HADDOCK v. FIRST NATIONAL BANK AND TRUST COMPANY

HADDOCK v. FIRST NATIONAL BANK AND TRUST COMPANY
1956 OK 297
304 P.2d 1053
Case Number: 37214
Decided: 11/13/1956
Supreme Court of Oklahoma

LEONARD RAYMOND HADDOCK, PLAINTIFF IN ERROR,
v.
THE FIRST NATIONAL BANK AND TRUST COMPANY OF TULSA, OKLAHOMA,
DEFENDANT IN ERROR.

Syllabus by the Court.

¶0 1. Where the petition upon which the plaintiff seeks to recover money paid to the defendant wholly fails to state a cause of action it is not error for the trial court to sustain a demurrer thereto and enter judgment for defendant.

Appeal from the Court of Common Pleas, Tulsa County; Lloyd H. McGuire, Judge.

Action by Leonard Raymond Haddock as plaintiff to recover $968 paid to the First National Bank and Trust Company of Tulsa, Oklahoma, defendant. From an order of the trial court sustaining a demurrer to the amended petition and entering judgment for defendant plaintiff appeals. Affirmed.

S.J. Clendinning, Tulsa, for plaintiff in error.

Conner, Winters, Randolph & Ballaine, Hess Crossland, James R. Ryan, Tulsa, for defendant in error.

CARLILE, Justice.

¶1 This action was brought by Leonard Raymond Haddock as plaintiff to recover from the defendant, First National Bank and Trust Company of Tulsa, Oklahoma, the amount of $968 paid to said defendant. The amended petition alleges:

"I. That the plaintiff is now and has been at all
times hereinafter mentioned a resident of Tulsa
County, Oklahoma, and the defendant at all times
hereinafter mentioned is a national bank duly
authorized to do business and doing business in the
City of Tulsa, Tulsa County, Oklahoma.

"II. That on or about the 12th day of December,
1952, this plaintiff filed his petition in the
bankruptcy court of the Northern District of Oklahoma
and, among other debts, listed a mortgage
indebtedness of $2,179.80 in favor of the defendant
and secured by a chattel mortgage on a 1951 Chevrolet
model automobile. That the plaintiff was advised by
his attorney and the Trustee in Bankruptcy that the
mortgage of the First National Bank & Trust Company
of Tulsa, Oklahoma, was a valid mortgage of record
and that he could pay to the First National Bank the
balance due on said mortgage and retain his
possession of the 1951 Chevrolet automobile.

"Plaintiff alleges that within a few days after he
had filed for bankruptcy in the bankruptcy court of
the Northern District of Oklahoma, a Mr. Davis, one
of the officers of the defendant bank contacted this
plaintiff and advised him that he could keep the 1951
Chevrolet automobile if he would pay immediately
three back payments on the mortgage and continue to
pay the payments under the terms of the mortgage.
Whereupon, plaintiff paid the three back payments and
continued to make monthly payments under the terms of
the mortgage.

"Plaintiff further alleges that the defendant bank,
knowing their mort-could be asserted in the
Bankruptcy gage was not a valid mortgage that Court
and knowing that the plaintiff did not know that the
mortgage had not been filed, made the above
arrangement with plaintiff to pay the three back
payments then due and the balance of the mortgage, as
called for by the terms of said mortgage and in the
same manner as followed by plaintiff prior to the
filing of the bankruptcy case.

"That the defendant bank accepted from this
plaintiff under false premise the sum of $968.00.

"III. That on or about the 28th day of April, 1954
James B. Coppedge, Trustee in Bankruptcy, learned for
the first time that the bank did not have a valid
mortgage that could be asserted in a Bankruptcy
Court, because said mortgage was not filed of record
in Tulsa County by the defendant bank and made
application for the automobile to be delivered to the
Trustee in Bankruptcy.

"That on or about the 13th day of May, 1954, the
Trustee in Bankruptcy, under order of the Bankruptcy
Court, seized the car of Plaintiff and permanently
deprived plaintiff of the possession thereof. That
the debt owing from the plaintiff to the defendant
was fully satisfied in bankruptcy and that this
plaintiff paid the money to the bank through a
mistake of fact, as heretofore set out, and the bank
accepted the money knowing full well that they had no
authority whatsoever to make arrangements with the
plaintiff to keep the said car.

"Plaintiff further alleges that the payment of said
money was through a misunderstanding of fact well
known to the defendant and there was no consideration
whatsoever passing from the defendant bank to this
plaintiff and that plaintiff is entitled to have the
said sum of $968.00 immediately returned to him.

"IV. Plaintiff further alleges that he has made
demand on the bank for return of said money and the
bank has failed and refused to comply with the
plaintiff's request.

"Plaintiff further alleges that his claim against
the bank has been listed for intangible tax and said
tax has been paid as, and when, provided by law.

"Wherefore, plaintiff prays judgment against the
defendant for the sum of $968.00, together with
interest thereon at the rate of six percent from the
date said money was received by the defendant bank,
together with all costs herein layed out and expended
and for such other and further relief as to the Court
seem just and proper."

¶2 The trial court sustained a demurrer to the petition as amended and entered judgment for the defendant. Plaintiff appeals.

¶3 Although plaintiff makes the allegation that defendant, knowing that the mortgage was not filed and knowing it could not be enforced in a court of bankruptcy, took the $968. There is no allegation that defendant knew the mortgage could not be enforced against the plaintiff by defendant. Assuming that the allegation is sufficient to charge the defendant with knowledge that the mortgage was unenforceable against him at law, there is nothing in the allegation that charges a fraudulent concealment. It is not alleged plaintiff asked the defendant if its mortgage was filed. A chattel mortgage, though not filed, is good between parties. Fiegel v. First National Bank of Kingfisher, 90 Okl. 26, 214 P. 181; Morgan v. Stanton Auto Co., 142 Okl. 116, 285 P. 962; Allen v. Banta, Okl., 262 P.2d 904.

¶4 A debt is not extinguished by bankruptcy, but only rendered unenforceable. 6 Am.Jur. Bankruptcy, Sec. 750, p. 985; Schuman Bros. v. First National Bank of Skiatook, 115 Okl. 23, 240 P. 647.

¶5 Plaintiff asserts, as alleged, that the payment was made without consideration. This allegation cannot be sustained. Defendant, according to the allegation, paid out over $2,100 for plaintiff, on which he owed $968. Part of this was delinquent at the time the transaction was made. Not only did the defendant give up the debt but a valid right to assert its claim in bankruptcy.

¶6 It is necessary to plead a discharge to defeat an action for a debt. 6 Am.Jur. Bankruptcy, Secs. 805-806, p. 1024. In Section 806, supra, it is stated:

"A discharge in bankruptcy must be pleaded
specially. A plea of adjudication in bankruptcy is
not sufficient as a pleading of the defense of
discharge. * * *"

¶7 Plaintiff assumes there was an obligation for the defendant to file the mortgage or tell plaintiff it was not filed. We do not agree. An unrecorded or unfiled mortgage may be established in a court of bankruptcy under the same conditions as against third parties. 6 Am.Jur. Bankruptcy, Sec. 991, p. 1142. Plaintiff does not allege he made any effort to discover whether the mortgage was filed. There was sufficient consideration to support the payment. Under the pleadings there is nothing to show plaintiff was mislead or deceived. The petition did not state a cause of action.

¶8 The action of the trial court in sustaining the demurrer and entering judgment for the defendant is affirmed.

¶9 JOHNSON, C.J., WILLIAMS, V.C.J., and CORN, DAVISON, HALLEY and JACKSON, JJ., concur.