56 Neb. 171 | Neb. | 1898
On October 17, 1889, J. Herbert Van Closter executed ■and delivered to'John L. Miles and James Thompson three coupon bonds, each in the sum of $5,000, and payable five years after date, and to secure the payment thereof, executed and delivered to the payees a mortgage of lot 27 in Rees Place, an addition to the city of Omaha. The mortgage was filed for record in the proper office of Douglas county, October 18, 1889.- October 28, 1889, one of the notes or bonds was sold and transferred to the plaintiff, herein one of the appellants. December 2,1889, another of the bonds was sold and transferred to W. 0. Putnam, and by him to Laura A. Raff, Lida B. Raff, and Mary F. Raff. The other of said bonds was purchased by Daniel K. Rearney December 8,1889, and duly transferred to him, and from him Mary R. Rearney became the owner, December 25, 1889. Of each note or bond and the accompanying interest coupons, Miles & Thompson, by the indorsement of transference, became the guarantors of the payment thereof. The assignments of the mortgage were not recorded; hence, of record, Miles & Thompson were the apparent owners and holders thereof. Subsequent to the execution of the aforesaid notes and mortgage, Yan Closter made improvements on the mortgaged property, during the progress of which he incurred a large indebtedness; and mechanics’ liens, amounting in the aggregate to about $10,000, were filed and perfected against the property. On August 2, 1890, Van Closter executed and delivered to H. H. Henderson three promissory notes, in total to the amount of $8,455.75, and a mortgage on the premises to which we have hereinbefore referred, as security for the payment of the notes. These notes were sold, indorsed, and delivered to the Omaha National Bant, appellee herein. It is not dis
The first question presented in argument was in relation to the force and effect on the rights of plaintiffs in this suit of the decrees in Case No. 303, Docket 37. The judge who presided at the trial of that action, and decided the issues, also heard and determined the points of controversy in this one. Of the findings made in the present suit was the following: “The court further finds that as to the allegations, in the answers and cross-petition of the answering defendants herein, that the interest and priority of the lien of the plaintiffs herein, under and by virtue of the mortgage under which they claim, were adjudicated and determined by this court, and by the final
The bank, appellee herein, intervened, as we have before stated, and alleged the execution of the agreement of October 28,1891, between Miles & Thompson and Yan Oloster, and asserted that its effect was to render the lien of the mortgage under which Miles & Thompson had declared inferior and second to the one under which the bank claimed rights. In the decrees it was adjudicated that the rights of Miles & Thompson, then in litigation, were postponed to those of the bank; but the priorities between the plaintiff and appellants herein and the bank, under the mortgages assigned to and held by them
The coupon bond which, as evidence of indebtedness, furnished the groundwork of this action had long prior' to the time of the said contract been sold and transferred to the appellants; and the mortgage in suit, as an incident to the notes or debts, had followed their transfer or assignment, and was the security of the assignees in the transactions. (Cram v. Cotrell, 48 Neb. 646; Whipple v. Fowler, 41 Neb. 675.).
The note or debt is the principal thing and the mortgage a mere incident thereto, and the party to whom the first is transferred becomes thereby the owner of the second. (Daniels v. Densmore, 32 Neb. 40.) The mortgagee, after he has assigned the note and debt, cannot release the incident thereto—the mortgage, so as to defeat the rights of the assignee. (Daniels v. Densmore, supra.) Neither can he release the debtor from all liability or from liability to a deficiency judgment, so as to bind his assignee of the debt. There is no question here of the rights of a Iona fide subsequent purchaser of incumbrances, where, as in Whipple v. Fowler, supra, and some
The proposition advanced for the bank is that it was entitled to tender and pay the debt secured by the prior mortgage, and be subrogated to the rights of the owners and holders of the evidences thereof, and that the release of the personal liability was an invasion of this right, which operated to diminish or lessen it, and to decrease what would be obtained by reason of such payment, and that equity demands that the lien for the liability which was thus partially destroyed be postponed to the one which, in point of time and record, was its inferior. If the litigation now was between Miles & Thompson, as owners and holders of the debt and mortgage in suit, and the bank in the assertion of its rights as assignee of the Henderson notes and mortgage, the cases cited, namely, Coyle v. Davis, 20 Wis. 593, and Sexton v. Pickett, 24 Wis. 346, would lend support to the propositions advanced which we have just stated. Whether the doctrine is correct or not we need not and do not decide. In the matter in hand it appears that prior to the time of the contract of October 28, 1891, Miles & Thompson had sold and assigned the debt, and with it the accompanying mortgage, to the plaintiffs and appellants herein, and then had no control over either,' or power or authority to release or in any manner deal with either; and it seems clear that the appellants, as assignees of the debts and mortgage, could pursue their rights under either or both and recover as fully and completely as if the contract alluded to had never been in existence; and the bank, if it paid the debt to appellants, and, by subrogation, succeeded to their rights, would have received them thus undiminished and
By some of the expressions employed in the decree in this cause, color is lent to the idea that the trial court had determined that Miles & Thompson had acted in the capacity of agents for the appellants in many portions of the transactions and matters involved herein, and appellants had become bound by such acts., the effects of which were the postponement of the lien of the mortgage in suit to that of the one owned by the bank. A finding that Miles & Thompson were agents for the appellants in any acts which might have the force to work such a postponement, if any was expressed,—which, from the language used in the decree is, to say the least, doubtful,— would have been without support in the evidence; hence this view must be discarded.
As we have before stated, there was filed for the bank at the time of its intervention in Case No. 303, Docket 37, a notice of lis pendens, and it is now contended that this operated to bind appellants by the decree in that case, the same as if they had been made parties thereto by service of process. The portion of section 85 of the Code of Civil Procedure, in relation to notice of lis pendens, upon which the argument here is based, was declared unconstitutional in the opinion in the case of Sheasley v. Keens, 48 Neb. 57, and we are earnestly urged to again examine the question, and some very forcible arguments are produced to induce a belief of the error in that decision, and the constitutionality of the part of the section involved. As we have hereinbefore decided that even if it be conceded that the appellants by the answer filed in their names were parties to Case No. 303, Docket 37, the finding of the trial court in this case that .their rights were not adjudicated in that case was correct, and must be approved. The fact that a notice of lis pendens was dnly filed and recorded is without force, as its utmost effect would be to render a decree in the case in which it was perfected binding as to parties against whom the
The judgment of the district court herein appealed from was erroneous and must be reversed and judgment entered here of the priority of the lien of the mortgage foreclosed for appellants over that of the lien of the mortgage foreclosed for the bank.
Judgment accordingly.