Bond v. Dolby, 17 Neb. 491

Bond v. Dolby

17 Neb. 491

Neb.

1885

Check Treatment

Reese, J.

This is an action for the foreclosure of a mortgage. The appellant purchased the land of the mоrtgagor, and is made a party defendant to the action. The petition alleges that as a part of thе purchase price he assumed and agreed ta *492pay the debt secured by the mortgage and thereby bеcamé personally liable to the plaintiff for the payment of the same. The answer of appellаnt denies the allegations of the petition and alleges that the mortgagor, Dolby, never owned the premises described in the mortgage. This allegation is denied by the reply.

From the evidence introduced upon the trial it аppears that Dolby, the mortgagor, attempted to secure the mortgaged premises by a homesteаd entry, and while occupying them he executed the mortgage. The B. & M. R. R. Co. contested his right to the land, and the deсision was rendered in favor of the R. R. Co., the land being held not subject to homestead entry. Afterwards Dolby purchasеd the land from the R. R. Co., by contract, and ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍subsequently sold it to appellant, transferring the contract by assignment exеcuted by Dolby and wife. In support of the allegation in the petition that Andrus assumed and agreed to pay the debt, Dolby testifies as follows:

Q. State whether or not you purchased the claim of the B. & M. R. R. Co. to the land ? If so, when ?

A. I did; I purchased it from the B. &. M. R. R. Co. ■about June, 1883.

Q,. About what time did you sell the land to the defendant, Andrus?

A. About the first of October, 1883.

Q,. Did you tell him about the mortgage to Bond?

A. I did.

Q. What arrangement, if any, did you make with Andrus about paying Bond’s mortgage ?

A. I made arrangements to pay it by settling with him for two hundred dollars.

Q. Was any money left in 'his hands ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to pay it, аnd if so, how much?

A. There was two hundred dollars left with him for that purpose.

*493Andrus testified that he did not agree to pay the mоrtgage, but that two hundred dollars was deducted out of the purchase price and retained by him with which to pay the unpaid taxes on the 'land and “ fight” the mortgage. Thus a question of fact was presented to the trial court for decision upon conflicting testimony.

In view of the rule so well established by this court, that it will not disturb findings of fact by the trial court upon conflicting testimony, we cannot molest this finding. It is urged by appellant that under the pleadings the burden of' proоf is upon plaintiff and he must establish the fact of the agreement by a preponderance of evidenсe. This is true, and was doubtless considered by the trial court when deciding the ease. There was testimony sufficient, if uncоntradicted, or if believed by the trier of fact, to sustain the finding. The witnesses, with the exception of Dolby, whose deposition was read, were before the court. Their manner of testifying, their demeanor while upon the stand, with the surroundings, were all considered by the learned judge who heard the case. The question of the weight of their testimony wаs for him to decide. Blackburn v. Ostrander, 5 Neb., 219. McCune v. Thomas, 6 Id., 488. Andrus alone appeared and made a defense. This defense was made only in so far as it could affect the mortgage. No effort was made to release ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Dolby from the obligation of the debt. The court might well hesitate before concluding that Dolby would furnish money to Andrus for the purpose of “ fighting ” the mortgage and still be liable himself for the payment of the debt evidenced by the note. The finding-of the court that appellant made the alleged agreement- and is liable thereon must stand.

An attorney’s fee of $35.75 was allowed by the сourt. Appellant insists that this was error. The note provides for the payment of an attorney’s fee of ten per cent in case action should be brought thereon. It was executed the 5th day of May, 1879. The act approved February 24, 1879,. *494repealing the law allowing attorney’s fees, having no emergency clause, did not take effect until after the execution of the note. Constitution of Nebraska, article 3, title “ Legislative,” § 24; also seе § 1, chapter 88, Compiled Statutes. Dow v. Updike, 11 Neb., 96. Hardy v. Miller, Id., 399.

The note provided for the payment of “interest at the rate of twelve per cent per annum from date until paid.” ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍By the decree of the court interest was computed at that rate to the time of the decree. This was correct. Kellogg v. Lavender, 15 Neb., 256. The decree also provides that it shall draw intеrest at the same rate. This is complained of by appellant. At the time of the execution of the note the law of this state made twelve per cent per annum the legal rate, if contracted for by the pаrties. The law also provided that, “interest on all decrees and judgments for the payment of money shall be from the date of the rendition thereof, at the rate of ten dollars upon each one hundred dollars annually, until the same shall be paid; Provided, That if said judgment or decree shall be founded upon any contract, either verbаl or written, by the' terms of which a greater rate of interest, not exceeding the amount now allowed by law, than ten per centum shall have been agreed upon, the rate of interest upon such judgment or decree shаll be the same as provided for by the terms of the contract upon which the same was founded.” General Statutes, chapter 34, § 3, page 446. This law was amended by the act of February 27, 1879, which took effect June 1st of that year. Section 3 above quoted being the law at the time the contract was made the rights of the parties must be dеtermined by it.

By the finding of the district court, that Andrus assumed and agreed to pay the note secured by the mortgage as a part of the contract between him and Dolby, the question as to whether Dolby had a mortgageable interеst in the land becomes an immaterial one. The debt existed whether the mortgage was valid or not. The retention of the money *495and agreement to pay the debt by ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Andrus would fix his liability.

The decree of the district court is therefore affirmed.

Decree affirmed.

The other judges concur.