Oklahoma Farm Mtg. Co. v. Cesar

11 Citing cases

  1. In re Draper

    No. 13-08-13199 JA (Bankr. D.N.M. Mar. 12, 2010)   Cited 1 times

    See Carmichael v. Rice, 49 N.M. 114, 119, 158 P.2d 290, 293 ("A tender need not be kept good where it clearly appears that the tender if made will not be accepted." citing Am.Jur. Tender, p. 234, sec. 28); See also, Shaner v. West Coast Life Ins. Co., 73 F.2d 681, 384 (10th Cir. 1934) (refusal to accept an offer of tender excuses the necessity to tender payment); Oklahoma Farm Mortgage Co. v. Cesar, 178 Okla. 451, 62 R.2d 1269 (Okla. 1936) (the longstanding rule is that tender is excused where it is known that the tender would not be accepted by the creditor); Telemark Development Group, Inc. v. Mengelt, 181 F.Supp.2d 888, 892 (N.D.Ill. 2001) ("[t]he long-standing rule is that tender is excused where it is known that the tender would not be accepted by the creditor"). For these reasons, the Court finds that the Default Order should be set aside; that the escrow be reopened; that a document be recorded in the real property records of Socorro County to negate the filing of the Special Warranty Deed; and that deeds be turned over to the Escrow Agent so that the Escrow Agent can continue to hold the deeds according to the terms of the Contract.

  2. Federal Deposit Ins. Corp. v. Tidwell

    1991 OK 119 (Okla. 1991)   Cited 40 times
    Holding that in a foreclosure action, Oklahoma courts consider the final judgment to be "the order determining the amount due and ordering the sale to satisfy the mortgage lien"

    The right to an attorney's fee in a foreclosure proceeding depends upon a final judgment. Oklahoma Farm Mortgage Co. v. Cesar, 178 Okla. 451, 62 P.2d 1269, 1278 (1936); Miller v. Liberty Nat'l Bank Trust Co., 391 P.2d 269, 272 (Okla. 1964).

  3. Swan-Sigler, Inc. v. Black

    1966 OK 90 (Okla. 1966)   Cited 15 times
    Holding in an action to foreclose a mechanic's lien, where defendant obtained no affirmative relief prior to plaintiff's voluntary dismissal, defendant is not a prevailing party entitled to attorney fees

    " The cases of Oklahoma Farm Mortgage Co. v. Cesar, 178 Okla. 451, 62 P.2d 1269, and Pierson v. American National Bank of Shawnee, Okla., 325 P.2d 426, 428, were also cited by the court in the Miller case in support of the above statement. This court also held in the Miller case, supra, in the second paragraph of the syllabus by the court:

  4. Miller v. Liberty Nat. Bank T. Co. of Ok. City

    391 P.2d 269 (Okla. 1964)   Cited 6 times
    In Miller v. Liberty National Bank and Trust Co. of Oklahoma City, Okla., 391 P.2d 269, plaintiff bank brought an action against the maker of a note and real estate mortgage and the mortgagees who had assigned the note and mortgage to the bank as collateral for a loan to the mortgagees.

    The statute, Sec. 176, describes the person entitled to the attorney fee as being one "for whom judgment is rendered." In Oklahoma Farm Mortgage Co. v. Cesar, 178 Okla. 451, 62 P.2d 1269, this court held the plaintiff's mortgage to be valid, and in determining defendant's right to an attorney fee under the above statute said: "* * * Thereunder no attorney's fee may be allowed the attorney for the defendant unless the final judgment be against the lien claim."

  5. Pierson v. American National Bank of Shawnee

    1958 OK 111 (Okla. 1958)   Cited 13 times
    In Pierson v. American National Bank of Shawnee, Okla., 325 P.2d 426, we stated that, as a general rule, attorney's fees are not recoverable in the absence of statute or specific contractual authority.

    For the defendants to be entitled to attorney's fees, the judgment must be against the lien claim. Oklahoma Farm Mtg. Co. v. Cesar, 178 Okla. 451, 62 P.2d 1269. Neither does the abandonment of the claim for a personal judgment entitle defendants to an attorney's fee.

  6. Alfrey v. Richardson

    204 Okla. 473 (Okla. 1951)   Cited 15 times
    Stating that tender was waived where it was clear that "if a strict legal tender had been made, defendant would not have accepted the money"

    Defendant was in no manner prejudiced because of the inaccuracy in this finding. We have so held in Oklahoma Farm Mortgage Co. v. Cesar, 178 Okla. 451, 62 P.2d 1269. In that case it appears that plaintiff sought to recover on a promissory note and foreclose on a mortgage given to secure the same.

  7. Grayson v. Crawford

    189 Okla. 546 (Okla. 1941)   Cited 16 times
    Allowing reasonable time for performance where the parties intended for payment to be made at some future date and where it was apparent that payment on demand was not contemplated

    2. Plaintiff argues, however, that the contract, being oral, is rendered invalid by the statute of frauds, citing Levy v. Yarbrough, 41 Okla. 16, 136 P. 1120; Boepple v. Estill, 181 Okla. 159, 72 P.2d 798; Bahnsen v. Walker, 89 Okla. 143, 214 P. 732; and Oklahoma Farm Mortgage Co. v. Cesar, 178 Okla. 451, 62 P.2d 1269. We do not consider these cases in point, as none of them involve equitable liens, or questions involving similar principles.

  8. Ponca City Bldg. Loan Co. v. Graff

    117 P.2d 514 (Okla. 1941)   Cited 9 times

    No attorney's fee may be allowed the attorney for the defendant unless the final judgment be against the mortgagee who is claiming a lien. Oklahoma Farm Mortgage Co. v. Cesar, 178 Okla. 451, 62 P.2d 1269. Section 11021, O. S. 1931, 42 Okla. St. Ann. ยง 176, will govern in this regard when the case is retried.

  9. Cesar v. Oklahoma Farm Mtg. Co.

    188 Okla. 659 (Okla. 1941)   Cited 3 times

    This is the third time this litigation has been before this court. See Cesar v. Oklahoma Farm Mortgage Co., 93 Okla. 254, 220 P. 590; Oklahoma Farm Mortgage Co. v. Cesar, 178 Okla. 451, 62 P.2d 1269. The judgment herein involved was rendered pursuant to the mandate of this court in the last-cited case.

  10. Martyn v. 1st Fed. Sav. L. Ass'n

    257 So. 2d 576 (Fla. Dist. Ct. App. 1972)   Cited 25 times
    Defining "sale" based on dictionary definition to mean "a contract whereby property is transferred from one person to another"

    Brown v. True, 1923, 123 Me. 288, 122 A. 850; Rutherford Nat. Bank v. H.R. Bogle Co., 1933, 114 N.J. Eq. 571, 169 A. 180. Sleeth v. Sampson, 1923, 237 N.Y. 69, 142 N.E. 355; Flyer v. Sullivan, 1954, 284 App. Div. 697, 134 N.Y.S.2d 521; Smith v. Mills, 1956, 207 Or. 546, 296 P.2d 481, 298 P.2d 185; Hatlestad v. Mutual Trust Life Ins. Co., 1936, 197 Minn. 640, 268 N.W. 665; Oklahoma Farm Mortgage Co. v. Cesar, 1936, 178 Okla. 451, 62 P.2d 1269. Putting together F.S. 1969, sections 697.02 and 725.01, F.S.A., the meaning of terms already discussed, and Florida's court opinions concerning the quality, function, and application of mortgages, we opine flatly that the statute of frauds, F.S. 725.01, F.S.A., does not bar a suit for damages upon an oral agreement to execute and deliver a mortgage upon real estate. A mortgage transfers no title, right of possession, or interest in land.