MERWINE'S CHAPTER I. PROCEDURE BY WHICH THE COURT ACQUIRES POWER TO TRANSFER REAL ESTATE FROM ONE As the purpose of this work is to set forth the law and procedure in Oklahoma by which title to real estate is transferred from one person to another by act of parties, or order of the court, or judicial sale, and the procedure in all the forms of litigation concerning real estate, only so much of the law of pleading and practice as pertains to the giving or transferring of title in such actions or proceedings, will be set forth in this book. For the rules of law and of code pleading applicable to such actions or procedure, reference must be had to the proper textbooks on this subject.1 Sec. 2. Duty of counsel and court in proceedings for sale or transfer of real estate by judicial process. Much of the practice and procedure by which real estate is transferred from one person to another by order of court, or judicial sale, is of such a nature as to lead counsel who may be conducting the proceedings to think it does not require any particular care or attention. Frequently, counsel and courts are imbued with the notion that the work connected therewith is comparatively easy and does not require any great care or deliberation from their hands. Carelessness upon the part of such counsel and such courts in such actions has been, and is now, the source of many defective land titles in this State, and is now, and has been, the source of much vexatious and expensive litigation. Because actions of this character are seldom contested, the petition is carelessly prepared, orders are asked for and given without investigation by the courts, parties are not properly served and brought into the case. The examiner of real estate title in this State, when scrutinizing title passing through the courts, knowing how careless counsel is apt to be in cases of this character, should scrutinize the proceedings from the filing of the petition to the deed to the purchaser with the most careful attention. Too much cannot be urged on the bench and bar of this State to attend to such proceedings with the utmost care. The following upon this topic is from the pen of an eminent jurist and text-writer: 1 Kinkead's Code Pleading; Kinkead's Practice; Bates' Pleading, Practice, Parties and Forms; Whittaker's Forms. "While it is manifestly the policy of the law to uphold judicial sales made without fraud, so as not to deter purchasers by encouraging the apprehension that their substantial rights and interests may be sacrificed to technical considerations— while courts will give every effect to insure the protection of innocent purchasers in collateral proceedings, even in cases of gross errors arising out of blunders or carelessness of the probate courts or their officers-it is apparently of the gravest importance that every step taken in the subjecting of real estate to sale by courts be as nearly as possible in literal compliance with the method pointed out by the statute upon which the proceeding is based. Where particular forms are appointed for the execution of a power, however immaterial they may appear in themselves, that cannot be dispensed with. It is pernicious error, and fruitful of trouble and mischief to suppose that any vague, unverified statement of circumstances is sufficient to authorize a sale of real estate, if the applicant and the judge know all about the matter; or that the good faith and honesty with which the application is made are sufficient to safeguard against ruinous complications and litigation that may follow oversight and mistake. The anxiety of courts to vindicate the validity of judicial sales should not be relied upon as a pretext for the carelessness of counsel and courts, and guardians, executors, administrators, trustees in bankruptcy, assignees for the benefit of creditors, receivers of courts, or the supineness of probate courts in the several steps necessary for the sale of real estate. Even if the sale should be good as against collateral attack-and it is distressingly uncertain as to what extent the trial and appellate courts will go in this direction-yet, many acts of commission and omission which will not be allowed to invalidate the transaction in collateral investigation may, in a direct proceeding, subject such parties and representatives to serious liability and the estate to loss and delay, and all parties concerned to vexatious and ofttimes ruinous litigation. No part of the work of such representatives claims more careful attention, and demands more imperatively, the advice and assistance of a competent professional man than his relations to and duties concerning the real estate of a decedent and the real estate of minors and incompetents."' 2 Sec. 3. Jurisdiction of courts Judicial sale-Proceedings, sale void without. In the examination of title to real estate sold under judicial decree, one of the most important inquiries is: Has everyone who had an interest in the property at the time suit was begun been brought into the case by summons or other proper notice, and, if so, did the court make the proper order necessary to divest him of his title thereto? It is elementary that everyone must have his day in court. A court has no power to pass upon anyone's property rights without giving him a chance to be heard.3 Any order as to the rights of anyone in real estate sought to be sold by the court, though he may be a party defendant who has not been served with summons, or has not entered his appearance by some method pointed out by law, is void as to such party. He may assert his rights at any time and in any manner, unless barred by limitation of time. Counsel conducting any proceeding in which real estate is sold should use the utmost diligence in searching the records of title to the real estate sought to be sold, to secure the names of any lienholders, whether by mortgage, judgment, mechanic's lien or liens, or any other kind, whether by attachment, foreign execution, vendor's, and everyone claiming an interest in the title thereto, and every such person holding such claim or interest in the title thereto, should be made a party defendant, and be required to set forth such lien or interest. The petition should ask that they do this upon penalty of having their 2 Woerner on 1021. Administration, 3 It is an elementary principle that no man's rights should be adjudged until he has had his day in court and has had an opportunity to be heard. Trimble v. Longworth, 13 O. S. 438. |