BLAKE v. CUNEO

BLAKE v. CUNEO
1941 OK 10
111 P.2d 485
188 Okla. 533
Case Number: 27996
Decided: 01/21/1941
Supreme Court of Oklahoma

BLAKE
v.
CUNEO et al.

Syllabus

¶0 1. DEEDS--Conveyance of tract abutting on railroad right of way in which grantor owns servient estate passes to grantee such servient estate unless contrary intention clearly shown in deed.
The law of the case is that when owner conveys a tract of land abutting on a railroad right of way in which such grantor owns the servient estate and the railroad company owns the dominant estate for right of way purposes, his conveyance passes to his grantee such servient estate, unless the intention not to do so is indicated in the deed by clear and unequivocal language.The conveyance of such servient estate is not excluded by the circumstance that the plat by reference in which the conveyance was made shows the side lines of the property conveyed as stopping at the exterior line of the right of way.
2. SAME--Plea of intervention by grantor failing to show his deed to tract did not convey servient estate.
Where a party, by a plea in intervention asserting ownership of the servient estate in land, subject to a dominant estate held by a railroad company for right of way purposes, admits in pleading that he has conveyed adjacent land to which a servient estate is attached without pleading clear and unequivocal language contained in the instrument of conveyance showing that the servient estate was not conveyed, the plea is insufficient to allege ownership in such servient estate.
3. APPEAL AND ERROR--Appeal by cross-petition in error treated as abandoned where no brief filed.
Where a party appeals from a judgment by cross-petition in error and files no brief, the appeal will be treated as abandoned.
4. APPEAL AND ERROR--Restitution required of all things in party's control aquired by judgment reversed.
A party in whose favor a judgment is rendered must, on its reversal, make restitution of all things in his control acquired by the judgment.
5. SAME--Jurisdiction to require restitution where person had obtained judgment in his favor.
A person who obtains a judgment in his favor submits himself to the jurisdiction of the court to the extent that he may be required upon reversal of judgment to make restitution.
6. JUDGMENT-Subsequent order for interpleader to pay fund into court releasing him from further liability was not modification of judgment for payment of fund to party to suit.
Where a judgment is obtained by a party for the payment to him of a fund held by a third party or interpleader, at one term of court, and at a subsequent term an order is made that the interpleader pay the fund into court, and upon so doing be released from further liability, the subsequent order is not a modification of the judgment, but a provision for payment of it.
7. DEPOSITS IN COURT--Action for accounting for royalty accrued under oil and gas lease--Lessee as stakeholder paying money into Court after judgment released pro tanto though judgment subsequently reversed.
Where, in accounting for royalty accrued under an oil and gas lease, third parties asserting claim to a part of such funds are made parties defendant, such third parties are thereby made adversaries as to plaintiff, and where the oil and gas lessee by answer merely sets forth facts and circumstances under which it became possessed of funds held, asserts no right to retain the money so held, tenders same into court and prays only for a judgment directing its payment to the proper party, such oil and gas lessee is entitled to the equitable remedy of an interpleader, as a stakeholder, and upon payment of the money into court, after judgment, is entitled to release to the extent of the money so paid, although the judgment be erroneous and subsequently reversed.

Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.

Action by Louis J. Cuneo and others against the Champlin Refining Company and others for accounting for oil and gas produced and to quiet title. From an adverse judgment, plaintiffs appealed, and judgment was reversed and cause remanded with directions. Subsequently there was judgment for plaintiffs, and E. E. Blake appeals. Affirmed.

W. A. Boyack and E. E. Blake, both of Oklahoma City, for plaintiff in error and intervener.
Nathan Scarritt and E. S. Champlin, both of Enid, for defendant in error Champlin Refining Company.
Everest & Halley, of Oklahoma City, for defendants in error Valentine G. Knoell and Katherine Knoell.
Roger Stephens, Fred L. Hoyt, and Frederick J. Hoyt, all of Oklahoma City, for defendant in error Louis J. Cuneo.

RILEY, J.

¶1 This is a second appeal. Cuneo v. Champlin Refining Co., 178 Okla. 198, 62 P.2d 82.

¶2 By the law of the case Cuneo et al. are vested with a servient estate to certain land over which the St. Louis & S. F. Railway Company has an easement and upon which is located the railroad right of way. Cuneo et al. derived title from Mary J. McMeachan, who platted and sold block 23, Central Park addition to Oklahoma City.

¶3 After reversal Mary J. MeMeachan intervened, but her pleading was stricken. She appeals, contending that Cuneo et al. did not plead an interest in land outside their lot lines, i. e., they did not seek a royalty interest represented by the right-of-way strip adjacent to their lot. The case-made, page 75, avers that "whatever rights, if any, the said McMeachan had under said right of way has been conveyed to the plaintiff." The plea was insufficient because intervener admitted conveyance of the lots adjacent to the right of way without averment of reservation by appropriate language in her deeds, and as above stated Cuneo et al. claimed the servient estate.

¶4 On January 12, 1934, Champlin Refining Company, by order of court, paid into court $5,788.49, representing value of oil in controversy as produced to January 1, 1934, and on January 18, 1934, the trial court found that Blake, Ivy, and the Knoells requested an order directing the court clerk to disburse the above-mentioned fund in accordance with the judgment of December 22 1933. It was so ordered, and that day the Knoells got $2,865.24; Ivy, $1,432.62; Blake, $1,432.62 of said fund.

¶5 The Knoells (unsuccessful claimants finally, but primarily successful under the trial court's original judgment, which was not superseded) had employed W. H. Ivy as their attorney, and W. H. Ivy associated himself in the case with E. E. Blake, an attorney.

¶6 By the primary judgment the Knoells acquired an undivided one-half interest, Ivy and Blake an undivided one-fourth interest, respectively, in the royalty, and "all future payments due and accruing" therefrom were ordered to be paid to said defendants, Knoell, Knoell, and Ivy and to said E. E. Blake.

¶7 The right-of-way tract of land was attached for oil purposes to block 23, Central addition; by final judgment the Knoells, Ivy, and Blake had no right to oil or proceeds attributable, but Cuneo et al. became royalty owners of the area.

¶8 By final judgment Champlin Refining Company was credited with the $5,788.49 paid by it into court January 16, 1934, but judgment ran against Champlin Refining Company and in favor of Cuneo et al. for $10,891.37 remaining with the refining company "as stakeholder."

¶9 By final judgment the Knoells and Ivy and Blake were ordered to repay with interest within 30 days the amounts of $2,865.24, $1,432.62, $1,432.62, respectively, that they had received by the order of January 18, 1934.

¶10 Mr. Blake and Mr. Ivy appeal. Mr. Ivy having failed to file a brief, his appeal is treated as abandoned. The judgment of the trial court is presumptively correct.

¶11 Mr. Blake seeks reversal on the ground that while he was an attorney in the action he was not a party. The record he assisted in making, containing the order of January 18, 1934, by which he obtained the money now ordered restored, described Blake and Ivy and the Knoells as "defendants in the above titled cause." Moreover, by reason of Mr. Blake's position as an attorney, he not only was responsible for the action of his client in court, but as well for his own.

¶12 A party in whose favor a judgment is rendered must, on its reversal, make restitution. 3 Am. Jurisprudence, 744. Mr. Blake was no stranger to these proceedings; he secured initial fruits of the lawsuit. Florida Central Railroads v. Bisbee, 18 Fla. 60, and kindred cases are distinguishable and distinguished.

¶13 Mr. Blake by acts and conduct submitted himself to the jurisdiction of the court and empowered it to order of him restitution.

¶14 Plaintiffs, Cuneo et al., by cross-appeal contend error in the judgment allowing Champlin Refining Company credit for the $5,788.49 paid by it into court and distributed as aforesaid. The effect of this part of the judgment is to release Champlin Refining Company to the amount paid by it into court under the theory that Champlin Refining Company was a mere stakeholder.

¶15 There is some contention that, since the original judgment was entered December 22, 1933, and the order for the payment by and discharge of Champlin Refining Company was not entered until January 12, 1934, after elapse of the term of the court, the court was without jurisdiction to modify the original judgment. There is no merit in this, for there was no modification of the judgment, but a provision for payment under it.

¶16 Irrespective of the court's order, Champlin Refining Company's payment into court was authorized under section 78, O. S. 1931, 12 Okla. Stat. Ann. § 27, for it was a party defendant with the right to defend its lease from cancellation on the ground of fraud as alleged, and at the same time tender into court a royalty payment as a mere stakeholder.

¶17 When the court clerk received the royalty payment, it became his duty to disburse it. Linson v. Barns, 136 Okla. 237, 277 P. 233; Commercial Investment Co. v. Peck, 53 Neb. 204, 73 N.W. 452.

¶18 Cuneo et al. had ample opportunity to stay the judgment, and failing to do so, it is bound by the general rule that when the court takes jurisdiction of a fund, as in the present case, the depositor is relieved of liability. Devlin v. Hinman, 57 N.Y.S. 663, aff. 161 N.Y. 115, 55 N.E. 386. In the cited case it was held:

"The depository of the moneys, having been made a party to the action, set up that it was a mere custodian of the funds, and asked to be permitted to deposit the same to the credit of the action, and to be discharged from further liability on account thereof. * * * It then became a fund in the hands of the court, to be held by it for the purpose of delivery to the party who should finally establish right thereto." See, also, McFadden v. Swinerton, 36 Ore. 336, 62 P. 12.

¶19 In defendants in error's brief, page 46, it is admitted that "If this payment was made by Champlin as a stakeholder, it was relieved of responsibility.

¶20 We find, and hold, that the record justifies the view of the trial court. Judgment affirmed.

¶21 WELCH, C. J., CORN, V. C. J., and GIBSON and DAVISON, JJ, concur.