Group v. Jones , 44 Okla. 344 ( 1914 )

This suit was filed August 1, 1911, to recover judgment for the restitution of lots 13 and 14 in block 36, Oklahoma City, Okla. On January 5, 1895, the plaintiff, Group, was the owner and in possession of the lots involved here, and on that date he and his wife joined in a mortgage of the same to a man by the name of Wills. The mortgage indebtedness was not paid, and suit in foreclosure was instituted in 1896, which resulted in a judgment of foreclosure dated January 2, 1897. An order of sale was thereafter issued, and the property was sold by the sheriff March 16, 1897, and the order of sale was returned and filed March 27, 1897. On June 7, 1897, an order was made and entertained by the court confirming the sale, and on the same date the sheriff executed and delivered to H. Overholser his deed for the lots. This deed was placed on record on August 11, 1897. Thereafter Henry Overholser conveyed to L. Overholser and Newton Avey, and thereafter Overholser and Avey conveyed to the present defendant, E. M. Jones.

The mortgage which was foreclosed on these lots did not contain a "waiver of appraisement," but, after the judgment was entered in the foreclosure, the defendants executed a separate instrument in writing, in which they waived an appraisement of the lots and formally and specifically consented to their sale under an execution issued that day or the next to enforce the judgment.

The defendant filed a demurrer to the petition in this case, which was sustained by the court, on the theory that the petition showed on its face that plaintiff's cause of action, if any, had been long since barred by the statutes of limitations. The action of the court in sustaining the demurrer to the petition is the sole question involved in this appeal. Section 4655, Rev. Laws 1910, is as follows:

"Actions for the recovery of real property, or for the determination of any adverse right or interest therein, can only be brought within the periods hereinafter prescribed, after the cause of action shall have accrued, and at no time thereafter: First. An action for the recovery of real property sold on execution, brought by the execution debtor, his heirs, or any person claiming under him, by title acquired after the date of the judgment, within five years after the date of the recording of the deed made in pursuance of the sale."

It will appear from reading the statute that the court was correct in sustaining the demurrer in this case. The plaintiff insists that notwithstanding the statute seems to preclude his recovery, yet the sale and the confirmation thereof are void, in that there was no consideration for the waiver of appraisement in the separate instrument in which this was done; and that, if the waiver of appraisement is held to be valid, then sufficient time had not elapsed at the time of the confirmation. We do not think it is necessary to enter into a discussion of these points, although it could probably be demonstrated, on authority, that the written consent to the sale in the manner performed filed as a paper in the case after judgment, presumably for the benefit of all parties, would have the effect of curing the irregularities in the proceedings; but, be this as it may, and we decline to decide the point, assuming that the sale and the deed thereunder were void, under the authority of Dodson v.Middleton, 38 Okla. 763, 135 P. 368, the statute bar would attach. The Dodson case, supra, is a case involving the second subdivision of the statute as quoted above, and which provides a five-year limitation against heirs and devises of deceased persons, or wards or their guardians, in actions for the recovery of real property sold by executors, administrators, or guardians, etc. In that case the court, without deciding, assumed that the guardian sale was void, but held that, inasmuch as the wards failed to bring their action within five years or within two years after their disabilities were removed, they were barred from so doing by the statute of limitations. The syllabus in the case is as follows:

"Where the grantee went into possession of real estate immediately after the purchase thereof by him at a void guardian's sale, and such grantee and those claiming under him remain continuously in possession thereof thereafter, and where the action to recover said real estate is not brought by the minor or his guardian within five years after the recording of the deed, nor by the minor within two years after his legal disability is removed, an action by such minor for the recovery of said property is barred by sections 5547-5549 Comp. Laws 1909; Rev. Laws 1910, secs. 4654-4656."

That case is directly in point here and controls the decision of the case at bar. We may add, however, that this statute, which came to us from the state of Kansas, has been construed in an opinion by Mr. Justice Brewer in Cheesebrough et al. v.Parker, 25 Kan. 566, wherein it is said in the syllabus:

"Under execution issued out of the probate court under section 191, c. 91, Comp. Laws 1862, the property in controversy was levied upon and sold. Sale was confirmed; deed made July 30, 1869, and recorded September 4, 1869. This action was commenced September 10, 1878, by the execution debtor and one claiming by deed from her subsequent to the sheriff's sale and deed.Held, that clause 1, sec. 16, c. 80, Comp. Laws 1879, was applicable, and this statute of limitations a bar to the action."

In this case the sheriff's deed to the property sold under execution was recorded August 11, 1897. The judgment debtor waited nearly fourteen years before filing the suit, alleging the property to be now worth $30,000, and the rents or use of the property by defendant several thousand dollars. This is just the kind of a suit the statute was enacted to prevent.

The judgment of the trial court is affirmed.

ON REHEARING.