40 Neb. 569 | Neb. | 1894
This action was brought by the appellee in the district court of Chase county for a foreclosure on past due detached coupons. The bond and mortgage securing the same were made to the American Loan & Trust Company of Ashland, Nebraska. The coupons which evidenced the obligation to pay interest on the bond above referred to were, of course, made payable to the same payee as was the bond, and each was secured by the same mortgage. The loan and trust company sold the bond, with its coupons, to a third party, and guarantied that payment of each should be made as it fell due. The defendant Fred Hoffman having failed to pay several of these coupons, they were taken up by the loan and trust company. Subsequently these coupons were assigned to Frederick J.
It is argued that the holder of the bond to which_ the coupons were originally attached was a necessary party in this proceeding. No satisfactory reason is given for this contention, for, as between such party and the loan and trust company, there was the relation of creditor and debtor in a certain limited sense; that is to say, the loan and trust company was a guarantor to the purchaser that the bond and its interest-evidencing coupons should be paid as stipulated. When the loan and trust company took up these coupons, it, as between itself and the party who had purchased the coupons, had but discharged an obligation to pay, provided payment was not made by the party primarily liable. Upon the coupons so taken up the loan and trust company was entitled to foreclose the mortgage, subject to the rights of the party in whose favor the discharged guaranty had existed. There was no necessity of making the paramount incumbrancer a party. (Forrer v. Kloke, 10 Neb., 373; White v. Bartlett, 14 Neb., 320; Stratton v. Reisdorph, 35 Neb., 314.) In Studebaker Bros. Mfg. Co. v. McCargur, 20 Neb., 500, it was held by this court that the assignment of one of .a series of notes
Affirmed.