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Sims et al. v. Central State Bank.

an amendment of the petition ought to be allowed to conform it to
the facts proved, the judgment will not be reversed on account
of such variance.
(Syllabus by Galbraith, C.)
Error from District Court, Muskogee County;

R. P. de Graffenried, Judge.

Action by the Central State Bank against William H. Sims and others. Judge for plaintiff, and defendants bring error. Affirmed.

Wm. M. Neff and L. E. Neff, for plaintiffs in error.
Dan M. Meredith, for defendant in error.

Opinion by GALBRAITH, C. The defendant in error commenced this action against the plaintiffs in error, to recover the amount of a promissory note and to foreclose a real estate mortgage given to secure the same. The defendant Sims appeared and filed a general denial; the defendants Rowsey and Pickens made default.

A jury was waived, and the cause submitted to the court, and the court found for the plaintiff, and decreed a foreclosure of the mortgage. The property was ordered sold without appraisement, after the expiration of six months from the date of the judgment, and at the expiration of that time an order of sale issued to the sheriff, who advertised and sold the real property. A return of the sale was made to the court, and the same was confirmed in November, 1913. In March, 1914, upon notice and motion an order was entered permitting the sheriff to file an amended return of sale. The appeal is by petition in error and transcript, and seeks to bring up for review the order confirming the sale.

There is but one assignment of error that calls for the consideration of this court, that is, that it appears

Opinion of the Court.

from the record that the property was sold without appraisement, and the sale was therefore void. It does appear from the record that the note evidencing the indebtedness contained no provision waiving appraisement, and it further appears that the mortgage given to secure the note specially waived appraisement, and since the note and mortgage are construed as one contract (Oklahoma City Development Co. v. Picard, 44 Okla. 674, 146 Pac. 31), the appraisement was waived, and the sale was authorized to be made without appraisement under section 4016, Rev. Laws 1910.

It is also objected that the judgment of foreclosure was taken for a larger amount than was prayed for in the petition, and, also, that the property was advertised to be sold at 2 p. m. on a certain day, and the return of the sheriff showed that it was sold at 10 a. m. It also appears from the record that an amended return was filed, and the plaintiffs in error had notice of the hearing of the application to file such amended return, and that they made no appearance or resistance thereto; that they raised no objection in the trial court to the order of confirmation, or to filing the amended return of sale, and in no other way called to the attention of the trial court the objections here urged, and in no instance saved exceptions to the ruling made in the trial court. The rule announced by this court in Love v. Kirkbride Drilling & Oil Co., 37 Okla. 804, at page 812, 129 Pac. 858, at page 861, is a complete answer to the contention made on behalf of the plaintiffs in error. Therein the court, in answer to similar objections, says:

“Where there is a variance between the allegations of the petition and the facts proved on the trial, yet, if it be a case where an amendment of the petition ought to be

Sims et al. v. Central State Bank.

allowed to conform it to the facts proved, the judgment will not be reversed on account of such variance. Missouri Valley Ry. Co. v. Caldwell, 8 Kan. 244; Mitchell v. Milhoan, 11 Kan. 617; Hummor 0. Lamphear, 32 Kan. 439, 4 Pac. 865, 49 Am. Rep. 491. In such case, though no formal amendment was made, it will be considered as made by this court. Pape v. Capitol Bank, 20 Kan. 440, 27 Am. Rep. 183; Tipton v. Warner, 47 Kan. 606, 28 Pac. 712; Loper v. State, 48 Kan. 540, 29 Pac. 687.”

It is contended that the fact that the sale was made at a time different from that advertised appears from the record proper, as the return of the sheriff is a part of the record proper, and it is brought up by transcript without exception having been taken thereto in the trial court. Assuming this contention to be true, it would follow that the amended return is also a part of the record, and is entitled to like consideration as the original; and, inasmuch as the amended return corrects the objection made to the original, and shows that the sale was made at the time and place advertised, this objection is unavailing to the plaintiffs in error.

From a careful examination of the record, we are unable to find any good reason why this cause should have been brought to this court, and we therefore recommend that the judgment appealed from be affirmed.

By the Court: It is so ordered.

Cherokee Nat. Bank et al. v. Riley.

CHEROKEE NAT. BANK et al. v. RILEY.

1.

No. 6180. Opinion Filed February 29, 1916.

(155 Pac. 1140.) HOMESTEAD Judicial Sale Purchase by Wife-Estoppel. Where the wife attends a sheriff's sale of a homestead, which homestead at the time is occupied by herself and family, and which sale is had to satisfy an individual indebtedness of her husband, created for no purpose for which the homestead could be legally sold, and at which sale she buys the property thus sold and accepts a deed from the sheriff and places the same of record, she is not estopped thereby from subsequently asserting a homestead claim in said property, and the sale thus made by the sheriff to her is void, and the deed conveys no title of said homestead to her. HOMESTEAD—Alienation by Wife Alone-Right. The wife alone, under the laws of Oklahoma, cannot alienate the homestead by an express contract. Hence it follows that she cannot do so by parol declarations or negative silence, or acy positive act or failure to act. (Syllabus by Hooker, C.) Error from District Court, Craig County;

Preston S. Davis, Judge.

2.

Action by Jane Riley against the Cherokee National Bank and another, to vacate a judgment. Judgment for plaintiff, and defendants bring error. Affirmed.

Riddle & Bennett, for plaintiffs in error.
W. M. Simms and T. D. Frear, for defendant in error.

Opinion by HOOKER. C. In 1909 and 1910 one Moses Riley held the legal title to the real estate involved in this action, upon which he and his wife and family resided as a homestead. About the first of the year 1910, Moses Riley left the State of Oklahoma, and from that time on his wife and children occupied this property as their homestead. In October, 1910, the Cherokee National

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Bank instituted a suit in the district court of Craig county against Moses Riley alone, upon an individual indebtedness due to it by him, and it proceeded against said Riley as a nonresident, procuring service by publication, and an attachment against the property involved in this ac. tion, which was at that time occupied by Jane Riley and her children as a homestead. Thereafter judgment was rendered in said action, sustaining the attachment and ordering the property to be sold to satisfy the debt due to the bank by Moses Riley. In due time this property was sold by the sheriff under the order of the court rendered in the aforesaid action, and at said sale Jane Riley was the highest and best bidder, and the sale was afterwards confirmed and a deed made by the sheriff to her. She obtained the money with which to pay the amount of her

in said sale from this bank, who was the plaintiff in said action, and in order to secure the bank she executed to it a mortgage upon the land thus purchased by her, and by the same mortgage she secured an individual indebtedness due by her to another, and when this indebtedness matured, for which said mortgage was given as security, she made default, and the bank instituted suit in the district court of Craig county to recover a judgment upon the note due it by her and to foreclose its mortgage lien upon said property. Personal service was had upon her, and service by publication had upon Moses Riley, and also other parties, who claimed liens upon the property by virtue of the mortgage executed by her, were made defendants. No appearance was made in said action by her or Moses Riley, and thereafter judgment by default was rendered upon said note and mortgage in favor of the bank, and also in favor of the other parties holding a mortgage lien upon said property, and a sale of the prop

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