79 Neb. 355 | Neb. | 1907
In 1896 the plaintiff was the owner of 400 acres of land in Clay county, which he sold to the defendant John Schroeder. Schroeder obtained a loan from one Thompson for a considerable portion of the purchase price, securing the same by mortgage on the land purchased, and also by a mortgage upon a half section of land in Jefferson county.- For the remainder of the purchase price, the
At the inception of the above proceedings the title was in John Schroeder; but afterwards such conveyances were had that the record title passed to the defendant Elizabeth Schroeder, who died intestate February 16, 1903. On March 24, 1903, John Schroeder was appointed administrator, and appeared in the action, filing an answer to the plaintiff’s petition, as such administrator. On the 25th day of January, 1904, the district court for Olay
1. With this case there was submitted a motion to strike from the bill of exceptions the first 45 pages. It appears that the trial of the action was begun, and the testimony included in that portion attacked by this motion was taken, and the case submitted at the February, 1906, term of the Jefferson county district court, which adjourned sine die on June 8, 1906; that during that term, on May 24, the submission was vacated, and an amended petition filed, 15 days given for answer, and the case continued until the June term of the court, when the case was tried, and a decree entered June 20. At the latter hearing, we find that the court made an order permitting the defendant to offer all the testimony on the former trial, which we understand to mean the first 45 pages of the bill of exceptions. There was no exception nor objection to this order, and we think the motion should be overruled.
2. The plaintiff claimed the right to be subrogated to the lien of the mortgage made by the Schroeders to Thompson upon the Jefferson county land under the rule that, where there are several creditors having a common
When this case was again before the district court, the defendant interposed the defense that prior to the execution of the mortgage upon the Jefferson county land to Thompson there was an oral agreement between Schroeder and Thompson that this mortgage was not given as security for the debt generally, but only for so much thereof as should remain unpaid and unsatisfied after exhausting the security in the Clay county land. This question was determined adversely to the defendants in the district court, and again upon appeal to this court in Anthes v. Schroeder, 74 Neb. 172, and would certainly be res judicata but for the fact that the defendant Elizabeth Schroeder, Avho held the fee in the land, died pending the appeal, and the defendant John Schroeder, aaTlo had been appointed administrator, was substituted for her in the district court. It appears that Elizabeth Schroeder died intestate, leaving heirs Avho are defendants in this action, but Avere not made defendants in the action above referred to. It is contended by these heirs that they are not bound by the decree in the Olay county case, but that the question must be considered as to these defendants upon the merits in this action. It is the settled doctrine of this court that a judgment rendered against a person after his death is reversible if the fact and time of
It is insisted that the Jefferson county mortgage was executed after the plaintiff’s mortgage. We have carefully examined the evidence, and are satisfied that these mortgages took effect, simultaneously. While the negotiations for the loan from Thompson were pending, the plaintiff held the title to the Olay county land, Schroeder having .merely a contract with him for its purchase. It appears that, to enable Schroeder to make the loan from
In our judgment, the decree of the district court should be affirmed, and it is so recommended.
By the Court: For the reasons stated in the foregoing-opinion, the judgment of the district court is
Affirmed.