HURST v. BYARS

HURST v. BYARS
1956 OK 167
298 P.2d 407
Case Number: 37191
Decided: 05/22/1956
Supreme Court of Oklahoma

MARY B. HURST AND ISAAC L. HOPKINS, PLAINTIFFS IN ERROR,
v.
CLARISSA E. BYARS, MARY BROWN AND CLINTON BYARS, DEFENDANTS IN ERROR.

Syllabus by the Court

¶0 1. A mortgagor or his heirs in possession of the mortgaged property may institute and successfully maintain an action to quiet title against the mortgagee not in possession of the mortgaged property when the mortgage lien has been extinguished by lapse of time sufficient to bar an action upon the mortgage debt.
2. By statute, the written portions of a contract govern over the printed portions in case of conflict between the two.
3. Where the intention of the parties is clearly expressed by language incorporated by writing in the printed habendum clause of the instrument, such expression of intent may control over the granting clause of the instrument.

Appeal from the District Court of Cotton County, Oklahoma; Toby Morris, Judge.

Action to quiet title. Judgment for the plaintiffs, defendants appeal. Affirmed.

A.M. Beets, Comanche, for plaintiffs in error.

Walter Hubbell and Luther B. Eubanks, Walters, for defendants in error.

PER CURIAM.

¶1 This action was instituted on November 8, 1954, by the defendants in error, plaintiffs below, to quiet their title to a described tract of land against the plaintiffs in error, defendants below. The parties will hereinafter be referred to by their trial court designation.

¶2 In answer to the plaintiffs' petition, which alleged the facts upon which they based their title, the defendant Hopkins answered, alleging himself to be the owner of an unpaid, recorded, purchase money mortgage executed by Pope Byars, deceased husband and father of the plaintiffs, and by Clarissa E. Byars, his wife, one of the plaintiffs. This mortgage was executed September 27, 1923. The defendant testified that there had been no payments made on the indebtedness for which the mortgage was given as security. The undisputed testimony of one of the plaintiffs established that they were in possession of the property and had been continuously since 1923.

¶3 The defendant, Mary B. Hurst, answered and alleged that she was the owner of an undivided 1/16 interest in all of the oil, gas, and other minerals under the land by reason of a deed given by the Byars to the defendant Hopkins at the time they purchased the property from him, and which interest Hopkins had quitclaimed to her. The instrument from the Byars to Hopkins was introduced in evidence. The case was tried by the court and judgment was entered quieting the plaintiffs' title against the claims of these defendants.

¶4 The court did not err in quieting the plaintiffs' title against the Hopkins mortgage without first requiring proof of payment. In Burroughs v. Burroughs, 196 Okl. 50, 162 P.2d 549, 551, we considered a factual situation almost identical with the one presented by this case and there said:

"In view of the holdings of the foregoing
authorities, and in view of the particular wording of
the aforesaid statute, [

¶5 We have carefully considered defendant Hopkins' contention that "one seeking equity must do equity", and the authorities cited in support thereof. We conclude that under the factual situation here involved, Sec. 23 [42-23], Title 42 O.S. 1951, and the cases cited construing same, is controlling here, and this contention is, therefore, without merit.

¶6 The argument that the court erred in quieting the plaintiffs' title against the mineral conveyance from Mr. and Mrs. Byars to Mr. Hopkins is likewise without merit. In Peppers Refining Co. v. Barkett, 208 Okl. 367, 256 P.2d 443, an instrument very similar to the one involved in this action was considered, and the limitation as to time written into the printed habendum clause of the instrument was there construed to control the mineral estate conveyed by the granting clause of the conveyance.

¶7 The judgment is affirmed.

¶8 JOHNSON, C.J., WILLIAMS, V.C.J., and DAVISON, HALLEY, BLACKBIRD and HUNT, JJ., concur.

¶9 The Court acknowledges the aid of the Supreme Court Commissioners in the preparation of this opinion. After a tentative opinion was written by Commissioner James H. Nease and approved by Commissioners Jean R. Reed and J.W. Crawford, the cause was assigned to a Justice of this Court for examination and report to the Court. Thereafter, upon report and consideration in conference, the foregoing opinion was adopted by the Court.