Cherry v. Godard , 179 Okla. 158 ( 1936 )

I concur in the result, but it seems to me that the real question is not answered by the majority opinion.

The question presented is whether waiver of appraisement in a promissory note dispenses with the appraisement of land sold under execution in an attachment proceeding.

On November 23, 1917, the land in question had been set apart to Odia C. Godard and the minor children of her deceased husband by the county court of Lincoln county as a homestead for the use of the family. The widow, after the death of her husband, never lived on said premises, but remarried a man by the name of Butler in 1919. She and her second husband lived at various places and for a while in Arizona. Later they returned to Oklahoma.

J.W. Cherry, under a contract, furnished to Mrs. Godard, after her marriage to Butler, certain building materials for the construction of a house on said land, and on January 2, 1923, Mrs. Godard, then Mrs. Butler, executed a note in the sum of $281.25 to Cherry for the materials which had been furnished. Note is as follows:

"$281.25 Warwick, Okla. Jan. 2, 1923

"On or before Oct. 1 after date I promise to pay J.W. Cherry or order at his office in Warwick, Oklahoma, the sum of Two Hundred Eighty-One and 25/100 Dollars for value received, with interest at 10 per cent. per annum from date. This note is given for materials furnished by J.W. Cherry, to Mrs. Odia Butler under contract to be used and which was used in the construction of dwelling house a certain dwelling house situated on the premises now owned by Mrs. Odia Butler and occupied by Ed. Danker.

"The makers and endorsers of this note hereby severally waive presentment for payment, notice of nonpayment, protest and notice of protest and all exemptions that may be allowed by law, and valuation and appraisement laws waived and each signer and endorser makes the other an agent to extend the time of this note, and if this note be placed in the hands of an attorney, I, we or either of us, agree to pay reasonable attorney's fee and all other costs of collection.

"Odia Butler.

"P.O. Welston, R.F.D. 5 Okla.

"E 1/2 S.E. 1/4 Sec. 31, Twp. 14 Rawle 3."

It is to be observed that this note specifically states that it is given for material furnished by Cherry to Mrs. Butler under contract which was used in the construction of a dwelling house situated on the premises then owned by Mrs. Odia Butler and occupied by Ed. Danker. The note, after the signature of Odia Butler, gives a description of the land in question. The note contained a waiver of "valuation and appraisement laws."

Cherry, on December 28, 1925, filed a suit and levied an attachment on the land in question, obtaining service by publication on Mrs. Butler. Mrs. Butler filed a motion to dismiss the attachment, and thereafter an answer which presented the issue of whether the land claimed as a homestead was subject to levy by attachment. The court sustained the order of attachment which had been issued and levied upon said land and then ordered that the land so attached should be sold after six months without appraisement. There was no appeal from that judgment. Execution followed; the land was advertised and sold; and the sale was confirmed by the court. A sheriff's deed was duly executed and delivered to J.W. Cherry.

Thereafter, the present action was instituted by Mrs. Butler and a minor son for possession of the premises in question, damages and accounting. This action challenged the validity of the sheriff's deed.

The real question for determination is whether the sheriff's deed is void because the land was sold without appraisement by reason of the provision in the aforesaid note in reference to waiver of appraisement.

This court has not passed upon this specific question, and this question should not be confused with those cases holding that where no appraisement was had after judgment on execution the sale was void. See Given v. Owen, 73 Okla. 146, 175 P. 345; Cuff v. Koslosky, 165 Okla. 135, 25 P.2d 290.

In the case at bar appraisement was waived specifically in the note.

Section 451, O. S. 1931, applies in the instant case because the judgment which was taken was based upon "notes" or "written contract" containing the words "appraisement waived." This section is as follows:

"If the words 'appraisement waived,' or other words of similar import, shall be inserted in any deed, mortgages, bonds, notes, bill or written contract, any court rendering judgment thereon shall order as part of the judgment that the same, and any process issued thereon, shall be enforced, and that lands and tenements may be sold thereunder without appraisement; and such judgment, and any process issued thereon, shall be enforced, and sale of land and tenements made thereunder, without any appraisement or valuation being made of the property to be sold: Provided, that no order of sale or execution shall be issued upon such judgment until the expiration of six months from the time of the rendition of said judgment."

It appears that this section of the statute was adopted from the 'Statutes of Kansas as early as 1893, and was repealed by Kansas in 1901, and it is probably due to the early repeal of the statute by Kansas that we find no decisions from that state on this question.

The Indiana statute dealing with this question was adopted by that state in 1861 (Acts 1861, chap. 75) and is as follows:

"Upon any instrument of writing made within this state or elsewhere containing a promise to pay money, without relief from valuation laws, judgment shall be rendered and execution had accordingly."

In 23 C. J. 459, sec. 266, the general rule is announced that no appraisement of real estate sold under execution is necessary in the absence of statute requiring it.

The same text, 23 C. J. 460, sec. 269, upon the question that waiver may be expressed in writing evidencing the debt, announces the following rule:

"(Sec. 269) d. Waiver. As a general rule, the judgment debtor, for whose benefit appraisement clauses are included in statutes prescribing the mode of execution, may at his option legally waive the right of having his property appraised before sale under the execution, although there is authority to the contrary. * * *

"How evidenced. The judgment debtor's exercise of the waiver of his right to have his property appraised may be evidenced by his expressly authorizing it in writing, and it is frequently incorporated in the contract by which the debt on which the judgment is based is created, or constructively by his acquiescence in the sale of the property by the officer, of which he has full notice, the later on the ground of estoppel."

In support of that rule the following cases are cited: Baker v. Roberts, 14 Ind. 552; Vesey v. Reynolds, 14 Ind. 444; Smith v. Doggett, 14 Ind. 442; Deam v. Morrison, 10 Ind. 367; Kostenbader v. Spotts, 80 Pa. 430; Hageman v. Salisberry,74 Pa. 280; Kimball v. Kelsey, 1 Pa. 183; Overton v. Tozer, 7 Watts (Pa.) 331; Carr v. Wright, 19 Wkly N.C. (Pa.) 576 (judgment on judgment note waiving appraisement); Cole v. Schumacher, 1 Lack. Leg. Rec. (Pa.) 497. See, also, Levy v. Spitz (Pa.) 146 A. 548.

We have no statute prohibiting the waiver of valuation and appraisement laws. Debtors may renounce and waive the benefit of appraisement. See Kleber's Void Judicial and Execution Sales, section 334, at page 303. That text cites the following cases:

"Desplate v. St. Martin, 17 La. Ann. 91; Insurance Co. v. Bagley, 19 La. Ann. 89; Overton v. Tozer, 7 Watts, 331; Stockwell v. Byrne, 22 Ind. 6; Dean v. Morrison, 10 Ind. 367; Smith v. Doggett, 14 Ind. 442; Baker v. Roberts, 14 Ind. 552; Stockmeyer v. Tobin, 139 U.S. 176, 11 Sup. Ct. Rep. 504."

Freeman on Executions (3rd Ed.) 2nd vol., sec. 284, on page 1636, states that the appraisement laws were intended for the protection of the debtors and that they may be waived by those for whose benefit they were enacted. Freeman cites the same cases in support of this proposition as Kleber. See, also, Davis v. Bond, 14 Ind. 7; Smith v. Rowe, 14 Ind. 442; Broadwell v. Rodri gues, 18 La. Ann. 68. In the case of Smith v. Rowe, supra, an action was instituted upon promissory notes waiving the benefit of valuation and appraisement laws, and the only question considered was the constitutionality of the statutes authorizing the rendition of judgments to be collected without appraisement upon promissory notes waiving such appraisement. In that case the court upheld the constitutionality of the statute authorizing the practice of entering and enforcing the collection of judgments without valuation or appraisement. See, also, Vesey v. Reynolds, 14 Ind. 444.

In the case of Howe v. Dibble, 45 Ind. 120, the court considered a sale without valuation under a mortgage foreclosure. The notes secured by the mortgage contained a stipulation that they should be collectible without relief from valuation laws, but the mortgage contained no such provision. In that case the court held that the stipulation in the notes must be carried into the mortgage by the judgment and that the property should be sold without appraisement.

The Supreme court of Indiana, in Reily v. Burton,71 Ind. 118, considered the act concerning promissory notes (Acts 1861, page 145, 1 Rev. St. 1876, page 636). Section 15 provided that, when any instrument of writing made within the state or elsewhere contained a promise to pay money without relief from valuation or appraisement laws, judgment should be rendered and execution had thereon accordingly. In that case a note was given for a sum of money and the benefit of the valuation and appraisement laws was waived therein, as also in a mortgage given to secure the payment of the note. The court held that the plaintiff succeeding in the action on the note and for foreclosure of the mortgage was entitled to judgment to be executed without relief from valuation or appraisement, and execution should have been had thereon accordingly.

Defendants in error place reliance on the case of Levicks, Barrett Kuen v. Walker, 15 La. Ann. 245, 77 Am. Dec. 187, opinion rendered in May, 1860, in support of the theory that the validity of a waiver of appraisement when inserted in an ordinary note is one which will not be enforced by the courts.

In that case the Supreme Court of Louisiana said:

"We think the stipulation in a contract, that the property of the debtor shall be sold without appraisement in the event of nonpayment at maturity, one of those pacts which ought not to be recognized by our courts in the decree rendered upon such contract. The law has, by express provisions, ordained the mode in which its own officers shall enforce the judgments of the courts.

"Parties regulate their own conduct by their stipulations, but they cannot prescribe rules of proceeding for public officers, nor demand that the courts of justice shall depart from the usual modes of enforcing their decrees. If, before judgment, the creditor may stipulate the manner in which the same shall be executed, the principle will sanction an endless variety of modes of execution of judgments, and, indeed, the parties may waive all formalities and all delay, and may even consent that some other person than the sheriff shall sell the property of the debtor, and execute the decree of the court. And if a decree giving effect to such contract be legal, then also the sale under it would be legal, and other creditors might find themselves deprived of their common pledge without notice. In view of our complicated system of mortgages and privileges, and the restrictions upon sales where parties are in insolvent circumstances, as well as the responsibility imposed by our laws upon the sheriff and his sureties, we are of the opinion that such stipulations ought not to be enforced. If they be not immoral, they may be considered as affecting the rights of others, and void."

However, the court, thereafter, in the case of Broadwell v. Rodrigues, 18 La. Ann, 68 (1866), considered a suit in injunction in which the question involved was whether a clause inserted in a mortgage dispensing with the appraisement required by articles 673 and 745 of the Code of Practice in case of a judicial sale was valid in law.

In that case plaintiff, as mortgagor, relied upon the application of the principle of law found in the first paragraph of the 11th article of the Louisiana Civil Code, which provides, in part, as follows:

"* * * Individuals cannot, by their conventions, derogate from the force of laws made for the preservation of public order or good morals."

Plaintiff stressed therein the fact that such a law was a public law and designed for the preservation of public order and that said clause of waiver was null and void, and that notwithstanding the same the mortgagor was entitled to have an appraisement of the property previous to its sale under executory process by the sheriff.

The defendant urged the second paragraph of said article 11 of said Civil Code, which provided as follows:

"But, in all cases in which it is not expressly or impliedly prohibited, they can renounce what the law has established in their favor, when the renunciation does not affect the rights of others, and is not contrary to the public good."

Defendant contended that there was nothing in the Code to prohibit a waiver of appraisement and that it was not in any manner contrary to the public good.

In that case there is a very learned and interesting discussion in reference to the renunciation of private rights. The court said:

"We are not prepared to subscribe unrestrictively to the plaintiff's theory, that formalities prescribed by law, in executing final process, are so essentially obligatory on the parties to a suit, that they may not be dispensed with. There is certainly in the Code no express prohibition against a party's waiving an appraisement of his property, either before or after the seizure of it. Nor is there anything in the context of the law, or in any law on the subject matter, from which such a prohibition is to be implied. * * *

"Between criminal and civil laws, there is marked difference; the former are strictly public laws, and must be so deemed by the courts of justice which administer them, and by individuals who come under their control.

"But civil laws, which involve mere private rights, may be often lawfully relaxed and waived by covenants in order that the varied transactions, which in the course of human events, are constantly occurring, and with which no code of laws can possibly keep pace, may be facilitated and the more readily consummated.

"This we apprehend to be the general rule, as relates to the renunciation of private rights. The exceptional cases are those which trench on public order; and, within those exceptional cases, is not embraced, as we conceive, the stipulation in the mortgage granted by the plaintiff in injunction. * * *

"This absolute dominion of the owner over his property, is well expressed by the terms of the Roman law. 'Tua quisqua rei moderator et arbiter.' He may use or abuse it as he lists. 'Jus utendi et abutendi.'

"The owner of property may lawfully contract in relation to it, and he is constrained by no law, as to the terms and conditions on which he may dispose of, or affect it, except in cases for which the law itself has provided."

In that case the court held that the plaintiff's renunciation of the benefit of appraisement in her mortgage was legally valid and that she could not, afterwards, be allowed to attack the judicial sale as invalid. That decision was delivered in January 1866, and in March, 1866, the Legislature enacted a law requiring that all property sold under execution should bring its full appraisement. The Supreme Court in the case of New Orleans Mutual Insurance Co. v. Bagley (1867) 19 La. Ann. 89, again considered the same question of whether a clause in a mortgage dispensing with the appraisement of the mortgaged property was valid. In that case the lower court held that the mortgaged premises could not be sold without appraisement, but on appeal the Supreme Court held that the property should be sold without appraisement, and that the statute of March, 1866, did not deprive the debtor of the right to make a waiver of the benefit of appraisement, thereby adhering to the rule announced in Broadwell v. Rodriguez, supra, in holding that a clause waiving appraisement in a mortgage was legal and valid.

From these decisions in Louisiana it is apparent that they have no application in determining the waiver of appraisement provision in section 451, O. S. 1931, supra, the constitutionality of which is not questioned, and I have been unable to find any statute in Louisiana similar to said section which authorizes the sale of land without appraisement pursuant to a judgment rendered on a note which contains the words "appraisement waived" or words of similar import.

In the action instituted by Cherry against Mrs. Butler, the trial court, after rendering judgment for the amount due under the note in question, sustained the attachment proceeding and made the following order:

"And it is the further order of the court that, after expiration of six months from the date of rendition of this judgment, viz.: the 13th day of April, 1928, an execution be issued by the court clerk of said county to sell said real estate, in the manner provided by law for sales of real estate on execution without appraisement, to satisfy and pay the sums hereinbefore adjudged to the plaintiff.

"And it is further ordered by the court that any other process issued for the collection of said judgment shall be enforced, if lands and tenements are levied upon, by sale without appraisement, but no such process, sought to be enforced against the lands and tenements of the defendant, shall be issued on this judgment until the expiration of six months from this data. To all of which order and judgment defendant excepted."

I conclude that the waiver of appraisement contained in the note was sufficient to authorize the sale of the attached land under execution without appraisement, and that Mrs. Butler as debtor in signing the note in question waived and legally renounced the benefit of appraisement in reference to the land which was mentioned in said note and which was directed to be sold by the trial court without appraisement but not until the expiration of six months from the rendition of said judgment.

I consider it unnecessary to discuss the question of homestead determined adversely to Mrs. Butler in the attachment suit except to reiterate that a surviving spouse, having minor children, may abandon the homestead and thereby terminate the right of homestead in said minor children. Lusk v. Carter Oil Company. 172 Okla. 508, 53 P.2d 656.

It is my conclusion that the trial court erred in directing a verdict for the plaintiff. The judgment should be reversed and remanded for further proceedings.