*1 9, time, September (Citations 1971. At grantor.” title of such omit- ted.) Vanns were still the record owners. The conveyance
Vanns’ to Whitlock did not oc- specifically, More Valley Illinois held that being cur until November and mortgagee inquire need not as to the title property, they record owners of the could prior grantor. of a prior grantors not be at the time the first mortgage to the Federal Land Bank was CONCLUSION executed. Considering allegations all and admitted Vanns, Vanns do not contend there are facts most favorable to the this any unresolved issues of material facts sur court finds the Vanns have failed to state a 9, rounding September mortgage against sufficient cause of action Tonkawa Therefore, only to the Federal Land Bank. sustaining Bank. The order the demurrer presented regard issue is to in favor of the Tonkawa Bank is therefore mortgage. the Federal Land Bank’s first affirmed. This court further finds no con- We hold that since the loan was obtained at troversy any as to material facts with re- benefit, their and for their and gard to the first Federal Land Bank mort- they since received the benefit of the first gage undisputed facts, that under the and mortgage proceeds loan off the Federal Land Bank is entitled judgment —to foreclosure Vanns are es- as a matter of summary judg- law. The —the topped denying validity. Thus the ment for the Federal Land Bank is also summary judgment proper. affirmed. II STUBBLEFIELD, and BRIGHTMIRE length The Vanns further assert the JJ., concur. possession premises
of their of the be notice of a fact inconsistent with record thereby
title put sufficient to an ordi
nary prudent inquiry man on mortgages September
to all after 1971. always recognized
Oklahoma cases have longstanding pos rule that continued grantor prior regarded
session of a is not Ware, as constructive notice. 199 Okl. at KISSINGER, Appellee, Debbra Lee 98-99, 522; Perry 182 P.2d at v. Nor ris, (1936). Okl. KISSINGER, Appellant. Steve G. Even if the Federal Land Bank and knowledge the Tonkawa Bank had of the No. 59092. possession premises, they
Vanns’ of the did Oklahoma, Appeals Court of duty inquire not have a into claim Division No. 4. by making At the time held the Vanns. Bank in mortgages, their the Federal Land Nov. 1984. 1973 and and the Tonkawa Bank in by Released for Publication Order of upon relied the record of title which Appeals Court of Dec. 1984. Valley
was held Whitlock. Illinois Sells, Company v. 167 Okl. 59- Trust (1933), Supreme part: stated in
Court grantor,
“[Kjnowledge that a under claims, possession inis
whom the vendor knowledge property, is not such upon inquiry as to the put purchaser *2 Cerchie, Tulsa, for appellee. R.
David Griffith, Tulsa, J. Bradford appellant. “parties BRIGHTMIRE, had an oral Judge. to reduce support” “[p]ayments at in 1979 woman obtained a divorce agreed-upon reduced rate were regu- nearly marriage and years twelve after (3) larly”; accepted, acquiesced the woman couple’s minor gained two in, waived to enforce the present controversy began children. *3 child decree. the man asked that the decree be when by granting him undergirded modified The thesis is man’s request by Kansas, triggered Arkansas, older child. This a cases Texas, Cali- support arrearage the woman for a child fornia and York.2 New was in ar- judgment. The man denied he undertaking Before to determine the law by reason of an earlier rears regarding issue, of this state the arrearage pay woman to less than that or- with the helpful it would be to examine the relevant by the court and she dered contended evidence in detail. some enforcing estopped from the de- should be testified, The man “We discussed the order—a court re- cretal defense the trial fact that with all the having bills that I was jected. pay, to I manage that could not pay to a obtaining the cus- man succeeded in fifty hundred and dollars a per month child a sought, unhappy he is about tody he but and continue to [as all the ordered] requiring him continue to further other I was pay, plus bills that to have an arrear- paying and about money living for my expenses.... own I against him. The rendered age judgment I offered that could a a hundred dollars woman, hand, on the other is satisfied agreed month for each child.... She it to 19,1982, except July decisions all of at that time.” requiring of her for an order denial in the fall This was of 1979. He then ap- Both pay attorney to the man fees.1 began only paying per $200 month. peal. living October the older child started Shortly
with the man. after this the man only paying commenced $100 month. I The woman confirmed that she and the assignment man’s first of error is support problem man discussed the child thus: the woman “waived framed began receiving that 1979 and after award the total child to enforce only shortly until a month after the $200 should be in ... Decree ... and [the] began father, oldest child live with his at enforcing provi- estopped from that only man which time the started sion. ...” acknowledged being a month. She $100 experi- aware of the financial difficulties by Factual conclusions offered man by largely enced the man at that time due (1) are: his conclusion having liquidate heavy jointly-in- acceptance the woman’s of “the [reduced] curred indebtedness. monthly payments, complaint without throughout years you agree him into with him ... lulled “Did that he could payments?” make month attempting inaction” with ob- $200 decree; (2) tain a modification of the asked. Bethell, interesting pro to note that nunc 2. Bethell v. 268 Ark.
1.
It is
an order
that at some
II
know, go by
agreed
what was
you
appears
There
to be no decision in
Steve,
say yes,
okay
upon....
I didn’t
it’s
precisely dealing
this state
first
with the
you always
do this. But
I had no
man,
by
though
high
issue raised
”
choice....
lately
court has
considered a related one
developed
helpful
prin
some
functional
told of a second
She also
conversation on
Robinson,
ciples in
subject in
the same
November or December
established,
It has been
“I had
him
1979.
told
that Richard [her
course,
unpaid
sup
court ordered child
going
at that time was
to share a
friend]
port
becomes
debt created
law and a
*4
that,
home with us. And that because of
action is
in
maintainable
court of
help
to
Steve
out because he did
[the man]
competent
jurisdiction to reduce such ar-
bills,
a lot of
I felt that it
not
take
was
[on]
Coryell,
Turk v.
rearage
judgment.
to
419
necessary
him
for
to continue
the
(Okla.1966).
P.2d 555
It has also been held
payment
year.
for
And
felt like
house
[I]
support
may
that a child
order
not be modi
might
some of the
be able
alleviate
Catlett,
Catlett v.
retrospectively.
fied
of,
know,
pressure
you
of his financial
Relief from a
problems at that time.”
can, however,
support
granted
order
be
forward,
point
you
“And so from that
parent
deny
non-custodial
if to
it would be
relieving
were
him of that
[$335 house]
inequitable according to McNeal. So the
payment?”
question
narrow
here is this: would it be
right,”
responded.
inequitable
require
pay
“That’s
the man to
arrearage sought by
pre
the woman
explained
working in
She
that she was
viously
right
waived her
to recover it
added,
obviously,
real estate and
“So
agreeing
accept
a lesser amount?
help
any way
wanted to
in
I could.” She
McNeal
appears
align
The thrust of
pay
“any
said
even undertook to
off
majority
jur
Oklahoma with a
of American
clothing charge
Any-
accounts that I had.
England
isdictions and
which observe
thing
myself.”
that I incurred
general
proceedings
in
rule that
to enforce
yet
The woman recalled
a third conversa-
support
an order for child
various defenses
young
tion about October 1981 when
Steve
laches,
obligor
are available to the
such as
went to live with his father. She said she
waiver,
estoppel,
acquiescence, release or
had not confronted the
man with
sub-
agreement. Headley Headley,
v.
277 Ala.
ject
resuming
payment
of
full
of the court-
Pence,
464,
Pence v.
(1964);
later
the amount of reduction
544
331
Sonenfeld
(1951);
Cote v.
rearage. And while she said she “would Mich.
49
60
N.W.2d
Cote,
(1947);
have assumed that he would have
94 N.H.
whether or as having the in one his custo sent, right to the waived indebted dy in as well as the one the woman’s custo ness she claims is due her. For now dy constitutes a “double burden” on him. Coryell, court said in Turk v. sup once a logically legally This stance is both and port payment delinquent becomes it be support obligation The man’s untenable. is, comes a debt evidenced the order and children. The trial court runs both had earlier, subject as we said to an action for awarding setting support in and discretion recovery competent in any jurisdict court of per- for the second child and we are not obligation having ion.3 The the status of suaded that its exercise was abused. debt, obligee’s recovery right of is defenses, subject therefore to various in IV cluding the statute of limitations. Streck Finally come to the we woman’s Wilkinson, er cross-appeal attacking the trial court’s fail (1976). post-judgment ure to sustain her motion to judgment her a for costs and attor award that she Here the woman conceded against ney fees the man and her entrance accept sup agreed to an amount for child 20, 1982, August of an order which “modi port less than what had ordered to be been 19, 1982, pro judg fied nunc tunc” paid by This had a the court. ment. long being ade do so as the children were of that to tax costs and the woman’s quately provided for. The effect Failure against man not attorney not of the fees an a modification of the trial court’s discretion. On court order a waiver of her remedial abuse but equities justify the trial court’s rights balance the of enforcement. majority, Reynolds Reynolds, the order 192 Okl. 3. Once the child attains his longer by contempt proceed- (1943). enforceable is no only remedy. ings and an action for debt is the party period of that each should his for time when the child conclusion custody, except ongoing in attorney fees and half the court had been his costs. own expenses child maintenance which mother Parenthetically, call we attention prove anticipation incurred in could of August in the 20 order. a misnomer child. It is a far continuing of the woman, complained by the Though of not leap proposition to the tenet that the man’s motion for a the order overrules estopped from recover- a mother should be also refers to what it calls a trial and new ing arrearage representing extrajudi- an an modification of the pro “nunc tunc” in ordered cial reduction father’s court A order. modification the order support payments to which she child is, not. The pro a nunc tunc it is indeed agreed. in grudgingly This variation pro to correct of a nunc tune order is office retrospective prohibiting rule an earlier imperfect memorialization of modification remove the matter from would accurately judgment or so that it court's decree and the absoluteness of the the order or that was reflects parental subject it to whims often based actually It cannot entered or rendered. be upon factors other than the best interest of n used modify judgment retro an order or extrajudicially the child. Enforcement of actively. Pettit v. Arkansas Louisiana modified likewise be Co., Gas stripped certainty of the court’s de- question replaced vagaries pa- in came and The modification cree assignment memory of error rental and This could as a result of an motivation. about timely certainly filed motion for to the detriment of the child set out the man’s work court, course, may represent trap had even a new trial. involved parent modify the order —12 O.S.1981 the the court does not power to §§ agree parties’ subsequently it was incorrect to that the reduc- 1031.1—but equitable. pro to it as a tunc act. tion or modification is believe refer nunc the dissent points very out the par- problem real that can arise where V *6 modify encouraged to a court’s ties are 19,1982, The order of is modified extrajudicially. orders $2,700 deleting judgment against Steve Kissinger. respects majority In all other G. likewise substitutes August 19 and are trial court. The orders of for that of the was faced a determination affirmed. lower court parties’ situation called for of whether for in McNeal. DeMIER, P.J., equitable provided relief as concurs. upon the The court found it did not. Based STUBBLEFIELD, J., dissents. evidence, I find no abuse of discretion STUBBLEFIELD, Judge, dissenting. ruling. Although the ma- respectfully I dissent. I affirm the trial court. away opinion carefully steers
jority accept- represents that it any indication retrospective modification of a ance of a
n order, exactly that is believe so, doing I think the it does.
what exception to the exceeds the
opinion far espoused in McNeal. McNeal
general rule equitable considerations
recognized that hard from the
might some variation allow decree. provisions of a divorce
and fast court in ruled that
Specifically the for child responsible
a father should not be