*1 controversy between Therefore, no there is buyer the ordi- in of proval definition the plain- toas plaintiff banks and the other whom of “one nary trade course unjust enrichment. tiff’s claimed action who acts value, and for new are sold goods knowledge of faith without good in and is re- court the trial judgment of liberty trustee of the limitation on the remanded, instructions with versed and If as mortgagor) sell.” sic (mortgagee F. L. of in favor judgment set aside the supra, purchaser Butts, in v. the Ashcraft Pruitt A. against H. King L. P. and Holton express limitation on knowledge of an has judgment render Co., Inc., Produce and sell, possession to the liberty of one in favor of $2,875.52 in in amount of not be a then definition would under this Ardmore,, plaintiff, First National Bank buyer But ordinary course of trade. Co.,. in Produce against Pruitt H. A. knowledge there no such Pruitt had First Na- judgment in favor of Inc. The liberty Eeds to were limitations no on defend- tional Bank of Ardmore authority had sell. unrestricted Eeds ants, Com- Bank Trust First National & merely knowledge of a sell. Pruitt pany City, Reserve Federal of Oklahoma by which had been waived mortgage City Bank' Bank and First of Kansas State prop- mortgagee’s act consenting in Seminole, remanded, is reversed and by erty resold Eeds. judg- instructions to set aside said favor of said by ment and render finally argues Holton reason defendants. mortgagee of 46 is O.S.1951 § longer lien deemed waived his DAVISON, HALLEY, JOHNSON, consenting prop mortgaged to sale of the CARLILE, JJ., BLACKBIRD concur. erty. provides This section that when the sells mortgagor with the consent of CORN, WELCH, J, J., V. C. while mortgagee mortgage still in WILLIAMS, J., dissent. force, mortgagor is trustee proceeds sale for the benefit
mortgagee. appears that this statute purpose protecting
enacted for
consenting mortgagee does lose because he unqualifiedly
his lien when he consents ato event, any
sale. In it does have the
effect the rule abrogating that consent to by mortgagee ordinarily results sale Error, BROWN, Plaintiff waiver of the lien. The cases cited
Holton construing this hold that the statute PECK, mortgagee prior right has a Lester to that of the Defendant in Error. creditors mortgagor his to recover the No. 37524. owing purchase price,
debt for the but this Supreme Court of Oklahoma. only right means Holton’s to recover Feb. owing prior debt from King’s Eeds rights. argued It cannot be that such rule Holton
entitles recover from Pruitt
conversion.
We conclude that neither Holton nor Pruitt,
King recover is entitled to from plaintiff therefore entitled to re-
cover tendered into court $2875.52
Pruitt. Inasmuch as is entitled to Pruitt, from it has
recover sustained no loss paying reason of the check involved. *2 Sullivan, Sullivan, D. Paul Jerome
Duncan, in error. Ardmore, Springer, for defendant Harold in error.
DAVISON, Chief Justice. plaintiffs, suit This was instituted Faye F. grantees, Brown and her Pat Shirley Brown, Wagnon, Clarabelle Brown Akers, quiet Lige Brown Cochran and title to undivided their a total one-seventh in a tract of land in Carter interest 160acre Oklahoma, County, defend- Peck, Boone, Daye ants, Orva Lester Fern Peck, Peck, Pat- K. Bernice Fleda Jent rick H. Peck. The said Brown plaintiffs the mother of all other de- Akers and was sister of all parties fendants. will be The referred to appeared they same in which order trial court. controversy is, practical here for all Brown, purposes, plaintiff, between brother, Peck, her Lester one property involved con- the defendants. quarter aof section of land which was sists mother, Peck, in acquired their Belle January, In unalloted land deed. husband, 1945,shortly the death her conveyed Belle the said Peck equal shares chil- undivided seven dren, date, by a deed of recorded Feb- defendant, ruary Orva Lester to a claimed title two-sevenths interest alleged plaintiffs by superior title of property of a deed to entire virtue September of executed his mother left; immediately Prior the deed living. that witness who then and his suit, notified his mother another defendant who was in this commencement occur- house. Defendant conveying a one-seventh denied executed deeds rence of an lands such incident insists that the each in said interest undivided *3 are de- to duly regularly deed was and delivered who and sisters other five brothers However, that it that Belle parties significant concede him. is Ail herein. fendants un- property, denying Peck was the owner of the five-sevenths a total of said five own they delivery, that that and and defendant testified property in the divided interest by this in the deed was him his delivered to considered not be further need the at note endorsing the time a defendant was controverts litigation. The a two- for him at the bank. Lester Peck title claim Orva of 1940 the upon interest founded sevenths testimony plaintiff’s in the by favor there that upon alleged grounds deed the corrob- mother and brother of defendant that and deed no consideration said was by circum- orated other admitted and facts conse- delivered, and same was never the following: stances. These consist of the The trial quently, ineffective and void. was Although delivery defendant of the asserts grantees plaintiffs, the other court held that 1940, after it deed soon its in was execution claim- extent Brown, the of had title to placed 1951; not of record defendant until not recorded 1940 was ed the deed no claim latter ownership made of until the conveyances to 1951, long after until the date; immediately recording 1940 after the remain- further It was held them. warranty deed defendant executed a deed was owned n der the two-sevenths interest of conveying a in undivided interest each Faye Brown that the defendants and property the to all of his brothers and sisters that property. From the owned planitiíf; property after 1945 appealed. judgment she has parts was assessed for taxation in seven and n paid taxes; each child rental thorough review and From a careful agricultural from the income and the leases record, opinion that are of we gas equally from oil and divided was leases been de- not was shown to 1940 deed children; between the seven defendant plaintiffs entitled that livered and were n never claimed more his of income than mother, prayed Belle as for. n paid and never more than his of the deed, testified Peck, grantor in the 1940 taxes. All of these inconsistent facts are and was never the same was delivered that delivery passing and deed delivered; that, at to be intended never title. deed, the the execution of the 1940 time of oil regularly employed testimony in the There was is considerable in the defendant thought concerning they might be able record estate he of P. H. fields and deceased, gas purposes; particularly for oil and other the land numerous lease be was to of land owned was and tracts him at the time of that the deed executed possibility All his death. of such in the event the lease evidence delivered is imma- out; that, sold, Mr. merely if a lease terial to issues was here and tends to worked payments litigation. cloud and confuse Mrs. Peck were receive this has no terms; bearing was on whether or under its that the land not the made 1940 deed delivered, in away only question and the was filed was which is leased deed never closet; necessary However, that it remained there for determination here. box strongly took it it indicate the defendant out does a motive for until de- any position. de- was never intention of fendant’s He attempting there that- exchange of the brothers force Brown to livering it. One defendant’s for her 1949, property involved, he were and defendant share here an in- testified papers through some be- in a 20 acre tract boxes of terest going oil-producing parents they individually, ran their when owned longing to her title be- deed; approved took ing old that the defendant and affirmed this court across the Brown, Okl., executed, second deed was delivered the case of Jent strengthen position tends to filed for record. 1005. Such plaintiff’s case here. question There is no that the first deed but was executed. It was December dated pres The law determinative record 1940. This deed was filed for firmly estab controversy simple ent until November validity of lished. “It essential to delivery sister this deed deed that there an actual claimed * * delivery pass A valid never delivered to her but order to title *. brother long pass only when extracted it from her files father’s sufficient title occurs *4 so deed her father’s parts death. Another grantor with over the dominion .brother * * * lititgants these pass testified. mother of with the intention title. The to testified, old, delivery years with then almost that 77 Whether there was valid a she grantee deed was not but admitted present into delivered pass intent to title McNeill, turned the deed over her husband question is a of fact.” Dowell v. to Echols, Okl., 859; she and he executed it. P.2d Little v.
Okl., P.2d his brother, that The Orva testified that the evi- Our conclusion is gave him the in 1940 deed executed (cid:127) delivery establishes dence that there was him advanced money to secure for some he of the 1940 deed the defendant his that for his father. He further tesified nullity. equita was a “In action he same an promised Brown him if sister n ble cognizance this Court will examine a deed back to their father’s estate would evidence, and weigh (cid:127)whole record she certain farm which stood in his name trial court judgment will reverse the twenty a certain that stood would deed acres against weight of if found to be the clear he name back to After in her the estate. contrary to established the evidence or performed agreement she his of this n Briscoe, principles equity.” Rees v. Okl. go through part of refused to with her 758, 759. 315 P.2d put deed agreement. He then decided that his delivered on record father had judgment is re- reversed and cause gave broth- him 1940. He to each of his render manded directions to in the a interest ers and sisters one-seventh plaintiffs. for re- sister Brown. He his her fused to deed one-seventh WILLIAMS, JACKSON, J., V. reneged twenty acre deal. she had on the BERRY, JJ., concur. IRWIN deed saw the A sister Fleda testified she HALLEY, and BLACK- possession in 1941 JOHNSON brother in his to her Orva BIRD, JJ., dissent. or 1942. testimony then the of the mother haveWe HALLEY, (dissenting). Justice not Orva al- the deed was delivered to that lawsuit in which a control and is an unfortunate was in her though This deed not ques- sister litigating Daye and a are son Peck that brother of the oldest that papers a ownership of an interest it tion of the take out of his saw Orva father’s equitable It is matter land. piece of other hand we in 1949. On been testimony and has decided that father delivered cognizance of Orva his in favor his testified judge brother. If him and his sister Fleda trial the deed against weight possession the clear before in Orva’s decision saw deed she it should affirmed. be died. the evidence her father question principal for determination evidence further shows deed which had been delivered note at the Bank in Duncan paid whether was 30, 1945, prior January when automobile went into an brother included $670
9ii There Faye Brown and mother.. parents his assisted that Orva was evidence years. depression decision say now can we
How judge trial by the
reached viewI the evidence? As weight of
clear was more There not. it was
the evidence deed
testimony that established not. it was there was that than
delivered gran that where a remembered deed, duly executed possession
tee is only be delivery can favor
presumption in clear, positive evidence
rebutted Okl., Pugh,
contrary. Fisher v. 360, 230 Collett, 204 Okl.
181 and Wasson *5 Deeds 26A § also 258. See C.J.S.
204.
I dissent. JOHNSON, state that
I authorized am herein. expressed views
J., concurs error, GOOD,
Lloyd Plaintiff Drilling WHAN, Com Whan W.
Carl d/b/a pany, in Error. Defendant
No. 37860.
Supreme of Oklahoma. Court
Jan. 1959.
Rehearing Denied Feb.