Fulton v. Teeter

1926 OK 631, 248 P. 584, 121 Okla. 154, 1926 Okla. LEXIS 82

• Court: Supreme Court of Oklahoma
• Decided: July 20, 1926
• Docket: 16912
• Status: Published

Opinion

PHELPS, J.

The Conservative Loan & Trust Company was a corporation engaged in making real estate loans. R. L. Phillips was agent for the loan company at Pauls Valley. The defendants in error went to Phillips and made application for a loan of $900. Phillips turned the abstract of title, together with the executed mortgage, over to the Stone Abstract Company, which went to the treasurer’s office, paid the mortgage registration tax amounting to 90 cents, receiving a receipt therefor, such receipt .re citing that the mortgage registration tax was paid by the Conservative Loan & Trust Coin-pany. The mortgage was placed of record and the abstract brought down to date. The mortgage company thea sold and assigned the mortgage to S. A. Fulto'n of Des Moines, Iowa.

It is alleged that the proceeds of the loan were never paid to the mortgwgors. The loan company had fiujancial difficulties and was placed in the hands of receivers; the morcgagors, who are defendants in error herein, then brought suit in the district court of Garvin county against the receivers of the loan company to cancel the mortgage for failure of consideration. The mortgage company, through the receivers, filed its disclaimer, alleging that it had no interest in the subject-matter, having sold, assigned, and delivered the note ond mortgage to S. A. Fnlton, who appears here as plaintiff in error. Fnlton was made a party to the act:on and pleaded that he was an innocent purchaser for value. It appears that the abstract company charged the expenses of the abstract, recordation of the mortgage, and (he mortgage registration tax to `Phillips, and the loan company never did pay eitner Phillips or the abstract company the auzuout charged for that service, totaling $16.90.

After suit for cancellation of the mortgage was filed, it appears that Phillips had become the agent of mortgagore for the put-' pose of collecting some rentals, and had in his hands funds belonging to the mortgagors; the account due the abstract company not having - been paid in full, Phillips paid the balance due thereon and •deducted the amount thereof from the funds in his hands belonging to the mortgagors. The mortgagors then filed their amended petition ito court alleging as grounds for cancellation, failure of consideration, and also that the tax was not paid by the mortgagee as provided by section 9588, Comp. Stats. 1921.

The cause was tried to the court withont a jury, upon the sole question as to whether the mortgage was void because the mortgage registuation tax was not paid by the mortgagee. which trial resulted in a finding if the court that the moTtga'ge was void and judgment was rendered canceling the sanu, to reverse which this appeal is prosec~ited;

The sole question presented by this appeal is, whether the court committed error n rendering judgment for the plaintiff. We have carefully read all the evidence in the record pertaining to the payment of the mortgage registration tax, and have no difficulty in arriving at the conclusion that there is no evidence u~on which to base the judgment of the trial court. Phillips was agent for the loan company and it was by his order that the abstract was brought clown to date, and the m1ortgage placed of record, an~1 as a prerequisite to the recorcation of the mortgage it was necessary to pay the mortgage registratL~n tax. The fees for these three items were by the abstract com-pa~y charged to Phillips, agent for the mortgage company. After the suit to cancel the mortgage was filed and after the af fairs Of the mortgage company were taken over by receivers appointed by the court, and Phillips had become agent for the mortgagors and had funds in his hands belonging to them, he voluntarily reimbursed the abstract company from such funds, and more than a year thereafter the amended petition was filed setting up such payment as a ground for cancellation. This court has many times held that, where questions of fact are submitted, to the trial court, the findings of the trial court will not be disturbed if there is any competent evidence reasonably tending~ to support the same; but the rule is just as well settled that, if there is no competent evidence to support the judgment of the trial court, such judg-~ ment will be reversed on appeal. Crosbie v. National Bank of Commerce, 86 Okla. 174, 207 Pac. 311.

The judgment is therefore reversed and remanded, with directions to the trial court to render judgment for the defendants.

BRANSON, V. C. J., and MASON, HARRISON, LESTER, HUNT. CLARK, and RILEY, JJ., concur.