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1955 OK 148
293 P.2d 574
Case Number: 35962
Decided: 05/10/1955
Supreme Court of Oklahoma





¶0 1. It is not the duty of the Supreme Court to find a theory upon which to reverse the judgment of the trial court, for, in view of the presumption of correctness that accompanies such judgment on appeal, the burden is upon the appellant to show affirmatively that prejudicial error has been committed; and, where its briefs, when considered together and as a whole, tend to show only that such judgment may have been based upon wrong reasons or an incorrect theory, without establishing that it reached an incorrect result or [293 P.2d 575] determination, this Court may consider them as concerning only abstract or academic questions, rather than a presentation of prejudicial error.

2. Where, after the district court has entered its order confirming a sheriff's sale of land in real estate mortgage foreclosure proceedings, upon the trial of proceeding to have the sale set aside and the confirmation order vacated, said court may examine into the equities of the parties associated with facts, circumstances and transactions not involved in the judgment, and, if there is evidence of unfairness, deception or impropriety in the same and it appears that confirmation sacrifices the interests of the mortgagors and/or their successors, it is within the sound judicial discretion of the court to vacate the order of confirmation and allow said defendants to redeem, upon their tender of the mortgage indebtedness, interest and other proper charges.

[293 P.2d 575]

Appeal from the District Court of Beckham County; W.P. Keen, Judge.

Proceedings in a real estate mortgage foreclosure action by the special administratrix of the estates, and certain heirs, of the deceased mortgagors and foreclosure judgment debtors therein, to revive said action and set aside the judgment, the previous sheriff's sale, and order confirming said sale. From the judgment of the trial court setting aside said sale and confirmation order, but refusing vacation of the foreclosure judgment and denying the heirs' petition of intervention, the mortgagee and judgment creditor appeals and the heirs cross appeal. Affirmed.

R.H. Dunn, A.M. deGraffenried, N.A. Gibson and Shell Bassett, Oklahoma City, for plaintiff in error.

Rutherford H. Brett, Oklahoma City, Donald Royse, Elk City, Leon S. Hirsh, Oklahoma City, for defendant in error.

Doerner, Rinehart & Stuart and Harry D. Moreland, Tulsa, for cross-appellants.


¶1 This appeal involves an action instituted in the district court as Cause No. 6144, by plaintiff in error, as plaintiff, against Henry W. and Mary E. Hilgenberg, husband and wife, as defendants, for judgment on a promissory note in the principal sum of $3,000, with interest thereon at the rate of five percent per annum until due, and ten percent per annum after maturity, and for foreclosure of a real estate mortgage on their 160-acre farm, executed and delivered by said defendants to plaintiff to secure payment of said note. Said plaintiff obtained a default judgment in that action for the relief above indicated on March 25, 1936.

¶2 By a statement introduced in the present litigation as defendants' Exhibit No. 36, it was revealed that on said date there was due, besides the principal of $3,000, interest on said note in the amount of $1,214.17, and attorneys fees in the amount of $300, making the Hilgenbergs' entire indebtedness due plaintiff, the total sum of $4,514.17. Notwithstanding this, the amount of the judgment specified in the journal entry thereof (that was not filed until almost a year later, or on February 8, 1937), was $5,134.84, exclusive of the $300 attorneys fee.

¶3 At some time during the latter part of 1936 or early part of 1937, the Hilgenbergs apparently entered into negotiations with the Commissioners of the Land Office in an effort to save the farm from foreclosure sale. The proof as to the exact terms of the agreement made in culmination of these negotiations is not clear, complete or unequivocal, but apparently it provided in substance that if the Hilgenbergs would, by payments to be made thereon, reduce their indebtedness to said Land Office Commissioners to a maximum of $5,000, then the latter would consider making them a new or renewal loan in that amount and release the judgment and cancel the original debt. Because of said agreement, or some other reason, plaintiff caused an Order of Sale, whose issuance it procured on March 17, 1937, to be returned not served, and no foreclosure sale was then held. Thereafter, Mr. Hilgenberg commenced his payments under the above-described arrangement on March 29, 1937. On May 16, 1938, the Land Office Commissioners approved Hilgenberg's application [293 P.2d 576] for a renewal loan to the extent of only $3,000, instead of the $5,000 applied for. Notwithstanding this, another payment was made and accepted on the indebtedness prior to Mr. Hilgenberg's death on December 28, 1938, the total sum of which said payments, by that time, amounted to $440. After Mr. Hilgenberg's death, payments were continued under said agreement either by Mrs. Hilgenberg, his widow and co-obligor, or by his son, Ralph B. Hilgenberg, as administrator of said decedent's estate, or both, until January 14, 1943, on which date a total of $1,760 had been paid thereon. When by January 24, 1944, no further payments had been made on said indebtedness, plaintiff caused a new Order of Sale to be issued in the foreclosure action, and, under said order, the mortgaged farm was sold to the State of Oklahoma on February 12, 1944, on a bid of $5,800, no part of which was paid in cash, but apparently most of which was paid merely by cancelling the judgment indebtedness, which, with the inclusion of interest on the judgment at the penalty rate of ten percent from the date of the filing of the journal entry thereof, until the date of the issuance of the last Order of Sale, and with the aforesaid payments subtracted therefrom, amounted, according to plaintiff's records, to only $5,745.92.

¶4 Said sale was confirmed by order entered March 13, 1944, and Mrs. Hilgenberg died approximately two weeks later. Notwithstanding her death, it appears to be agreed (although the documents themselves are said to have been lost) that on May 2, 1944, petitions of intervention were filed both on her behalf and the tenant on the farm, and by the son, Ralph B. Hilgenberg, as administrator of his father's estate, seeking vacation of the order confirming the sale. While these petitions were still pending, and without any final disposition by court action having been made thereof, and while he was still administrator of his father's estate, Ralph B. Hilgenberg purchased the farm, less a reserved undivided one-half interest in the minerals thereunder, from plaintiff, acting on behalf of the State, at public sale on August 29, 1944, for the sum of $4,200. Thereafter, he was discharged as administrator of the estate on May 22, 1945. Subsequently, one of the two 80-acre tracts comprising the farm, was conveyed to Ralph's brother, C.H. Hilgenberg, and the other 80 acres was conveyed to Orville and Lena Hilgenberg.

¶5 In July, 1950, Mrs. Bert Landess, a granddaughter of the deceased mortgagors and judgment debtors, Henry W. and Mary E. Hilgenberg, was appointed special administratrix of said decedents' estates. In that capacity she made an appearance, during August of that year, in the foreclosure proceedings, (Cause No. 6144, supra,) by filing therein what was termed Amendments to the Petitions in Intervention that had been filed, as aforesaid, more than six years previously on behalf of Ralph B. Hilgenberg and others. On the same date, she filed a Motion for Revivor, and, after a hearing thereon, the court, on December 4, 1951, sustained her said motion. She thereupon filed a motion to vacate the judgment of foreclosure, to set aside the sheriff's sale to the State, and to vacate the order of March 13, 1944, confirming said sale. Mrs. Lois Hilgenberg, surviving widow of Roy C. Hilgenberg, another son of the deceased mortgagors and judgment debtors, together with said couple's children, filed a similar motion. After a trial on these motions, the district court dismissed the latter motion of the Roy C. Hilgenberg heirs on the ground that they were not proper parties to prosecute the vacation proceedings. Said court also denied Mrs. Landess' motion to vacate the foreclosure judgment, but sustained her motion to set aside the foreclosure sale and the previous order confirming it.

¶6 The present appeal was lodged upon the filing of petitions in error on behalf of both the Commissioners of the Land Office, on relation of the State of Oklahoma, and the Roy C. Hilgenberg heirs, but the latter have joined in the brief of the defendant in error, Mrs. Bert Landess, special administratrix, and they therein assert that their petition in error was filed merely as a precaution against this Court's determining that the heirs, rather than the special administratrix of the estates of the deceased mortgagors, are the proper parties to exercise said mortgagors' right of redemption, [293 P.2d 577] assuming, of course, that such right still exists. No question as to whether the special administratrix (as between said defendant in error and the cross-appellants) is the proper party to institute the vacation proceedings is raised herein by plaintiff in error. Consequently it would appear that if the judgment of the trial court is affirmed, no separate or special consideration of the Roy C. Hilgenberg family's position will be necessary or appropriate.

¶7 We will continue our previous reference to plaintiff in error as "plaintiff" and will hereinafter refer to Mrs. Landess, the special administratrix, as "intervener".

¶8 Plaintiff contends under Proposition I of its brief that the one-year limitation period referred to in Tit.

¶9 Proposition II in plaintiff's brief in chief is as follows:

"The validity of the judgment in foreclosure being conceded by defendants in error and no defect in the sale proceedings being shown, the trial court erred in holding such sale proceedings invalid and setting aside the order of confirmation."

¶10 Our examination of the record and the brief of the intervener (or defendants in error) reveals no concession of the validity of the foreclosure judgment. In fact, it reveals quite the contrary, but this is not always or necessarily a material issue in reversing an order setting aside a foreclosure sale and its confirmation. This was clearly demonstrated in the case of State ex rel. Com'rs of Land Office v. Loughridge, Okl.,

¶11 The judgment of the trial court is therefore affirmed.

¶12 WILLIAMS, V.C.J., and CORN, DAVISON and JACKSON, JJ., concur.

¶13 WELCH and HALLEY, JJ., dissent.



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