Arnold v. Joines , 50 Okla. 4 ( 1915 )

Opinion by

ROBBERTS, C.

This action was commenced in the district court of Carter county by U. S. Joines, defendant in error herein, for a breach of warranty of title to real estate, upon the following state of facts:

' One Clay Blackwell was the owner of certain real estate in the city of Ardmore. On the 26th day of February, 1909, J. M. Arnold, plaintiff in error herein, recovered a judgment against said Blackwell, upon an order of attachment issued out of said court. Service was had by publication. The order of attachment was levied upon the property described in the deeds involved herein, and sustained by the court, and judgment rendered for the amount claimed, with the further order directing the sale of the attached, property, which was accordingly done, the sale, confirmed, and deed issued by the sheriff to the purchaser, on the 14th day of April, 1909, who was J. M. Arnold, plaintiff in that case, and plaintiff in error herein.

On the 6th day of May, Arnold sold and conveyed said real estate by warranty deed to one J. A. Skipworth.

The habendum in said deed is as follows:

“And said J. M. Arnold for his heirs, executors, or administrators does hereby covenant, promise, and agree to. and with said party of the second part that at the delivery of these presents he is lawfully seised in his own right of an absolute and indefeasible estate of inheritance, in fee simple, of, in, and to all and singular the above granted and described premises, with the appurtenances; that the same are free, clear, discharged, and unincum-bered of and from all former grants, titles, charges, judgments, taxes, assessments, and incumbrances, of what nature and kind soever, and that he will warrant and forever defend the same unto said party of the first part, their heirs, and all and every person whomsoever lawfully claiming or so claim the same.”

On the 30th day of March, 1910, Skipworth sold and conveyed said property to U. S. Joines, the defendant in error herein, by warranty deed, in the same language used in the deed from Arnold to Skipworth, hereinabove set out.

On the 26th day of May, 1910, upon the motion of Blackwell, defendant in the first mentioned case, the court, set aside said judgment and all actions and proceedings therein, upon the ground that the judgment was void, for want of service. The order of the court in that behalf is as follows:

“order to set aside judgment.

“This day came on to be heard the motion of the defendant to set aside and vacate the judgment rendered against him in this cause, on the 6th day of February, 1909, because he had not been regularly served and had entered no appearance in this cause. That he had at all times been a resident of this state, which was known to the plaintiff, and because the property attached and sold was his homestead and was not described as the law requires in the summons by publication; and the court being fully advised in the premises, and after hearing the testimony and the argument of counsel, is of the opinion that said motion should be granted. It is therefore ordered, adjudged, and decreed by the. court that said judgment be and the same is hereby set aside and held for naught and void, and that all proceedings had thereunder are void, and that the sale made of lot No. 1 'in block No. 401 A, of the city of Ardmore, the attached property in said cause, was void and is hereby vacated and set aside; and that said cause be reinstated on the docket, for such proceedings as may hereafter be had by this court.”

After the order setting aside said judgment, Clay Blackwell, the original judgment debtor, threatened and was about to bring an action against U. S. Joines, the last grantee, defendant in error herein, to set aside his deed from Skipworth, and after due inquiry, and being fully informed of the facts, and being advised by an attorney of the effect of the order of the court setting aside and canceling the sheriff’s deed, the said U. S. Joines, defendant in error, surrendered his claim to said premises to the said Clay Blackwell, and conveyed the same to him by quitclaim deed, without consideration, and therefore demanded from the plaintiff in error, Arnold, the sum of $125, the amount paid by defendant in error to Skipworth for said property, after deducting the sum of $75, being the amount paid to him by Skip-worth, his immediate grantor, for and upon the breach of his said warranty. Payment was refused by plaintiff in error, and defendant in error brought suit to recover the sum of $125, being the amount of balance of the purchase price paid by him to Skipworth.

A demurrer to the petition was filed and overruled hv the court, to which exceptions were saved, and which will be considered hereafter. Thereupon defendant answered as follows:

“Comes now J. M. Arnold and for his answer to the Dlaintiff’s petition herein filed says:

“(1) He denies each and every allegation in the plaintiff’s petition.

“(2) He says that at the time he sold the property to. Skipworth, as stated in the plaintiff’s petition, the said Clay Blackwell was in possession of said property by and through his tenants, and that said Clay Blackwell yielded possession to the said Skipworth, who went into the possession of said property and held same until he voluntarily surrendered same to Clay Blackwell; that the order made by the court setting aside the judgment did not in any way affect the title of plaintiff, who was then the owner of, and in possession of, said property, and that said order was an interlocutory order, and those things which it recited were not necessary to be recited therein, and were not binding on the plaintiff and are not binding on this defendant.

“(3) That the plaintiff recovered a judgment against the said Clay Blackwell foreclosing his attachment, and that the sheriff, under an order of said court issued, duly advertised said property for sale, that the defendant purchased said property at a sheriff’s sale. That said sale was duly confirmed by the court, and that thereafter said property was sold by the defendant to J. A. Skipworth and by Skipworth to Joines, as stated in plaintiff’s petition. That both Skipworth and Joines were innocent purchasers of said lot. That they were not parties to the suit of J. ' M. Arnold against Clay Blackwell and knew nothing of the defects of said judgment, if any existed. That at the time said judgment was vacated, as stated in said order, the plaintiff was the owner of, and in possession of, the property mentioned in plaintiff’s petition.”

The case was tried to a jury, and after the introduction of the evidence, upon the motion of the plaintiff below, the court instructed the jury to return a verdict for the plaintiff, which was accordingly done, and judgment rendered thereon.for $125, with interest and costs, to all of which exception's were duly saved.

The case is here on appeal, and to reverse which the plaintiff in error contends for the following specifications of error:

“(1) The action of the court in overruling the defendant’s demurrer.

“(2) The action of the court in overruling the defendant’s objection to the introduction of testimony in this ease.

“(3) The action of the court in admitting certain evidence over the objection and exception of the defendant, as heretofore stated.

“(4) The action of the court in overruling the defendant’s motion to instruct the jury to return a verdict for the defendant.

“(5) The action of the court in sustaining the plaintiff’s motion to instruct the jury to return a verdict for the plaintiff.

“(6) The action of the court in instructing the jury to return a verdict for the plaintiff.

“(7) The action of the court in overruling the defendant’s motion for a new trial.”

The real question to be determined is: Was there a breach or failure of warranty of title? And,' if so, does the covenant of warranty, as expressed in the deed, run with the land to such extent as to give the defendant in error, as assignee of the original grantee, a direct cause of action against the plaintiff in error to recover his damages because of said breach? The trial court answered these questions in the affirmative, and we think correctly.

The first error complained of is the overruling of defendant’s demurrer to plaintiff’s petition. That raises practically every question there is in the case, for the reason that there is no material disagreement as to the facts involved, and therefore we will not take up the-demurrer separately, but will dispose of the legal questions as they are hereafter presented, and that will dispose of the demurrer.

The second and third specifications will not be considered, because counsel do not comply with rule 25 (38 Okla. x, 137 Pac. xi) of this court, by “pointing out the particular testimony to the admission or rejection of which they object, stating specifically the objections thereto.”

The fourth, fifth, sixth and seventh specifications-raise the same questions, and practically the same questions raised by the demurrer to the petition, all of which will be considered together.

The contention of counsel for plaintiff in error that:

“The court erred in admitting in evidence the order of the court setting aside the judgment in the case of Arnold v. Clay Blackwell, on the ground that the action of the court was only an interlocutory order”

—cannot be sustained, for the reason that the judgment, and all proceedings thereunder, were absolutely void, whether set aside by the court or not. The order of the-court setting aside the judgment was based upon the fact that service of summons on defendant, Clay Blackwell, was attempted to be made by publication, and said defendant has at all times been a resident of the state, and at the time of service by publication was residing upon and occupying the attached property as a homestead, which fact was well known to the plaintiff, and for the further reason that the property attached was-not described in the notice as required by law. All these-facts are set out in the journal entry as grounds for setting aside the judgment, and will be taken as true.. Undoubtedly the court was proceeding under section 5274, Rev. Laws 1910, which provides:' “A void judgment may be vacated at any time.” Phoenix Bridge Co. v. Street, 9 Okla. 422, 60 Pac. 221; Anglea v. McMaster, 17 Okla. 501, 87 Pac. 660.

This court, in passing upon a judgment obtained by service in like manner, says:

“Where a party seeks to bring a defendant into court by service by publication under the Code, he must strictly comply with the requirements of the statute, and,' unless this be done, the judgment will be vacated and set aside for want of jurisdiction of the person of the defendant. It must follow that, where the service is absolutely void, every subsequent proceeding, including the judgment, the order of sale, the confirmation of the sale, and the sheriff’s deed, must necessarily be void.” (Romig v. Gillett, 10 Okla. 193, 62 Pac. 807.)

The Supreme Court of Kansas, in passing upon the same statute, used the following language:

“In an action to foreclose a mortgage on real estate, service may be made upon' the defendant not residing within the state, by publication; but, before such service can be made, an affidavit must be filed showing that service cannot be made personally on the defendant within the state. And where a service by publication has been made, in such a case, without said affidavit being first filed, the service is void; and every subsequent proceeding in the case founded on such service, including the judgment, the execution or order of sale, the sale, and the sheriff’s deed must also * * * be void.” (Shields v. Miller, 9 Kan. 390.)

The authorities cited by plaintiff in error, in support of his contention upon this question, are not in point, for the reason that, in the cases cited by him, the court had. jurisdiction of the parties and the subject-matter, and the judgments in those cases were not void, but merely voidable, and they were simply set aside by the court for the. purpose of allowing the parties to defend. In the cases of Moody v. Freeman, 24 Okla. 701, 104 Pac. 30, and List v. Jockheck, 45 Kan. 349, 748, 27 Pac. 184, cited and relied on by counsel the judgments were simply voidable, and were opened up for the purpose of permitting a defense, which clearly distinguishes them from the case at bar.

Of course, the object in introducing this journal entry was to show that the original judgment, upon which the sheriff's deed to plaintiff in error was based, was a void judgment, and the sheriff’s deed thereby void, and that fact is clearly established by the judgment roll. The case of North v. Moore, 8 Kan. 143, cited by counsel for defendant in error, is more nearly in point and sustains the contention of counsel. In that case the court says:

“James C. C. Moore was the original owner of the lot. On the 5th of September, 1863, the district court of Leavenworth county made a decretal order for a conveyance of the lot in controversy to certain parties plaintiffs in the suit against said James C. C. Moore. On the 7th of May, 1866, this judgment was declared to be ‘null and void,’ and of no effect whatever, for want of jurisdiction of the person of James C. C. Moore. Between the time of rendering these judgments, Maria J. North, one of the plaintiffs in error,, became the purchaser of the lot from persons who held under the first judgment. The court below, to reach its conclusions, must have held that the persons in whose favor the judgment of September, 1863, was rendered, took nothing thereby. This we supposed to be the law. The judgment was held void, not voidable. It was so held, not in a collateral proceeding, but in a direct proceeding to have the judgment set aside. It is then relieved from those * * * considerations which have perplexed courts as to what effect should be given * * * judgments when they stood unreversed and apparently binding. The question is also freed from any .possibility of pretending that it was only voidable. It is •declared void on evidence not preserved, and not before us. We know of no case where a void judgment is held to support a title.”

In such cases as this, it is important to always keep .in mind the distinction between a void and voidable judgment. A void judgment is, in legal effect, no judgment at all. By it no rights are divested; „ from it no rights ■can be obtained. Being worthless in itself, all proceedings founded upon it are necessarily equally worthless, and have no effect whatever upon the parties or matters .in question. A void judgment neither binds nor bars .any ■one. All acts performed under it, and all claims flowing out of it, are absolutely void. The parties attempting to ■enforce it are trespassers. A purchaser at a sale under a void judgment finds himself without title and without redress. Such was the condition of the plaintiff in error .in this case. He had no title whatever under the sheriff’s ■deed, not even a semblance of legal title, and his deed attempting to convey the property, so far as it effects a transfer of the title, was a nullity — a blank. Under such •conditions, it was not error to admit the judgment roll ¡setting aside the judgment, but it would have been reversible error to have ruled it out, for the good reason that it establishes the fact that the sheriff’s deed to plaintiff in error was absolutely void.

The action of the court in setting aside the judg-. ■ment, sale, and sheriff’s deed is also binding upon the •defendant in error, for the reason that he was in privity of estate with the plaintiff in error in that case. The rule in such cases is stated in volume 24, Enc. Law, p. 746, as follows:

“The term ‘privity’ denotes mutual or successive relationship to the same rights or property. The ground, therefore, upon which persons standing in this relation to the litigating party are bound by the proceedings to which he was a party, is that they are identified with him in interest; and, whenever this identity is found to exist, all are alike concluded.”

24 Enc. Law, p. 748, states:

“A purchaser at a judicial sale, or one to whom a deed of property has been made under the authority of, ©r in obedience to, the decree of a court of equity, and all persons claiming under him, are in privity of estate to the judgment or decree under'which the sale or deed was made, and are concluded thereby; and all persons who were parties to the suit in which the judgment or decree was rendered • are precluded from questioning their title. But persons not parties to such suit, and not claiming under persons who were parties, are not precluded from questioning such title.”

23 Cyc. 1258, states:

“Purchasers of property at a judicial sale thereof, and all persons claiming under purchasers at a judicial sale, are to be recognized as privies to the judgment authorizing the sale, and therefore all such persons are concluded by the judgment.”

The theory of counsel for plaintiff in error that the covenants of warranty of title, as expressed in the deeds, do not run with the land, is untenable. The. convenants in the deed are that:

“At the delivery of said deed the -grantor is lawfully seised in his own right of an absolute estate in fee simple of, in, and to said premises; that the same are free, clear, and discharged of and from all former grants, titles, and charges of whatever nature and kind soever; and that he will warrant and forever defend the same unto said party of the second part (grantee), his heirs and assigns, against said party of the first part (grantor) and all and every person whomsoever lawfully claiming' or so claim the same.”

That is an absolute warranty of title to the grantee and his assigns — a substantial copy of the “warranty deed” form prescribed by the statutes of this state, which has a statutory construction in section 1162, Rev. Laws 1910, as follows:

“A warranty deed made in substantia] compliance with the provisions of this act, shall convey to the grantee, his heirs or assigns, the whole interest of the grantor in the premises described, and shall be deemed a covenant on the part of the grantor that at the time of making the deed he is legally seised of an indefeasible estate in fee simple of the premises and has good right and full power to convey the same; that the same is-clear of all incum-brances and liens, and that he warrants to the grantee, his heirs and assigns, the quiet and peaceable possession thereof, and will defend the title thereto against all persons who may lawfully claim the same; and the covenants and warranty shall be obligatory and binding upon any such grantor, his heirs and personal representatives, as if written at length in such deed.”

Our own Supreme Court, by Justice Sharp, in an able and comprehensive opinion in Faller v. Davis, 30 Okla. 56, 118 Pac. 382, Ann. Cas. 1913B, 1181, and also in Brady v. Bank of Commerce, 41 Okla. 473, 138 Pac. 1020, has taken the broad and sensible view of the law of covenants and cleared away, to a large extent, the mysteries that have for years hung around the uncertainties of the various covenants of warranty, and declared that:

“Covenants of ‘seisin’ and ‘good right to convey’ are synqnymous, and, if broken at all, are broken when made, and an actual eviction is unnecessary to consummate the breach.”

And that:

“In an action for breach of the' covenants of seisin and good right to convey, an eviction need not be alleged; but it is sufficient in charging a breach to negative the words of the covenant generally.”

Certainly a most sensible, wholesome, and refreshing doctrine, after groping about among the dusty old “myths” of uncertain and incomprehensible covenants. Counsel for plaintiff in error was simply following some of the old mysterious and hazy theories, concerning which there is a very great variety of opinions as to the different kinds of covenants, and as to whether they run with the land or are simply personal; but these old troublesome questions are swept away by the statutes and decisions above referred to, and the covenant of general warranty provided for by the laws in this state binds the grantor to warrant and forever defend the title to the grantee, his heirs and assigns, and by this is meant a covenant which accompanies a conveyance of the land and passes from one purchaser to another through each successive link of the chain of title.

The language in the deed is plain, the statutory construction (section 1162) is plain; and the opinion of Justice Sharp is a full and fair exposition of the law on that subject, and places the stamp of disapproval upon the contention of plaintiff in error that the covenants of warranty embodied in the deeds’ involved in this case do not run with the land, and clearly settles the law in this state, to the effect that, under a warranty deed made in substantial compliance with the statutes, the covenants of warranty of title run with the land, and are broken, if at all, when the deed is delivered, and that an action will lie without actual' eviction. Such, in effect, was the holding of the trial court in this case, and therein there was no error.

Plaintiff, in error also insists that the sheriff’s deed was valid notwithstanding the fact that the judgment on which it was based is void; and this insistence is based on section 5176, Rev. Laws 1910, which is as follows:

“If any judgment or judgments, in satisfaction of which any lands or tenements are sold, shall at any time thereafter be reversed, such reversal shall not defeat or affect the title of the purchaser or purchasers; but in such cases, restitution shall be made, by the judgment creditors, of the money, for which such lands or tenements were sold, with lawful interest from the day of sale.”

It would hardly seem necessary to further discuss that proposition after what has heretofore been said as to the nullity of the sheriff’s deed, issued under an absolutely void judgment, and that would be the holding of this court without authority; but we are not held to that course, for it has been fully settled that the section referred to has no application in this case. In passing upon this same statute, the Supreme Court of Kansas says:

“This section has application solely to bona fide purchasers, who are not parties to the erroneous judgment, nor responsible therefor, and who do not have reason to believe that' such erroneous judgment will be reversed or vacated by the appellate court. * * * It applies only to strangers to the judgment, who have purchased under the honest belief that the judgment is sufficient. It would not be in' consonance with justice or equity to allow a party who had procured an erroneous judgment, and who had procured property thereunder, to retain the fruits of such judgment after it had been set aside and annulled by the superior court.” (Hubbard v. Ogden, 22 Kan. 671.)

The Supreme Courts of Ohio and Iowa are to the same effect. Hubbell v. Broadwell, 8 Ohio, 120; Twogood v. Franklin, 27 Iowa, 239.

The claim that the giving of notice to the defendant, plaintiff in error*, was a condition precedent to maintaining this suit, cannot be sustained, for the reason that he was a party to the suit in which the judgment was set aside, and had full knowledge of all the transactions in connection with the case. Under such circumstances, it would be a useless and entirely unnecessary act, which no man is required to perform to maintain his rights. The measure of damages upon breach of warranty of title, in this case, is the consideration paid for the land, with lawful interest, less any payments that may have been made thereon to the grantee. Dale v. Shively, 8 Kan. 281.

We recommend that the judgment' of the court below be affirmed.