My objection to the majority opinion is based upon provisions of the statute and former decisions of this court, which I do not think admit of the conclusion reached therein. My views on the subject will be discussed under three propositions.
1. The judgment being in foreclosure of a real estate mortgage, the execution is special and must conform to the judgment of the court, otherwise it is contrary to the provisions of 12 O. S. 1941 § 732 and 12 O.S. 1941 § 903[12-903].
2. The execution is contrary to 12 O. S. 1941 § 760 in that the judgment was entered under the provisions thereof where the mortgage contained the term "appraisement waived" and therefore no order of sale or execution could be issued until six months from the date of the judgment.
3. Under 12 O.S. 1941 § 686[12-686], as amended by chapter 12, sec. 1, S.L. 1941, no general execution can be issued until the sale of the mortgaged premises and a hearing on application determining the amount of deficiency judgment remaining due.
12 O.S. 1941 § 732[12-732] defines the different kinds of executions. 12 O.S. 1941 § 903[12-903] provides that an execution must conform to the judgment of the court. 12 O.S. 1941 § 760[12-760] is the provision relating to the issuance of an order of sale or execution where the words "appraisement waived" are inserted in any deed, mortgage, bond, note, bill, or written contract and the court renders judgment thereon.
These statutes have been construed by several decisions of our court. In Tolbert et al. v. State Bank of Paden,30 Okla. 403, 121 P. 212, the court considered an order of sale issued within the six months in a foreclosure proceeding where the phrase "appraisement waived" was used. Therein it is stated:
"In this case these questions are squarely presented: Can a mortgage creditor sell property under a mortgage, where the right of appraisement has been waived by the debtor, before the expiration of six months after judgment of foreclosure, by having the property appraised? And, is a judgment of the court, in such case ordering a sale within the six months period valid? We believe both questions must be answered in the negative. In both the note and mortgage suit appraisement is waived. This clause is a material part of the contract between the parties. Under the statute, supra, permitting the waiver by a debtor of his right to an appraisement of his property before sale, where it is done, the creditor obtains the right to sell the property under judgment without any appraisement, and therefore regardless of how much or how little it may bring. But the debtor, when he surrenders his right to the creditor, obtains one himself — a right that is oftentimes more valuable than the one he surrenders. He knows when he contracts in his mortgage that no appraisement will be required that in case he cannot pay the debt when due, if suit is brought, 'no order of sale or execution shall be issued upon such judgment until the expiration of six months from the rendition of the judgment'."
In Zweigart v. Strahan et al., 73 Okla. 144, 175 P. 213, paragraph 2 of the syllabus states:
"Where a judgment is rendered foreclosing a mortgage on land, and also for the amount of indebtedness secured by the mortgage, the court should provide in the judgment for the sale of the mortgaged property and for execution for any balance due after sale, in which event any execution issued must conform to the judgment."
In Riddle v. Gamble, 99 Okla. 161, 226 P. 106, 109, the judgment creditor in a foreclosure proceeding caused a general execution to issue. The court said, in part: *Page 255
". . . and whether the plaintiff in error will be benefited or not, or whether it will be a useless and vain thing to have this special execution issued and the judgment of the court followed in the manner directed by the court, the plaintiff in error is entitled to have this judgment satisfied in conformity with the decision and under the statute law of this state, and to hold otherwise would be depriving him of a statutory right guaranteed to him by the law governing this jurisdiction."
In Bartlett Mortgage Co. v. Morrison, 183 Okla. 214,81 P.2d 318, in discussing the right to issue an execution after a foreclosure proceeding, the court said:
"It can thus be seen that these delays do not depend upon the absence of a personal judgment, nor does the judgment rendered in foreclosure lack the nature of a personal judgment solely because by law there may be postponement of sale and a delay in the right to issue general execution."
Other cases from this jurisdiction treating of the issue involved are: Price et ux. v. Citizens' State Bank et al.,23 Okla. 723, 102 P. 800; Richmond v. Robertson et al.,50 Okla. 635, 151 P. 203; Martin v. Hostetter et al., 59 Okla. 246,158 P. 1174; Paschal Investment Co. v. Atwater, 174 Okla. 356,50 P.2d 357; Aycock v. Harriman et ux., 185 Okla. 590,95 P.2d 110.
In Wheat Belt Building Loan Ass'n v. Armstrong et ux.,140 Kan. 541, 38 P.2d 145, the Supreme Court of the State of Kansas, considering the right to issue a general execution under a judgment in foreclosure, stated:
"Where an action is brought to foreclose a mortgage, and a personal judgment for the amount due is rendered and an order made for the sale of the mortgaged real estate, the order of sale must issue, and, if the proceeds arising from the sale are not sufficient to pay the judgment, costs, and taxes, a general execution may then, and not before, issue for the balance."
It follows, therefore, that the judgment being in foreclosure of a real esstate mortgage containing the phrase "appraisement waived," the execution must conform to the judgment of the court and cannot issue until six months after the date thereof, and this is true whether the judgment creditor attempts to waive the provisions of the statute and the term of the mortgage and judgment as to the appraisement, or whether he attempts to waive or surrender the lien and proceed by a general execution. Therefore, I am of the opinion that the trial court erred in refusing to quash the execution and in confirming the sale.
I am authorized to announce that Justice OSBORN and Justice ARNOLD concur in the views herein expressed.