Williams v. Mulvihill

Williams v. Mulvihill
1993 OK 5
846 P.2d 1097
64 OBJ 340
Case Number: 79453
Decided: 01/26/1993
Supreme Court of Oklahoma

 
BARBARA A. WILLIAMS, APPELLANT,
v.
MELINDA McCAUL MULVIHILL, PERSONAL REPRESENTATIVE OF THE ESTATE OF DWIGHT J. WILSON, DECEASED, APPELLEE.

Appeal from the District Court, Kingfisher County, Robert C. Lovell, J.

On Certiorari to review a certified interlocutory order of the district court, Kingfisher County; Robert C. Lovell, Judge.

¶0 In this proceeding for certiorari review of a certified interlocutory order, appellant sought to recast the case into an appeal from final mid-probate order and to suspend - without posting a bond required by the trial court - the effectiveness of the nisi prius declaration that appellant's purchase of an oil and gas lease from decedent's estate is a nullity.

PROCEEDING ORDERED RECAST INTO AN APPEAL FROM MID-PROBATE JUDGMENT; ORDER REQUIRING WILLIAMS TO POST A $100,000.00 BOND IS VACATED WITH DIRECTIONS TO RECONSIDER THE STAY MOTION IN A MANNER NOT INCONSISTENT WITH THIS PRONOUNCEMENT'S DIRECTIONS.

Robert G. Shoemaker, Kerr, Irvine, Rhodes & Ables, Oklahoma City, for appellant.

Henry A. Meyer, III, Hieronymus, Hodgden & Meyer, Harold G. Lowrey, Woodward, for appellee.

OPALA, Justice.

[846 P.2d 1099]

¶1 Two questions are dispositive of appellant's [Williams'] quest for predecisional procedural relief: (1) Shall this proceeding for certiorari to review a certified interlocutory order in probate be recast into an appeal from mid-probate judgment?1 and (2) Shall this court vacate or modify the trial court's requirement for a $100,000.00 bond to suspend the clerk's disbursement of the oil and gas proceeds now on deposit in his office?2

[846 P.2d 1100]

¶2 We answer both questions in the affirmative. The decision before us is a true "judgment" within the meaning of § 721(10)

I

A.

CRITICAL FACTS

¶3 Williams' husband [husband] and Melinda McCaul Mulvihill [Mulvihill] were co-executors of decedent's will. For $6,600.00 the husband assigned to Williams on March 25, 1986 an estate asset - an oil and gas lease in Woodward County. Although a facsimile of Mulvihill's signature appears on the recorded assignment, the parties stipulated that she never signed the document. Neither a return nor a confirmation of the sale in question had ever been filed in the probate case.

¶4 Mulvihill first brought suit to quiet the estate's title in the Woodward County lease. That action was still pending when the husband resigned as co-executor, leaving Mulvihill as the estate's only fiduciary. She then sought in probate an order declaring the undocumented and unconfirmed sale to Williams a nullity; later she dismissed her quiet title action.

B.

THE PROCEEDINGS IN PROBATE

¶5 Mulvihill urged below that as co-executor she did not authorize the husband's sale of the oil and gas lease to Williams. She contended the transfer was prohibited by the terms of 58 O.S. 1981 § 496 ,8 which bar an executor's wife from purchasing the estate's assets.9 Williams, a stranger to the estate, urged that Mulvihill had known about the sale for a long time and her attempt to set it aside was time-barred.10

¶6 The trial judge settled the statute of limitations question in the estate's favor and declared the assignment's transfer to Williams a nullity.

¶7 Williams brought an appeal by filing a timely petition in error.

II

A.

BECAUSE WILLIAMS IS A STRANGER TO THE ESTATE, THE ONLY IN-PROBATE ISSUE LITIGATED OR LITIGABLE BETWEEN HER AND THE ESTATE IS THE ESTATE'S RIGHT TO THE OIL AND GAS LEASE AND HER INTEREST, IF ANY, IN THE LEASE ASSIGNMENT

¶8 Probate is a statutory proceeding.

¶9 Probate judicature is limited in scope. Its remedial range extends to accommodate only some disputes that may arise in the course of an administration between a total stranger to the estate and its executor. A purchaser's clouded title in an asset secured from the estate without return or confirmation of sale lies within the permissible scope of probate inquiry. William's claim to the estate's lease asset derived from a judicial act in probate which remained unconsummated when challenged by the executrix' quest for the transfer's vacation. In pre-confirmation stages the cloud over ownership of the lease was hence litigable in probate.

[846 P.2d 1103]

¶10 The trial judge decided that (a) Mulvihill's quest for vacation of the purchased assignment was not time-barred and (b) the estate's sale to Williams was a nullity.

B.

THE NISI PRIUS DECLARATION THAT THE SALE TO WILLIAMS IS A NULLITY IS A TRUE "JUDGMENT" IN PROBATE WHICH RESOLVES ISSUES SEPARATE FROM THE PROBATE'S MAINSTREAM; IT IS ON A FINALITY FOOTING EQUAL TO THAT OF A DECREE OF DISTRIBUTION

¶11 Only parties interested in the estate may seek corrective relief from the final decree of distribution.

¶12 The trial judge's refusal to validate Williams' purchase and his vacation of the "returnless" and unconfirmed transfer by assignment from the estate did indeed give birth to a true adverse judgment within the meaning of § 721(10).29 In Bowdry v. Stitzel-Weller Distillery30 the highest bidder on some personal property at an estate sale sought appellate review of the trial court's confirmation of the sale made to a lower bidder. We there recognized the order confirming the sale made to the lower bidder as a "judgment" governed by § 721(10).31 The same recognition must be accorded today to the judgment here for review; it is clearly a classic § 721(10) judgment.

¶13 The intimation to be gleaned from some extant case law to the effect that the only final order in probate is the decree of distribution cannot pass muster under a careful re-examination of § 721(10). To the extent that Rule 1.10, Rules of Appellate Procedure in Civil Cases,32 and extant jurisprudence - such as Estate of Griffin33 - may suggest that a decree of distribution constitutes the only appealable final order in probate, the notion, which no longer can meet our approval, is hereby [846 P.2d 1105] rejected. A § 721(10) in-probate judgment is appealable as final by definition.34 In the § 721(10) context, the term "judgment" must be given the same meaning35 as that which it has in § 681.36 For today's § 721(10) judgment before us we adopt the § 68137 definition. The order declaring Williams' purchase of the assignment to be a nullity deserves the same appealability status as that which is accorded to judgments by § 952(a).38

III

IF WILLIAMS DESIRES TO POSTPONE DISBURSEMENT OF THE FUNDS IN CUSTODIA LEGIS, SHE MUST POST A BOND CONDITIONED ON HER PAYMENT OF DAMAGES FOR DELAY IN SOME REASONABLE PENAL SUM TO BE DETERMINED BY THE TRIAL JUDGE

¶14 Approximately $90,000.00 in lease proceeds is now on deposit in the court clerk's custody. The deposit consists of all runs which have accrued since Natural Gas Pipeline Company of America received notice that the assignment's sale to Williams was in contest.

¶15 Williams urges that we should defer the payout pending appeal because the estate has not recovered a personal money judgment against her

¶16 Mulvihill contends that (1) if no bond is posted, the beneficiaries will lose interest on the proceeds held by the clerk,

¶17 A mandatory stay of execution authorized by statute for certain judgments that are defined in the four subdivisions of 12 O.S. 1991 § 968.1 is not applicable to the case under review.

¶18 The estate now holds an unclouded title to the vacated assignment; it is clearly entitled to the immediate use of the proceeds on deposit in the court clerk's office. Yet in this posture, a judicially postponed disbursement would not be an abuse of discretion. Since the estate's loss from delayed payout may be mitigated by an order that would authorize the court clerk to place the entire deposit in an interest-bearing account or to invest the fund in cash-equivalent securities, it does not appear likely that damages for delay would aggregate $100,000.00. We hence vacate that part of the nisi prius order which calls for the high penalty limit on the bond. If Williams desires to stay the vacation order's effect, she must post an undertaking conditioned for payment of damages for delay in some reasonable penal sum to be determined by the trial judge.

¶19 If Williams gives an undertaking, the trial judge shall then order the funds on deposit placed either in an interest-bearing account or in cash-equivalent securities. In the event the bond is not posted, the trial court may order the fund's forthwith disbursement to the executrix.

SUMMARY

¶20 The decision here for review is a classic mid-probate "judgment" within the meaning of § 721(10).

¶21 The trial court did not abuse its discretion by imposing conditions on postponing disbursement of the fund in custodia legis pending appeal, but the penal sum set for the undertaking is too high. The order requiring Williams to post a $100,000.00 bond is vacated with directions to reconsider the motion to stay in a manner not inconsistent with the directions given in this pronouncement.

¶22 PROCEEDING ORDERED RECAST INTO AN APPEAL FROM MID-PROBATE JUDGMENT; ORDER REQUIRING WILLIAMS TO POST A $100,000.00 BOND IS VACATED WITH DIRECTIONS TO RECONSIDER THE STAY MOTION [846 P.2d 1107] IN A MANNER NOT INCONSISTENT WITH THIS PRONOUNCEMENT'S DIRECTIONS.

¶23 HODGES, C.J., LAVENDER, V.C.J., and SIMMS, HARGRAVE, KAUGER and WATT, JJ., concur;

¶24 SUMMERS, J., concurs in result;

¶25 ALMA WILSON, J., dissents.

Footnotes:

1 We do not reach appellant's alternative request that we treat the trial court's decision as an "interlocutory order appealable by right." If we were to accede, her appeal would be untimely because it was brought here more than thirty days after the order's rendition. See 12 O.S. 1991 § 993 ; Rules 1.40 and 1.61, Rules of Appellate Procedure in Civil Cases, 12 O.S. 1991 Ch. 15, App. 2.

2 The trial judge required that Williams give a $100,000.00 undertaking to stay his order declaring the sale a nullity. Williams did not file a bond; she now seeks an order that would allow her to suspend the decision's effectiveness sans bond.

3 The pertinent terms of 58 O.S. 1991 § 721 (10) are:

"An appeal may be taken from the following judgments . . .
10. From any other judgment . . . in a probate cause . . . affecting a substantial right." [Emphasis supplied.]

A judgment is defined as "the final determination of the rights of the parties in an action." 12 O.S. 1991 § 681 . For the terms of 12 O.S. 1991 § 681 , see infra note 36.

4 The pertinent terms of the judgment are:

"* * * 4. [Williams'] Motion for Summary Judgment should be denied for the reason that the limitation provided by 58 Oklahoma Statutes Section 493 is not applicable to the purported sale and assignment in this case. No previous return of sale was filed, no notice was given and no order confirming the sale has been entered. No equitable title or interest passed to [Williams] since the purported sale was illegal; [Williams] is not an innocent purchaser since she is presumed to have known that the law prohibited her from purchasing property from an estate of which her husband was co-executor. This was never a valid sale but merely a fraud upon the estate. Mr. Williams just transferred the property and Mrs. Williams started taking the money without any valid sale. This was an illegal transaction, an illegal attempt at fraud upon the estate.
"5. The purported sale and assignment of the oil and gas leasehold described above should be vacated, set aside and held for naught.
"6. As a result of the purported assignment of the oil and gas leasehold estate, Natural Gas paid Respondent at least Forty-seven Thousand Dollars ($47,000) of revenue from the sale of gas from the oil and gas leasehold estate; that on or about May 25, 1989, Natural Gas suspended further payment of revenue and is now holding suspended revenue attributable to the oil and gas leasehold estate of approximately Ninety-three Thousand Dollars ($93,000), less expenses of operations paid by Natural Gas, if any.
"7. Both [Williams] and Natural Gas are persons who have been entrusted with part of the estate of the decedent and that in accordance with 58 Oklahoma Statutes Section 295, each of them should be required to render a full account, under oath, of any monies or other property belonging to the estate which have come into their possession in trust for the Executrix.
"8. Natural Gas should be ordered to pay the money it now holds in suspense, together with anticipated monthly income, into the Court Clerk, until further order of the Court. * * *
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the purported sale of the oil and gas leasehold estate described in paragraph 3 above and the assignment thereof recorded in Book 979 at Page 195 in the records of Woodward County, be and they are hereby vacated, set aside and held for naught. "IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Barbara A. Williams appear before this Court on the 21st day of April, 1992, at 9:30 o'clock a.m. for the purpose of rendering a full account, on oath, of all monies, chattels, bonds, account, or other property or papers belonging to the Estate of Dwight J. Wilson, deceased, which have come to her possession, including specifically all revenue and other income which she received from March 25, 1986, to this date from or on account of the oil and gas leasehold estate specifically described in paragraph 3 above, unless she renders a written accounting under oath prior to that date. * * *
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that within ten (10) days after the date of this order Natural Gas Pipeline Company of America shall pay all of the funds attributable to the oil and gas leasehold estate described in paragraph 3 above which it now holds and all future revenue attributable to the leasehold, to the Court Clerk.
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that in the event of an appeal from this order, the amount of the supersedeas bond is hereby fixed at One Hundred Thousand Dollars ($100,000).
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the above and foregoing Order of the Court, in the event said Order is not deemed to be a final and appealable Order, is hereby certified for immediate interlocutory appeal under the provisions of Oklahoma Statutes Title 12 Section 993 (1991) as to all findings and orders made herein." [Emphasis supplied.]

5 This proceeding, brought here April 17, 1992 - within thirty days of the judgment's March 31, 1992 filing - is timely. 12 O.S. 1991 § 990A . The pertinent terms of § 990A are:

"A. An appeal to the Supreme Court may be commenced by filing a petition in error with the Clerk of the Supreme Court within thirty (30) days from the date the final order or judgment is filed. . ." [Emphasis supplied.]

6 The Latin phrase "in custodia legis" means "in the custody or keeping of the law." BLACK'S LAW DICTIONARY, p. 691 (5th Ed. 1979).

7 Allowance of damages for delay, or moratory damages, is committed to the court's sound discretion upon due consideration of the equities present in the case. Creason v. Perry, Okl., 801 P.2d 715, 716 (1990); E.B. Jones Const. Co. v. City & County of Denver, 717 P.2d 1009, 1015 (Colo. App. 1986).

Moratory damages in the case under review would consist of the estate's loss, if any, from the delayed disbursement of the oil and gas proceeds, less the amount of collected interest

8 The terms of 58 O.S. 1991 § 496 are:

"No executor or administrator must directly or indirectly, purchase any property of the estate he represents, nor must he be interested in any sale." [Emphasis supplied.]

9 Chastain v. Pender, 52 Okl. 133, 152 P. 833, 834 (1915).

10 Williams sought summary adjudication on the estate's claim to the oil and gas lease as time-barred. 58 O.S. 1991 § 493 . The terms of § 493 are:

"No action for the recovery of any estate sold by an executor or administrator, under the provisions of this chapter, can be maintained by any heirs, or other persons claiming under the decedent, unless it be commenced within two (2) years next after the sale. An action to set aside the sale on the ground of fraud may be instituted and maintained at any time within two (2) years from the discovery of the fraud." [Emphasis provided.]

11 The proceeding was submitted below upon stipulated facts as well as the testimony of two witnesses. The parties are doubtless mistaken when they represent the decision as a summary adjudication.

12 See supra note 5.

13 William's counsel asked the trial judge whether the judgment would be appealable. Although he stated that it would, he also certified the decision for immediate review anterior to judgment. For the pertinent terms of the judgment, see supra note 4.

14 Estate of Kizziar, Okl., 554 P.2d 791, 792 (1976). See 12 O.S. 1991 § 2001 , whose pertinent terms provide:

"The Oklahoma Pleading Code governs the procedure in the district courts of Oklahoma in all suits of a civil nature whether cognizable as cases at law or in equity except where a statute specifies a different procedure. . . ." [Emphasis provided.]

The notion of multiple procedural tracks for some classes of district court proceedings which cannot be accommodated by the Pleading Code is not new to the body of our adjective law. See, e.g., the Uniform Adoption Act, 10 O.S. 1991 §§ 60.1 et seq.; the provisions of 10 O.S. 1991 §§ 1101 et seq., commonly known as the "Juvenile Code" or "Children's Code;" statutes governing filiation proceedings, 10 O.S. 1991 §§ 70 et seq.; condemnation proceedings for highways, 69 O.S. 1991 § 1708 ; and condemnation proceedings for railroads, 66 O.S. 1991 §§ 51 et seq.; and of course, probate procedure, 58 O.S. 1991 §§ 1 et seq. Board of Law Library Trustees v. State, Okl., 825 P.2d 1285, 1288 n. 11 (1992).

15 Art. 7, Okl. Const. Article 7 was ratified in 1907. Its repeal and the enactment of what is now Article 7 was proposed by Laws 1967, p. 698, H.J.R. No. 508 and adopted at election July 11, 1967. The pertinent terms of Article 7, § 1 , Okl. Const., are:

"The judicial power of this State shall be vested in . . . a Supreme Court [and] . . . District Courts. . . ." [Emphasis supplied.]

16 20 O.S. 1991 § 91.1 . Adopted verbatim from Laws, 1968, c. 162, § 1, eff. Jan. 13, 1969, its pertinent terms are:

"The District Courts of the State of Oklahoma are the successors to the jurisdiction of all other courts, including . . . the County Courts. . . ." [Emphasis supplied.]

17 Kizziar, supra note 14 at 792.

18 See the probate procedure. 58 O.S. 1991 §§ 1 et seq.

19 Strangers may not press issues outside probate's remedial range. For example, although disputes over title between the estate and its heirs may be adjudicated within the ambit of a probate proceeding, the remedy of a stranger to the estate to recover property in the estate's possession or to assert title to that property is in an ordinary action. This is so because a probate's remedial range does not encompass quiet title relief to a stranger. Kizziar, supra note 14 at 792-793.

Mulvihill sought to cut off a stranger's interest in the assignment. Big Four Petroleum Co. v. Quirk, Okl., 755 P.2d 632, 634 (1988) (an executor's transfer of an estate asset, not yet confirmed, can confer an equitable interest in the purchaser). This would ordinarily require a quiet title action. But here it was a proper issue because the undocumented and unconfirmed sale had not yet been legally consummated or completed by confirmation.

20 For the pertinent terms of the judgment, see supra note 4.

21 The pertinent terms of 58 O.S. 1991 § 295 are:

"The judge of the district court, upon the complaint, on oath, of any executory or administrator, may cite any person who has been entrusted with any part of the estate of the decedent, to appear before such court, and require him to render a full account, on oath, of any monies, goods, chattels, bonds, accounts, or other property or papers belonging to the estate which have come to his possession in trust for the executor or administrator, and of the proceedings thereon; . . ." [Emphasis provided.]

22 When this proceeding came here, the court ordered accounting had not yet been completely accomplished. Later Williams filed a sworn statement of her income from the purchased assignment together with her expenses. We do not know whether further in-probate accounting steps are contemplated; if so, they would stand limited to mere discovery.

23 In re Cline's Estate, 169 Okl. 565, 38 P.2d 30, 31 (1934).

24 An extra-probate issue or controversy cannot be litigated within a probate's restrictive remedial range. It lies beyond the inter-docket boundary that separates the various remedial tracks within the district court's cognizance. 20 O.S. 1991 § 91.2 . See supra notes 14 and 19.

25 58 O.S. 1991 § 554 . The terms of § 554 are:

"On the day appointed, or any subsequent day to which the hearing may be postponed by the court, any person interested in the estate may appear and life his exceptions in writing to the account, and contest the same." [Emphasis supplied.]

A person who simply claims adversely to the estate is not a "person interested" in the estate. He is neither (a)competent to object to an accounting in the probate nor (b) bound by a probate order settling the account. In re Hart's Estate, 51 Cal. 2d 819, 337 P.2d 73, 76-77 (1959). On the other hand, heirs, devisers, legatees, and in some instances creditors would be among those "interested" in the estate. For the distinction between "parties" to probate and merely "interested parties," see Matter of Estate of Goyne, Okl., 733 P.2d 391, 394-395 (1987).

26 Under the terms of 58 O.S. 1991 § 721 (5), an appeal may be taken from an order ". . . [a]gainst or in favor of directing the partition, sale or conveyance of real property . . . ." [Emphasis supplied.]

27 The terms of 12 O.S. 1991 § 1006 are not applicable to probate proceedings. That section's standards for gauging finality require that everyone's claim in the action be decided before an appeal may be prosecuted. The pertinent terms of 12 O.S. 1991 § 1006 are:

"When more than one claim for relief is presented in action, whether as a claim, counterclaim, as a claim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the preparation and filing of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the filing of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action. . . ." [Emphasis provided.]

28 In Estate of Nation, Okl., 834 P.2d 442 (1992), the appellants, claiming to be pretermitted heirs, sought to appeal from a pre-decree denial of their status. The court concluded that their appeal was untimely brought from a temporary pre-decree order. Because qua heirs they could renew their claim and again appeal from its adverse disposition by the decree of distribution, the court dismissed their appeal without prejudice to their reurging the quest for corrective relief in a timely appeal from final decree.

In contrast to Nation, the appellant here [Williams] is a stranger to the estate. She has no interest in it and hence no standing to appeal from the decree of distribution. A timely appeal from the mid-probate order which extinguishes her entire claimed interest in the purchased assignment is her only appellate remedy.

29 Big Four, supra note 19 at 634. For the terms of 58 O.S. 1991 § 721 (10), see supra note 3.

30 200 Okl. 213, 192 P.2d 279, 281 (1948).

31 For the terms of 58 O.S. 1991 § 721 (10), see supra note 3. The provisions of 58 O.S. 1941 § 721 (8) were reenacted verbatim in what is now § 721(10).

32 The pertinent terms of Rule 1.10, Rules of Appellate Procedure in Civil Cases, 12 O.S. 1991 Ch. 15, App. 2 are:

"* * * A judgment includes any judgment or final order appealable under the provisions of:
* * * * * *
(9) 58 O.S. 1991 § 721 Subdiv. (7) * * *" [Emphasis supplied.]

33 Okl., 554 P.2d 785, 787 (1976).

34 See 12 O.S. 1991 § 952 (a). The pertinent terms of § 952(a) are:

"The Supreme Court may reverse, vacate or modify judgments of the district court for errors appearing on the record, and in the reversal of such judgment may reverse, vacate or modify any intermediate order involving the merits of the action, or any portion thereof." [Emphasis supplied.]

35 The terms of 25 O.S. 1991 § 2 are:

"Whenever the meaning of a word or phrase is defined in any statute, such definition is applicable to the same word or phrase wherever it occurs, except where a contrary intention plainly appears." [Emphasis supplied.]

36 The terms of 12 O.S. 1991 § 681 are:

"A judgment is the final determination of the rights of the parties in an action." [Emphasis supplied.]

37 12 O.S. 1991 § 681 , supra note 36.

38 12 O.S. 1991 § 952 (a), supra note 34.

39 Before Williams' right to the runs from the Woodward County lease came to be questioned, she had received approximately $47,000.00 in income from her purchased assignment. Her right to these runs is not an issue here.

40 Williams' contention that the deposit may not be distributed because the Estate has no personal money judgment against her is unsupported by any authority and is unpersuasive. The money in custodia legis was paid directly to the court clerk for the Estate's benefit after Williams' right to the purchased assignment came to be extinguished and she was hence no longer entitled to lease proceeds under her vacated assignment.

41 Mulvihill contends the present facts are analogous to those in M.E. Trapp Associated v. Tankersley, 206 Okl. 118, 240 P.2d 1091, 1094-1095 (1952), where Tankersley was adjudged to be entitled to some $91,000 and Trapp to approximately $86,000 in a joint fund. Trapp appealed and suspended the effectiveness of the judgment by posting a supersedeas bond. When the judgment was affirmed, Tankersley was allowed interest on his part of the principal for the time accrued since execution had been stayed by Trapp's supersedeas.

42 The pertinent terms of 12 O.S. 1991 § 968.1 are:

"No proceeding to reverse, vacate or modify any judgment or final order rendered in the district court . . . shall operate to stay execution, unless the clerk of the court in which such judgment or final order shall have been rendered, shall take a written undertaking, to be executed on the part of the plaintiff in error, to the adverse party with one or more sufficient sureties, as follows:
"1. When the judgment or final order sought to be reversed directs the payment of money * * *.
"2. When it directs the execution of a conveyance or other instrument * * *.
"3. When it directs the sale or delivery of possession of real property * * *.
"4. When it directs the assignment or delivery of documents * * *." [Emphasis supplied.]

43 The pertinent terms of 12 O.S. 1991 § 974.1 are: "Execution of the judgment or final order of any judicial tribunal, other than those enumerated in this article, may be stayed on such terms as may be prescribed by the court or judge thereof, in which the proceedings in error are pending. . . ." [Emphasis supplied.] See Creason, supra note 7 at 716. The trial court has discretion to suspend the effectiveness of a judgment pending appeal. Mapco v. Means, Okl., 538 P.2d 593, 595 (1975).

44 "Supersedeas" differs from "stay." Wilks v. Wilks, Okl., 632 P.2d 759, 763 n. 12 (1981). The former denotes a suspension of a judgment's effectiveness pursuant to an undertaking as a matter of statutory right [12 O.S. 1991 § 968.1 , supra note 42]. The latter is governed by a discretionary act of a trial or appellate court [12 O.S. 1991 § 974.1 , supra note 43].

45 Creason, supra note 7 at 716. For our definition of delay or moratory damages, see supra note 7.

46 For the terms of 58 O.S. 1991 § 721 (10), see supra note 3.

47 Creason, supra note 7 at 716.