77 Neb. 795 | Neb. | 1906
Lead Opinion
Tiedgen owned a tract of land upon which he executed a mortgage to secure a promissory note payable to the Omaha Loan & Trust Company. After the note had become due and had lost its negotiable character under the law merchant, the payee assigned it to the Boston Safe Deposit & Trust Company, soon after executing also to the latter company a formal assignment of the mortgage. Subsequently the Boston company sold and transferred the note and mortgage to the plaintiffs, who are still the lawful holders of them, but without formal assignment, except as already mentioned.. The defendant Reimers became the owner of a second mortgage on the land and foreclosed it upon the equity of redemption, of which he
The facts thus briefly stated and their legal effect, as thus indicated, are, as we understand, not in dispute. They gave rise to the first of two questions presented by this record of the dismissal by the district court of an action to foreclose the mortgage. The case reached this court by appeal. 'This question, which was debated at length by counsél both in their briefs and orally at the bar, is whether Reimers is a subsequent purchaser within the meaning of section 16, ch. 73, Comp. St. 1903, and, as such, charged with constructive notice of the transfer of the paper by the record of the assignment before he made his payment. There is good reason for regarding him as such. This court held in Ames v. Miller, 65 Neb. 204, that an assignment of a mortgage is, without doubt, a “deed” within the meaning of section 46 of the statute, because it affects the title to, and transfers an interest in, real estate, and is entitled to be made of record by the provisions of the act. This being so, one who purchases a release or surrender of the interest and becomes also entitled to an instrument of record evidencing that fact
The remaining question is one of fact, concerning which, however, the evidence is not conflicting, viz.: Was the Omaha company an agent of the Boston company for the collection of the debt in controversy, it being admitted by counsel, as Ave understand them, that such an agent would have possessed authority to bind the plaintiffs also? This question should, Ave think, be ansAvered in the affirmative. The transaction and manner of dealing between the Omaha company and the Boston concern, briefly stated, Avas this: The former executed its obligations, called “debentures,” to the latter for a loan, of money, and de
We are therefore of the opinion that the judgment of dismissal was not erroneous, and recommend that it be affirmed.
By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of dismissal be
Affirmed.
Rehearing
The following opinion on rehearing was filed June 4, 1908. Judgment of affirmance vacated and judgment of district court reversed:
1. Mortgages: Equity of Redemption, Purchaser of. “A mere purchaser of the equity of redemption of mortgaged lands is given all the protection that the statute was designed to afford him, if he is permitted to deal with safety with one who appears by the record to be the owner of a mortgage securing a nonnegotiable debt.” Bottle v. Tieügeii, cmte, p. 795, adhered to,
2.-: Assignment: Payment. And where such purchaser pays the principal sum of a note and mortgage to the original mortgagee, after an assignment of such mortgage to a third party has been duly recorded in the office of the register of deeds of the county in which the lands described in such mortgage are situated, and the original mortgagee fails to pay over such money to the record assignee of the mortgage, such payment to said original mortgagee will not, in the absence of proof of agency, estoppel, or the like, operate as a discharge of the debt secured by such mortgage.
3. -: Foreclosure: Pleading: Sufficiency. An answer which alleges that on a certain day the defendant in a suit for the foreclosure of a mortgage, having no knowledge or notice of an alleged transfer of the note and mortgage, in order to relieve his premises of the apparent incumbrance thereby created, paid the original mortgagee the amount of said mortgage, and that the original mortgagee accepted said sum in full payment and satis*800 faction of the note and mortgage sued on, and that at said time said original mortgagee had lawful authority to receive the same, does not constitute a plea of either agency or estoppel, and is not sufficient to entitle such defendant to prove that said original mortgagee, in accepting said payment, was acting as the agent of an assignee of said original mortgagee who had, prior thereto, placed his assignment of said mortgage on record.
This is a rehearing of an appeal from a decree of-the district court for Madison county denying a foreclosure of the mortgage in controversy and dismissing plaintiff’s suit. On the former hearing we affirmed the judgment of the lower court.
The facts, briefly stated, are as follows: In August, 1891, defendant Tiedgen borrowed from the Omaha Loan & Trust Company, of Omaha, |3,200, and as security therefor executed to said company the mortgage in controversy. The note which the mortgage was given to secure Avas payable five years after date. The Omaha Loan & Trust Company, which Ave Avill hereinafter designate as the Omaha company, sold the note and mortgage to some eastern investor, Avho carried the loan until its maturity, when, the note not being paid, the Omaha company, in compliance Avith its guaranty, repurchased the note and mortgage. No recorded assignment of either the sale or repurchase Avas made. Trior to the maturity of the note above referred to the defendant Reimers had commenced proceedings to foreclose a second mortgage upon the same property. Expecting that he Avould be compelled to purchase the property under his proceedings to foreclose his second mortgage, Mr. Reimers paid the last of the maturing interest coupons of the note secured by the first mortgage. After the maturity of the first mortgage note, and after it had repurchased the same, the Omaha company sent one of its employees, named Hayden, to see Sir. Reimers about their mortgage. Mr. Hayden requested Mr. Reimers to sign the necessary papers for an extension of the loan for another period of five years, but Mr. Reimers
On August 31 Mr. Reimers again wrote the Omaha 'company as follows: “I wrote you a week ago about release of my mortgage No. 6,986, which was paid rAugust 1, 1901. I have not heard from you since, and you will please attend to it, or notify me what is the matter.” To this letter Mr. Reimers received the following answer: “Omaha, Sept. 3, 1901. Dear Sir: Please pardon delay in sending forward papers in your loan. The causes have
When the Omaha company received the money from Mr. Reimers’ banker, it did not remit the same to the Boston company, but deposited it to the general credit of the Omaha company on its open account in the Omaha National Bank of Omaha. On December 11, 1901, the Omaha company became insolvent, and passed into the hands of a receiver, w’ > at once took possession of all of the assets of the company. The Boston company then, under the terms of its trust agreement, sold all of the notes and mortgages of the Omaha company which it then held as security for the debenture holders, the plaintiffs being the purchasers of the note and mortgage in controversy at such sale. Defendant Reimers refusing to pay plaintiffs the amount of the mortgage, claiming that he had already paid it once to the Omaha company, and that the Omaha company was entitled to receive the payment, this suit was commenced.
The order granting this rehearing reads: “Rehearing allowed on the question as to whether payment to the original mortgagee discharged the debt.” By this ruling-on the motion for rehearing, the further consideration of the case is limited to that one proposition. On the original hearing defendant placed great reliance upon our statute, which reads: “The recording of an assignment of a mortgage shall not, in itself, be deemed notice of such an assignment to the mortgagor, his heirs, or personal representatives, so as to invalidate any payment made by them, or either of them, to the mortgagee.” Comp. St. 1905, ch. 73, sec. 39. Defendant argued that there was no evidence in the record of any actual notice of the assignment of the mortgage to Mr. Reimers, and that, under this section of the statute, constructive notice by the record ,of the assignment did not bind him. Our former opinion
On the question now under consideration the defendant contends that the payment by Mr. Reimers to the Omaha company discharged the debt, for the reason that, by the course of the dealings between the parties, the questions as to whether or not the Omaha company was the agent of the Boston company for the collection of the debt, or whether the Boston company had knowingly permitted the Omaha company to hold itself out to the defendant as its agent for the collection of the debt, are questions of fact for the determination of the court, and that, in the light of the record before us, we cannot disturb the finding of the district court in favor of the defendant on that question. The questions of agency or estoppel are not raised by defendant’s answer, and are, therefore, not available to defendant under the pleadings as they now stand. For a proper understanding of the situation of the parties in this respect we again refer to the trust agreement between the Omaha company and the Boston company. By the terms of that agreement, so long as the Omaha company promptly, and Avithout any default, paid all maturing debentures of any series, and all instalments of interest upon any of such debentures, it was to have the right to collect, retain and use the interest.upon all the mortgages which it had deposited Avith the Boston company, in the came manner and with the same effect as if such agreement had never been entered into. It will be seen, there
Furthermore, we think the evidence shows that Mr. Reimers had received actual notice on numerous occasions that the Omaha Loan & Trust Company had parted with the principal note, and was no longer the owner and holder of the same. Exery six months there was mailed to Mr. Reinlers a notice that the interest on the loan would be due on a certain date, which notice contained this clause: “Please send to the address given above the herein stated amount of interest, by draft on New York, Chicago, or Omaha, post office order or by registered letter. Personal checks not accepted. The remittance should be made at this office as much as ten days before the interest is
We come now to the main point which compels us, reluctantly we confess, to hold that, under the evidence now before us, the payment by Mr. Reimers to the Omaha company did not discharge the debt. The formal assignment of the mortgage on February 1, 1898, by the Omaha company to the Boston company was duly spread upon the records in the office of the register of deeds in Madison county on February 12, 1898. In the face of the notice thus given by the record of this assignment, Mr. Reimers could not, under the pleadings in this case, .three and one-half years later, pay the principal sum of the note and mortgage in controversy to any but the Boston company. If he paid it to anyone else- he did so at his peril. Having paid the money to the Omaha company we are compelled to hold that he thereby made the Omaha company his agent for the transmission of the money to the Boston company. The Omaha company having failed to do its duty in that regard, the loss must fall upon the one who was negligent in the matter. If, in the end, the defendant Reimers shall be compelled to pay this mortgage a second time, it will- indeed be a great hardship. ■ On the other hand, if the plaintiffs, who represent the holders of the debentures which were secured by this mortgage, and who took their debentures in good faith, relying upon the security deposited for their benefit, are defeated in this suit, then they will suffer a great hardship. It is a
After a full dismission, we are all agreed that we ought not to enter a final judgment on this hearing, but that the cause should be reversed and remanded to the district court for further proceedings according to law.
By the Court: For the reasons stated in the foregoing opinion, the former judgment of this court is vacated, the judgment of the district court reversed and the cause remanded for further proceedings according to law.
Reversed.
Concurrence Opinion
I concur in the conclusion reached.