Porch v. Hayes

1950 OK 310, 236 P.2d 240, 205 Okla. 194, 1950 Okla. LEXIS 594

• Court: Supreme Court of Oklahoma
• Decided: December 12, 1950
• Docket: 33874
• Status: Published

Opinions

HALLEY, J.

On April 11, 1925, Kathrine S. Porch and J. L. Porch gave a mortgage on certain lands in Cleveland county to secure a note for $4,000 in favor of the Commissioners of the Land Office of the State of Oklahoma. The note became delinquent. On June 6, 1940, the Commissioners of the Land Office filed suit to foreclose the mortgage in case No. 13784, district court of Cleveland county. J. L. Porch, S. G. Porch, and Nina Isabel Porch, along with others, were made defendants. On March 3, 1941, judgment was- taken against J. L. Porch for $4,623.95, with interest and attorney’s fee. The decree showed that personal service was had on all defendants except S. G. Porch and Nina Isabel Porch, who were served by publication notice. It foreclosed any interest that any defendant might have in the property.

Kathrine S. Porch had died before this suit was filed. She and J. L. Porch had previously conveyed the land covered by the mortgage to S. G. Porch. As the mortgage waived appraisement, the defendants had six months to pay off the judgment before an order of sale would issue. Nothing was paid, so on January 21, 1942, under proper proceedings, the land was offered for sale at sheriff’s sale and the plaintiff bid the property in at $4,000. On April 13, 1942, the plaintiffs in that case assigned their bid to G. R. Hayes for $4,000 and all costs of the action, reserving to the State of Oklahoma the amount of the deficiency judgment of $623.95 with interest at 10 per cent.

Thereafter, on the 23rd day of April, 1942, on proper motion, the court confirmed the sale to G. R. Hayes, thereby approving the aforesaid assignment; and sheriff’s deed was duly issued to the purchaser, the said G. R. Hayes.

On June 7, 1948, S. G. Porch and Nina Isabel Porch filed a separate action to set aside execution sale and deed in the foreclosure case and for a writ of mandamus to require the Commissioners of the Land Office to take the necessary steps to set aside the sheriff’s deed in case No. 13784, district court of Cleveland county, and for other relief. An alternative writ of mandamus was issued against the Commissioners of the Land Office, its secretary and attorney. On the hearing of the same the court sustained a demurrer to the plaintiffs’ evidence and entered judgment for the defendants, from which judgment the plaintiffs have appealed.

There are two propositions urged for reversal, which are:

“1. The sale of the property has never been completed and the title to the land is still in the State of Oklahoma.

“2. This is a proceeding in mandamus directed to the Commissioners of the Land Office, the delegated authority for managing and preserving the School Funds and lands to undo any unlawful and illegal act performed by that Commission in the sale of land without authority of law and against the legislated rules and regulations prescribed as inhibitions. It is a challenge to the right and authority of the Commissioners of the Land Office, a created entity, to act as individuals regardless of such delegated authority and inhibitions without restraint.”

These propositions are argued together. Under State ex rel. Commissioners of Land Office v. Schneider et ux., 198 Okla. 697, 181 P. 2d 975, title to the land here in question was never vested in the Commissioners of the Land Office, and for that reason the requirement that 40 per cent of the mineral rights in lands sold by the Commissioners should be retained to the state does not apply.

No authority is cited in which the right to assign a bid at foreclosure sale is challenged. The bid of the state at the foreclosure sale was the highest if not the only bid made. No one was on hand to pay more than the state bid. There is no duty on the commissioners to take title in every case in which they have sought foreclosure. They can let the land go to the highest bidder other than the state if they choose to do so.

The plaintiffs in this case are seeking extraordinary relief. They are asking that the Commissioners of the Land Office be made to renege on a transaction wherein no fraud is proved, and to set aside a sale made more than five years prior to the filing of the mandamus action. To do this they must have a clear legal right, which we believe does not exist under the facts of this case. We have said many times that a writ of mandamus will not be awarded unless the relief sought is clear and free from doubt. Jones v. Sneed, Sec’y. of State, 101 Okla. 295, 225 P. 700.

The Commissioners of the Land Office have certain discretionary powers. They had the duty to decide whether the state should get its money out of the mortgaged premises immediately or whether the state should take title to the property and sell it later. In Champlin v. Carter, 78 Okla. 300, 190 P. 679, we would not grant a writ of mandamus to control the discretion of an executive officer in the discharge of those duties which involved the exercise of his judgment and discretion in the construction of the law or in determining the effect of the facts. We do not think a writ should have been granted here.

The action of the trial court is affirmed.

DAVISON, C.J., and CORN, LUT-TRELL, JOHNSON, and O’NEAL, JJ., concur. ARNOLD, V.C.J., and GIBSON, J., dissent.