233 P. 449 | Okla. | 1925
In their brief defendants have presented and argued only two propositions, one involving an instruction given by the court and the other involving a requested instruction which was refused. These are assignments of error No. 15 and No. 11, respectively, and other assignments are expressly waived.
This was an action to foreclose a vendor's lien on certain real property described in plaintiff's petition. No money judgment was sought against any of the record owners of the land. Judgment by default was entered against plaintiff's debtor, who was a prior record owner, and the cause proceeded to trial upon the issue of the existence and validity of the lien claimed. The answer of the defendants, the owners of the land, consisted of a general denial, some admissions which are not material here, and a plea of innocent purchase for value and without notice of the lien. The case was therefore one of purely equitable cognizance. Gamel v. Hynds et al.,
"The relief granted in equity is such as the nature of the case, the law, the facts demand, not at the beginning, but at the time the decree is entered in the litigation."
By the first proposition defendants call in question the correctness of the fifth paragraph of the court's instructions to the jury. *95
This is not available as a ground of error in this court in an equitable action. The verdict of the jury in equity cases being merely advisory, and it being the duty of the court to weigh the evidence and to adopt or reject the findings of the jury according to the equities of the case and the rights of the parties, error is not assignable upon the exercise of discretion by the court as to what question of fact germane to the issues shall be submitted to the jury. Prentice v. Freeman,
Defendant's second proposition assigns error on the action, the trial court in refusing to give to the jury defendants' second requested instruction. For the reasons stated under the first proposition, and upon the authorities there cited, this exercise of judicial discretion by the trial court will not be controlled by this court.
In equitable actions the findings and decree of the trial court will be sustained unless against the clear weight of the evidence. It is the duty of parties complaining of the decree or of the findings on which it is based to show wherein error lies. The action of the trial court in the two particulars complained of not presenting errors of law, error will not be presumed in reference to other matters of which no complaint is made. Seaver v. Rulison,
No error of law prejudicial to the substantial rights of defendants being made to appear, and it not having been pointed out wherein the findings and decree are against the clear weight of the evidence in the case, the judgment of the trial court should be in all things affirmed.
By the Court: It is so ordered.
Note: — See under (1) 21 C. J. pp. 586, 594, 4 C. J. p. 660.
