35 Neb. 840 | Neb. | 1892
This controversy had its inception in an action by the-plaintiffs in error in the district court of Saline county to-quiet their title to the property in controversy, to-wit, a quarter section of land in said county, as against the defendants in error. They alleged in their petition that the-defendants claimed title through a deed from George Betts which was void and insufficient to pass any title whatever,, for the reason that said property was at the time in question the homestead of the said George Betts and his wife-Eliza, who did not sign or join in the execution thereof. The defense relied upon was an estoppel as against both plaintiffs. On a final hearing the district court dismissed the petition for want of equity and entered a decree for the defendant. An appeal was taken to this court, where-the decree of the district court was reversed and judgment entered here for plaintiffs in accordance with the prayer of the petition. (See Betts v. Sims, 25 Neb., 166.) The facts involved in that controversy, so far as they are material to. this, are fully stated in the opinion cited above. Subsequently the defendant in error made application to this court for a modification of the decree against him so as to. allow him to be subrogated to the rights of Charles Bidleman, who held a mortgage on the property in controversy, and which he, defendant, had paid in full while in good faith, relying upon his title through the aforesaid deed from George Betts. Said application was granted, but it appearing that an accounting would be necessary in order-to fully determine the rights of the parties with respect to
“And now on this 24th day of November, 1890, the same being a portion of the October term of this court, this cause came on to be decided upon the submission heretofore had of said cause, and the court, being now fully advised in the premises, finds that the findings of fact heretofore made by this court are, and each of them is, fully sustained by the evidence submitted upon this hearing. This court further finds that the defendant F. L. Sims> believing in good faith thpt he was the owner at the time of the southeast quarter ¡ S. E. -J) of section eight (8), in township eight (8) north, range one (1) east, sixth (6) principal meridian, did, on the 4th day of March, 1883, pay off the amount due on a certain mortgage made on said premises by Joseph Brown to Charles Bidleman of date September 1, 1880, which said mortgage was duly filed for record in the office of the county clerk of Saline county, Nebraska, on September 24, 1880, and duly recorded in Mortgage Record No. 11, on pages 388 and 389 of said office. That said mortgage was made with the knowledge and assent and at the request of George Betts and Eliza Betts, and the proceeds were used for their benefit, and in- making said mortgage the court finds that Joseph Brown was acting as the trustee of said George Betts and Eliza Betts. * * * That the amount so paid on March 4, 1883, by F. L. Sims was eleven hundred and fifty dollars, with • eight per - centum • per - annum .; interest thereon from the preceding 1st day of September, which interest so-paid was in amount fifty-seven dollars, and that the said F. L. Sims is entitled to be subrogated as to said
The first point made in the brief of plaintiffs in error.is that the order of this court modifying the decree in their favor did not include the so-called Patton claim; hence, the question whether the defendant should be subrogated to the rights of Patton with respect to money paid by the latter to Brown, his grantor, was not involved in the second hearing. It is not necessary to look to the order remanding the case for the issues, since the question of the defendant’s right to offset the $1,000 paid by Patton to Brown at the special instance and request of the plaintiffs was distinctly raised by the pleadings in the supplemental proceeding.
2. The evidence before the district court was not preserved, hence the only question now open for consideration is whether the decree is warranted by the facts as found by the court. Of the right of the defendant to be subrogated to the equities of Bidleman there can be no doubt. From the findings of the court on the first hearing, which are set out at length in the opinion previously filed in the case, and which the court in this proceeding finds to be. true, it ¡appears that in the year 1876 the plaintiffs mortgaged the land in controversy to the New England Mortgage Security Company to secure the sum of $600, borrowed by them, which indebtedness bore interest at the rate of ten per cent, and in the year 1877 they mortgaged said land to one R. S. Bentley to secure the sum of $500, borrowed by them, which indebtedness bore interest at the rate of twelve per cent. Both plaintiffs signed and acknowledged . the said mortgages. In the year. 1880 plaintiffs procured
3. It is urged finally that the defendant was not entitled to be subrogated to the rights of Patton as to any claim for the $1,000 paid by the latter to Brown, and that the district court erred in allowing that amount as an offset against the sum of $1,236, found due them on account of rents and for waste by the defendant. By reference to-the finding, set out above, it appears that plaintiffs requested and induced Patton to purchase the premises from Brown and to pay the $1,000 for their benefit and by-their direction. It is further found that Patton conveyed said property to the defendant “ with all his right, title, interest, and claim that he held against George Betts and Eliza Betts, as to the lands above described,” etc. The facts aa found amount - to an assignment by Patton of whatever cause of action he may have had against plaintiffs, and which is available to the defendant in this action.
The next and only remaining question is that of the lia
Affirmed.