinquent ad valorem taxes as well as paving assessments. The court further found that by reason of this misrepresentation Hine was entitled to have the sale cancelled and the purchase money returned, but that this could not be done because $778 of it had already been distributed to the paving bond holders, and the County Treasurer had only $910.82 left out of said proceeds. On the basis of these facts, the court then found that in order to do equity in the matter, title to the property should be quieted in Hine, subject to unpaid ad valorem taxes, and the County Treasurer should be required to return to Hine the above mentioned balance of the purchase money in his possession. The judgment did not in so many words purport to cancel or annul the County's sale to Hine, but otherwise, it was in accord with the above findings.

Defendants argue that by this judgment the court in effect completely resold the property, fixed a new bid on it, and completely rearranged 'this purported tax title and then rendered the inconsistent judgment that the purchase price be refunded'--that, in substance, Hine's deed was declared void and yet his title was quieted thereon. They cite 49 C.J.S., Judgments, § 48, pages 110, 111, for the propositions that: 'A judgment is void for inconsistency where it grants relief both to plaintiff and to defendant on inconsistent grounds' and: 'a valid judgment, inconsistent with his own allegations and admissions, cannot be rendered for a party.' They also cite the cases of King v. Brockschmidt, 3 Mo.App. 571, and Algeo v. Algeo, Mo.App., 207 S.W. 842. This argument, though somewhat exaggerated in its representations concerning the purport of the decree, would be worthy of more serious consideration if made in a direct, rather than a collateral, attack upon the judgment involved, and, we can readily conceive of many hypothetical judgments that would be so inconsistent as to be...