ZENITH LIMESTONE CO. v. EXCHANGE TRUST CO.

ZENITH LIMESTONE CO. v. EXCHANGE TRUST CO.
1935 OK 1032
51 P.2d 823
175 Okla. 185
Case Number: 24128
Decided: 10/22/1935
Supreme Court of Oklahoma

ZENITH LIMESTONE CO. et al.
v.
EXCHANGE TRUST CO.

Syllabus

¶0 1. Mortgages--Execution--Sufficieney of Appraisement and Return in Mortgage Foreclosure.
When an execution is levied upon lands and tenements under the provisions of section 703, C. O. S. 1921 (sec. 450, O. S. 1931), It is not necessary that the appraisers, in making their return of the appraisement of the property levied upon, should separately mention the buildings affixed to the land when the same were considered by the appraisers as a part of the real estate in their estimation of the real value of the property taken in execution.
2. Same--Sale Held Properly Confirmed.
Record examined: Judgment affirmed.

Appeal from District Court, Tulsa County; Harry L. S. Halley, Judge.

Mortgage foreclosure by the Exchange Trust Company against the Zenith Limestone Company et al. Objections to confirmation of sale overruled, and defendants appeal. Affirmed.

Jos. L. Hull and W. D. Oalkins, for plaintiffs in error.
Yancey, Spillers & Fist, by Joe Seger, for defendant ia error.

MCNEILL, C. J.

¶1 This appeal concerns the confirmation of a sheriff's sale of property under foreclosure of mortgage.

¶2 The Exchange Trust Company, on March 5, 1932, recovered a judgment against the Zenith Limestone Company in an action to foreclose a mortgage upon certain real estate and personal property belonging to the Limestone Company. The sheriff of Tulsa county advertised said property for sale in the Tulsa Daily Legal News, a newspaper published in the city of Tulsa. At the sale the Exchange Trust Company, mortgagee, plaintiff below, bid $ 14,700 for the real estate, which was more than two, thirds of its appraised value, and also bid $ 20,000 for. the personal property which was offered for sale without appraisement.

¶3 The Limestone Company filed objections to. the confirmation of said sale. The trial court overruled these objections, confirmed said sale, and this appeal, prosecuted by the Zenith Limestone Company, challenges the judgment of the trial court in overruling its objections to the confirmation of said sale.

¶4 Counsel for the Limestone Company present two assignments of error:

(1) That the property was not advertised for sale in accordance with that portion of section 455, O. S. 1931, which was an amendmerit to section 708, C. O. S. 1921, by the 1.927 Legislature, and which provision reads as follows:

"* * * Provided that in counties now haying a population of one hundred ten thousand (110,000) or more, according to the last federal census, the advertisement shall be published in some newspaper published in the city or township where said lands and tenements lie, or if there be no newspaper in such city or township, then in some newspaper published in the county."

(2) That the plaintiff failed to properly differentiate between the real property and personal property, both types of which were included in the mortgage; that a portion of the property listed as personal property in the order of sale which included the buildings was sold without appraisement when such property constituted a part of the real property covered by the mortgage.

¶5 The appellant, Zenith Limestone Company, urges under its first proposition that the city of Tulsa lies within two townships, to wit, Lynn Lane township and Red Fork township, which are divided by the Arkansas river; that the city of Tulsa lies within Lynn Lane township and West Tulsa within Red Fork township; that in West Tulsa there is published the West Tulsa News, a newspaper qualified to publish legal notices; that the property was advertised for sale by publishing the notice in the city of Tulsa, although the property was located in another township, to wit, Red Fork township, in which was published the West Tulsa News.

¶6 The Exchange Trust Company, appellee. contends that the portion of said section 455, supra, is unconstitutional and void and that said provision does not apply in this case for the reason that the West Tulsa county did not have a population sufficient to come within the requirements of the statute.

¶7 The proof does not show that the West Tulsa News is a newspaper published in Red Fork township. The property in question was located in Red Fork township, but West Tulsa is a part of the incorporated city of Tulsa, and Tulsa Daily Legal News are published in the city of Tulsa. The referred to section of the statute has no application in the case at bar.

¶8 The mortgage in gave the Exchange Trust Comnpany a lien upon an entire rock crusher entire rock crusher and specifically recites and sets cut the property involved without attempting to separate the real property from the personal property. The order of sale attempts to separate the real property from the personal property and directs that certain real property, specifically listed, should be appraised and sold and tht the personal property as listed should be offered for sale without appraisement. The mortagage does not waive appraisement. The property listed as personal property in the order of sale shows as follows:

"1 Storage bin for 1000 tons; buildings for housing, floors, etc., forerusher; motors, switchboards conveyors and office.

"1 stone building 18 feet x 20 feet.

"1 8-room modern house."

¶9 The notice of sheriff's sale recited that, if the real estate did not bring sufficient to pay the indebtedness in full, then certain personal property would be offered for sale, and among the property listed as personal there were mentioned the aforesaid buildings. The evidence shows that the appraisers appraised these buildings, which were listed as personal property, as part of the real estate. The buildings were thus considered as part of the real estate and appraised as such and used in the sale of the real estate under appraisement and were again specifically mentioned and considered in the sale of the personal property. In fact, the buildings were twice considered in the sale of the property levied upon, and the appellant, defendant below, has no cause to complain.

¶10 The judgment of the trial court is affirmed.