TUESDAY MARCH 12, 1996
VIAN BANK TO BUY SUPERIOR FEDERAL BRANCHES
SUPERIOR TO RETAIN YORK STEET BRANCH
VIAN STATE BANK will become the owner of a Muskogee and Tahelquah
branch of SUPERIOR FEDERAL BANK in the proposal is approved by the
SUPERIOR FEDERAL will sell only its 1111 West Broadway location in
Muskogee, said Bruce McNeill of Fort Smith, Arkansas, president and
chief executive officer of SUPERIOR. The company will retain its branch
at 715 North York Street.
"When our parent company BOATMEN'S acquired BANK IV in Muskogee,
it made us over the limit of the market share we could own in Muskogee
and Tahlequah," he said.
VIAN STATE BANK CHANGING NAME TO ARMSTRONG BANK
NEW NAME HONORS EARLY BANK LEADER.
The board of directors of VIAN STATE BANK have announced the name
of the bank will change to
"The decision was based on the rich heritage of the bank in its earlier
years under the leadership of R.W. ARMSTRONG and the ARMSTRONG
FAMILY," said Duwayne Briley, Vian State Bank chief executive officier.
The name change will affect all VIAN STATE BANK locations in GORE,
MULDROW, STILWELL, VIAN, WARNER and WEBBERS FALLS. Two (2)
additional locations in MUSKOGEE and TAHLEQUAH will open in early
"We also felt the new name would be more appropriate and less
confusing to customers since we serve several communities besides
Vian," Briley said.
The name change will begin appearing on the banks within a few weeks.
All current employees will remain at the banks, Briley said.
The ARMSTRONG FAMILY has been a part of EASTERN OKLAHOMA since
before statehood, he added. Bank founder R.W. ARMSTRONG came to
OKLAHOMA TERRITORY from KANSAS in 1890. He attended the
University of Oklahoma from 1897 to 1898 and later finished his education
at the Indianola Business College in Ardmore.
Glen Armstrong, chairman of the board, first began working for the family
bank in 1937. He remembers part of his early job duties included cleaning
the spittons in the lobby and offices
FIRST STATE BANK OF VIAN v. ARMSTRONG.
1931 OK 366
300 P. 763
150 Okla. 60
Case Number: 20098
Supreme Court of Oklahoma
Cite as: 1931 OK 366, 150 Okla. 60, 300 P. 763
FIRST STATE BANK OF VIAN
¶0 1. Pleading--Sufficiency of Petition as Against General Demurrer.
A general demurrer admits the truth of all the facts well pleaded in the
petition, and the petition must be liberally construed, and all such facts
must be taken as true for the purpose of the demurrer; and where a
pleading states facts upon which the pleader is entitled to any relief
under the law, the general demurrer should be overruled.
2. Mortgages--Purchaser of Mortgaged Real Estate Held not Personally
Liable for Debt. Where A. purchased real estate by warranty deed,
consideration recited therein, and receipt thereof acknowledged, and the
deed recites that the property is free and clear of all incumbrances, etc.,
and B. held mortgage thereon, there was no contractual relation existing
between A. and B., and A. was not personally liable to B. for said debt.
3. Appeal and Error--Discretion of Trial Court in Vacating Default Judgment.
An application to set aside a default judgment filed after the term at which
it was rendered, is addressed to the sound legal discretion of the trial
court. Such discretion should always be exercised so as to promote the
ends of justice, and a much stronger showing of abuse of discretion must
be made where a judgment has been set aside than where it has been refused.
4. Same--Action of Court in Vacating Judgment Sustained.
The record examined; held, sufficient to sustain the judgment of the trial court.
Appeal from District Court, Sequoyah County; J. T. Parks, Judge.
Petition by R. W. Armstrong to set aside default judgment in favor of the
First State Bank of Vian. Petition by defendant to vacate default judgment
granted, and plaintiff appeals. Affirmed.
Roy Frye, for plaintiff in error.
W. A. Carlile, for defendant in error.
CLARK, V. C. J.
¶1 This is an appeal from the action of the district court of Sequoyah county
in vacating a judgment upon the petition filed in the original action by
R. W. Armstrong, one of the defendants in the said original action, which
judgment sought to be vacated was rendered by the district court of
Sequoyah county in an action styled, First State Bank of Vian against
George W. Whitmire, Kitty E. Whitmire, and R. W. Armstrong.
¶2 The petition to vacate the judgment alleged, in substance, that the said
R. W. Armstrong was defendant in the action; that he filed therein his
separate answer and disclaimer, and thereafter personal judgment was
rendered against him in said action; that the said judgment is void for the
reason that the petition failed to state a cause of action against him; that the
journal entry of judgment shows on its face that all of the defendants were in
default, when, in truth, he had filed his separate answer and disclaimer; that
default judgment was rendered against him therein; that he does not know
whether said judgment was procured by fraud or mistake, but alleges that it
was procured either by fraud or mistake, because he was not in default, and
had no opportunity to have his day in court; that the judgment was rendered
during a motion day of the court and not at a regular term of the court; that the
cause was never placed on a regular docket for trial; that he never at any time
assumed the indebtedness sued on; that he never at any time had any notice
of the hearing of the matter, and did not learn that personal judgment had been
rendered against him until about the 7th day of February, 1928; that the
personal judgment was rendered without the taking of any testimony; prayed
that the said judgment be set aside and vacated, and he be permitted to have
his day in court.
¶3 Petition to vacate judgment was filed March 17, 1928. Plaintiff in said
action, the First State Bank of Vian, a corporation, filed demurrer on the
grounds said petition to vacate did not state facts sufficient to constitute the
grounds for relief therein prayed for. Demurrer was overruled and exceptions
saved, and the plaintiff, First State Bank of Vian, filed reply to the petition of
defendant, R. W. Armstrong, by way of general denial. Upon a hearing the
trial court sustained the petition of the defendant, R. W. Armstrong, and
vacated the personal judgment against the said R. W. Armstrong. Motion for
a new trial filed, overruled, exception saved, and the First State Bank of Vian,
plaintiff below, brings the cause here for review.
¶4 The plaintiff in error's first assignment of error is:
"That the court erred in overruling the demurrer of plaintiff in error to the
petition to vacate said judgment of defendant in error."
¶5 A general demurrer admits the truth of all the facts well pleaded in the
petition, and the petition must be liberally construed, and all such facts must
be taken as true for the purpose of the demurrer; and, where a pleading
states facts upon which the pleader is entitled to any relief under the law, the
general demurrer should be overruled. Brookshire v. Burkhart,
141 Okla. 1, 283 P. 571.
¶6 And after a review of the petition to vacate the judgment and the exhibits
attached thereto, we hold that the same states facts sufficient to state a
cause of action.
¶7 The second contention of plaintiff in error is that the judgment cf the court
in granting the prayer of the petition to vacate is contrary to both the law and
the evidence governing this case.
¶8 The original action in which the judgment was rendered was brought by
plaintiff in error upon a note and mortgage, and for foreclosure of the real
estate mortgage. The note and mortgage, were executed by the codefendants
of defendant in error, and not by defendant in error herein.
¶9 The original petition alleged, with reference to the liability of the defendant
in error herein, as follows:
"Plaintiff states that the defendant, R. W. Armstrong, after the execution and
delivery of said note and mortgage, herein sued upon, entered into a contract
with the defendants George W. Whitmire and Kitty E. Whitmire, his wife,
whereby the said R. W. Armstrong purchased of and from said defendants the
above-described real estate, and did receive and accept a deed from said
defendants thereto, that part of the consideration of said deed was that the
said R. W. Armstrong should assume and pay the mortgage of this plaintiff,
and by reason of acceptance of said deed, the agreement in said mortgage of
plaintiff herein should be considered a portion of the purchase price for said
lands; that the defendant, R. W. Armstrong, did thereupon become liable and
bound to pay the mortgage debt to this plaintiff and that the interest of said
R. W. Armstrong in said lands is subject to the plaintiff's mortgage herein sued
upon. Prayed for personal judgment against R. W. Armstrong for the sum of $
1,297.86. * * *"
¶10 The defendant in error herein filed in the original action his answer and
disclaimer as follows:
"Comes now the defendant, R. W. Armstrong, in the above numbered and
styled cause, and for his separate answer to the petition of the plaintiff herein,
disclaims any right, title, or interest in and to the land, property or real estate,
be what it may, herein involved and for his grounds sets forth that he, the said
defendant, R. W. Armstrong, did on the 16th day of January, 1926, and prior to
the commencement of this action, release, quitclaim, and deed all his claim,
right, title or interest, in and to said lands, by giving a quitclaim deed to his
interest therein on the last above written to one W. W. Thorton, of Vian,
Oklahoma. Wherefore, said defendant, R. W. Armstrong, asks to be hence
discharged with his costs."
¶11 The judgment rendered in said cause, which the defendant in error made
application to have vacated, reads in part:
"Now, on this the 23rd day of June, A. D. 1927, the same being one of the
regular judicial days of the adjourned May, 1927, term. * * * there comes on
for hearing the above styled cause, * * * and the defendants having been
three times called in open court to appear, plead, or answer in said action,
comes not, but makes default: whereupon the court examines the return of
the officers filed herein, and finds that the defendant, * * * R. W. Armstrong,
have been duly and regularly served with summons; * * * thereupon said
defendants are adjudged to be in default and said cause is submitted to the
court upon the proof and evidence of the plaintiff from which the court finds
* * * "The court further finds that the defendant, R. W. Armstrong, is claiming
some right, title, interest in and to the premises hereinbefore described, by
reason of a certain contract entered into between the said defendants
George W. Whitmire and Kitty Whitmire and R. W. Armstrong, wherein the
said R. W. Armstrong accepted a warranty deed from the said George W.
Whitmire and Kitty Whitmire to the premises above described, and agreed in
said consideration of said warranty deed to pay the mortgage indebtedness
belonging to this plaintiff making said mortgage indebtedness a portion of the
consideration for the lands so purchased, whereby the said defendant,
R. W. Armstrong, has become personally liable to this plaintiff for the sums
above mentioned, by reason of said contract and agreement hereinabove
And the court therein rendered judgment against the defendants, including
defendant in error herein, for the debt.
¶12 The deed from the Whitmires to defendant in error, under which the
plaintiff in error claims that the defendant in error agreed expressly or
impliedly to pay the debt of the plaintiff in error, reads as follows:
"Know all men by these presents: That George W. Whitmire and Kitty
Whitmire, his wife, * * * in consideration of the sum of $ 380 in hand paid,
the receipt of which is hereby acknowledged, do hereby grant, bargain, sell,
and convey unto R. W. Armstrong the following described real property
and premises. * * *
"It is agreed that George Whitmire is to have the rents on this land for the
year 1928, together with all improvements thereon, and the appurtenances
thereunto belonging, and warrant the title to the same.
"To have and to hold said described premises unto the said parties of the
second part, heirs, and assigns, forever, free, clear and discharged of and
from all former grants, charges, taxes, judgments, mortgages, and other
liens and incumbrances of whatsoever nature. Signed."
¶13 This deed is a warranty deed, and shows on its face that he purchased
the lands free and clear, for the consideration therein named.
¶14 There are no contractual relations existing between the grantee in the
deed, R. W. Armstrong, defendant in error herein, and the mortgagee, plaintiff
in error herein, and no obligation on the part of defendant in error to pay the
mortgage debt as between the defendant in error and the plaintiff in error. If
any obligation existed at all to pay the mortgage debt, it was between the
grantee in the deed, defendant in error, and the grantors in the deed, and the
liability would have been to the grantors and not to the mortgagee.
¶15 The case of Sanderson v. Turner, 73 Okla. 105, 174 P. 763, relied upon
by plaintiff in error, was an action by grantor against the grantee in the deed.
The holding in that case is to the effect that, where land is sold subject to a
mortgage and the amount secured by the mortgage is deducted from the
consideration, there is an implied liability on the part of the purchaser, in the
absence of an express agreement, to assume the payment of the indebtedness
secured by the mortgage.
¶16 In the case of Beardsley v. Stephens, 134 Okla. 243, 273 P. 240 this court
in the opinion, at page 246, said:
"The assumption clause in a deed is inserted primarily for the protection of the
grantor, and where the debt is a personal obligation of the grantor, it is necessary
for his protection that the assumption clause be inserted, and not for the benefit
of the mortgagee. * * *
"It has also been repeatedly held that, where a grantee buys property subject to
a mortgage, which he does not assume and agree to pay, said grantee does not
become personally liable for the payment of the mortgage. Bailey v. State,
72 Okla. 203, 179 P. 615; Van Eman v. Mosing, 36 Okla. 555, 129 P. 2. These
cases are based on the theory that, unless it otherwise affirmatively appears, the
purchaser is buying only the equity of redemption."
¶17 And in the case of Johnson v. Davis, 146 Okla. 170, 293 P. 197, in the second
and third paragraphs of the syllabus, this court said:
"2. When one merely purchases the equity of redemption, simply buying the land
subject to the mortgage thereon, he does not become personally liable for the
"3. Where a mortgage debt forms a part of the consideration for the purchase of
land, the purchaser is bound to indemnify the mortgagor upon his payment of
the debt, though the purchaser has not expressly contracted to pay it, for equity
implies to him a contract of indemnity in favor of his grantor to the extent of the
mortgage debt, and he is liable to the grantor upon his being compelled to pay it."
¶18 In the case at bar, where defendant in error took a warranty deed for a
specified consideration, the receipt of which was acknowledged, no mention was
made of incumbrances existing on the lands, but, on the other hand, the grantor
warranted the title free and clear of all incumbrances. Under such circumstances
there was no contractual relation existing between the plaintiff in error,
mortgagee, and the grantee, defendant in error, and under the holdings of this
court the only obligation existing at all, if any, was the implied obligation of
grantee to indemnify the mortgagor, who was the grantor in the deed, upon his
payment of the debt.
¶19 In the case at bar, as shown by the judgment sought to be vacated,
judgment was rendered by default, and specified that the defendant in error had
failed to appear, plead, or answer in said cause, when in truth and in fact he had
filed answer and disclaimer in said cause.
¶20 With reference to discretion of trial court in setting aside default judgment,
this court in the case of Lott v. Kansas Osage Gas Co., 139 Okla. 6, 281 P. 297,
said in the first paragraph of the syllabus:
"An application to set aside a default judgment filed after the term at which it was
rendered, is addressed to the sound legal discretion of the trial court. Such
discretion should always be exercised so as to promote the ends of justice and
a much stronger showing of abuse of discretion must be made where a
judgment has been set aside than where it has been refused."
¶21 And in the case of State v. State ex rel. Shull, 142 Okla. 293, 286 P. 891,
fifth paragraph of the syllabus, this court defines "abuse of judicial discretion"
"Abuse of judicial discretion is a discretion exercised to an end or purpose not
justified by and clearly against reason and evidence."
¶22 We, therefore, hold that the action of the trial court in granting the petition
was not a discretion exercised to an end or purpose not justified by law and
clearly against reason and evidence; and that such discretion was exercised
so as to promote the ends of justice. Hence, the judgment of the trial court in
granting the petition of plaintiff below and vacating the judgment is in all
¶23 LESTER, C. J., and RILEY, HEFNER, CULLISON, SWINDALL, ANDREWS,
McNEILL, and KORNEGAY, JJ., concur.
Citationizer© Summary of Documents Citing This Document
Oklahoma Supreme Court Cases
Cite Name Level
1935 OK 204, 41 P.2d 861, 171 Okla. 79, HUDSON v. SMITH Discussed
1933 OK 478, 25 P.2d 300, 165 Okla. 155, PARLETTE v. EQUITABLE FARM
MORTGAGE CO. Discussed
Citationizer: Table of Authority
Oklahoma Supreme Court Cases
Cite Name Level
1912 OK 845, 129 P. 2, 36 Okla. 555, VAN EMAN v. MOSING Discussed
1918 OK 390, 174 P. 763, 73 Okla. 105, SANDERSON v. TURNER Discussed
1919 OK 49, 179 P. 615, 72 Okla. 203, BAILEY v. STATE Discussed
1930 OK 168, 286 P. 891, 142 Okla. 293, STATE v. STATE ex rel. SHULL Discussed
1930 OK 351, 293 P. 197, 146 Okla. 170, JOHNSON v. DAVIS Discussed
1929 OK 361, 281 P. 297, 139 Okla. 6, LOTT v. KANSAS OSAGE GAS CO. Discussed
1929 OK 428, 283 P. 571, 141 Okla. 1, BROOKSHIRE v. BURKHART Discussed
1928 OK 222, 273 P. 240, 134 Okla. 243, BEARDSLEY v. STEPHENS
Harrison Thomas LaTour
LaTour Genealogical Research Services