18 Neb. 121 | Neb. | 1885
Plaintiffs, as the widow, heirs at law, and administrators of Job Buchanan, filed their petition in the district court,
It is further alleged that on or about the 13th day of April, 1874, and while the foreclosure suit was pending, one John Jones, who was the son and heir of Samuel Jones, and who was one of the defendants in the foreclosure proceeding, with a fraudulent intent, executed and delivered ta
An injunction was prayed for restraining the execution of the deed by the sheriff, and that he be decreed to execute the deed to Armstrong or Buchanan; that their title be quieted as against defendants and all persons claiming under them, or that the mortgage from John Jones be declared null and void, and to create no lien upon the premises adverse to plaintiffs, and that the decree of foreclosure and sale by the sheriff be annulled and set aside, and for general relief.
To this petition the defendants answered, admitting the death of Samuel Jones, and the representative capacity of plaintiffs, the execution of the note and mortgage by him, their assignment to William Null, the rendition of the decree of foreclosure in his favor,- the assignment to James Armstrong and his assignment to John Armstrong, and the assignment by him to Job Buchanan, and the execution of the sheriff's deed, but deny that Samuel Jones was the owner of the land in question at the time of the execution of the mortgage. They also admit the execution of the mortgage to - them by John Jones, and that, at that time they were in partnership, the subsequent foreclosure proceedings by them, the execution of the contract with Armstrong, but allege that it was afterwards rescinded, They admit that they claim to be the owners of the decree, and that they demand a deed from the sheriff, and allege
The answer then reviews the allegations of the petition, and plead various estoppels which we do mot deem it necessary here to notice.
After trial the plaintiffs filed an “ amendment to their petition to make it correspond with the facts proven,” by which they allege that after the rescission of the contract between Armstrong and Ashby and Colby, on the 12th of February, 1880, another agreement was made between Armstrong and Ashby in which it was agreed between them that in consideration of what Armstrong had paid Ashby, amounting to over f>700, Ashby was.to put Armstrong in possession of the property in controversy, and was to ■carry out the original contract made between Armstrong and Ashby and Colby, and that Ashby was to proceed to' have the property sold and purchased in the ..ame of Armstrong, and the deed made to him, and that, relying upon the'agreement with Ashby, he paid no further attention to the matter, but paid to Ashby the said sum of §700. That defendants did bid in the land, but in their own name instead of his.
A trial was had which resulted in a finding and decree by the court, setting aside the sale made by the sheriff, but holding that the lien created by the mortgage and decree of foreclosure was a valid and subsisting lien in favor of defendants, dissolving the injunction, and ordering the resale of the property. From this decree plaintiffs appeal.
According to our view of the case the decree of the district court cannot stand. By the pleadings and proofs, it Is established beyond any question that John Jones, while
It cannot be said that the bare execution of this mortgage was a disaffirmance of the conveyance to Samuel Jones, for two reasons:
First. Before the simple execution of a deed made by a person after coming of age will amount to a disaffirmance of a conveyance made during minority, the second deed must be of as high a character as the first. That is, it must appear on its face to undo that which has been done by the former deed. If the first is an absolute conveyance, so must the second be in order to work a disaffirmance of the first within itself. Jackson v. Burchin, 14 Johns., 124. Jackson v. Carpenter, 11 Id., 539. Bool v. Mix, 17 Wend., 132. Eagle Ins. Co. v. Lent, 1 Edw., 301. Tucker v. Moreland, 10 Peters, 58.
Again, we think it is well established, both upon prin-. ciple and authority, that the second deed must be so inconsistent with the first that both deeds cannot stand, in.*129 order of itself to work a disaffirmance of the first. McGan v. Marshall, 7 Humph., 121. Eagle Ins. Co. v. Lent, 6 Paige, 635. Schouler’s Domestic Relations, 588 (2d Ed.)
, “ In this state a mortgage of real estate is a mere pledge or collateral security creating a lein upon the mortgaged property, but conveying no title nor vesting any estate, either before or after condition broken.” Davidson v. Cox, 11 Neb., 250.
Second, At the time of the execution of the mortgage to defeudants, John Jones was one of the joint owners of the land with the other heirs of Samuel Jones (he being then deceased), subject only to the mortgage made by Samuel to Armstrong, the life estate of his mother, and the claims of the creditors of his father, if any existed, assuming that he-did not desire to disaffirm the conveyance to Samuel., This interest was a mortgageable one and was subject to> the decree in the foreclosure suit. Jones on Mort., § 1411, 1314.
There is nothing shown by way of declaration or recital in the mortgage which would indicate any intention of the mortgagor to disaffirm any prior act of his. It may also be noted as a circumstance tending to throw some light on his intention at the time of the execution of the mortgage, that on the 16th day of May, 1876, he conveyed the real estate in- question to one M. ~W. Thompson, and in the deed he expressly excepts from the covenant of warranty the mortgage executed by his father to John Armstrong, the exception being as follows: “Subject,"however, to a mortgage executed by Samuel Jones to John Armstrong, dated January 5, 1871, and recorded in the records of Gage county, book B, page 161.” The deed also excepts the mortgage executed to defendants. It is true that the date is referred toas “January 5th, 1871,” while the mortgage to Armstrong was dated July 4th, 1871, but it is proven that Samuel Jones never executed but the one mortgage to John Armstrong, and there can be no doubt but that it was the
It follows that the decree of the district court must be reversed, and the decree in the case of Griggs & Ashby against Jones and others, together with all proceedings thereunder, set aside and vacated, and Armstrong or his grantee be permitted to make his defense.
Judgment accordingly.