59 Neb. 53 | Neb. | 1899
Paul F. Olark brought suit in the court below, alleging in bis petition that on February 28, 1891, be was tbe owner in fee of lots C, D, E and F, Bigelow’s subdivision of lots 11 and 12, block 27, in tbe city of Lincoln; that the defendant forcibly and wrongfully took possession
1. That on February 24, 1891, plaintiff, by purchase at sheriff’s sale, became the bona fide owner in fee simple of the premises, subject to the mortgage liens of the defendant hereafter described.
2. That on August 1, 1889. the defendant negotiated and made a loan of $30,000 on the property to one M. I. Bond, the then owner thereof; that it subsequently, and beforé plaintiff purchased the premises, made said Bond another loan thereon, for $22,000, each of which loans was secured by a mortgage upon the lots in controversy.
3. That the defendant, by consent and permission of Mrs. Bond, on October. 20, 1891. entered into possession of the premises and held the same until February 15, 1895, without the knowledge, consent or acquiescence of plaintiff.
4. That Mrs. Bond was in possession of the property from the time of the completion of the hotel in 1890 until October 20, 1891; plaintiff received his sheriff’s deed on August 2, 1891, and instituted a forcible detainer suit againsTMrs. Bond to recover possession of the property, which resulted in a judgment of ouster being rendered against her on October 20, 1891; that the defendant was not a party to that litigation.
6. That the defendant held possession as mortgagee from October 20,1891, to February 15, 1895, collected the rents, and applied the same to its own use.
7. That the fair and reasonable rental value while the defendant held possession was the sum of $12,000.
8. That the sum of $4,178.56 was expended by the defendant in repairs, taxes and insurance, leaving a balance in its hands unaccounted for of $7,821.44, and for which amount the defendant is liable to account to the plaintiff.
9. That plaintiff had no knowledge or notice of any agreement between Mrs. Bond and the defendant whereby she gave possession to the defendant.
The judgment pronounced was that the defendant apply the balance, $7,821.44, upon the mortgages given it by Mrs. Bond. Plaintiff moved for judgment in his favor on the special findings for the amount of the rents, which was overruled, and he has brought the record to this court, presenting said ruling for review.
It is the established doctrine in this state that a mortgagor of real estate is ordinarily entitled to the possession thereof until confirmation of foreclosure sale., and by reason thereof he has a proprietary interest in the rents and profits. See Orr v. Broad, 52 Nebr., 490. It appears iPomYlFTfindings of the trial court that the defendant, as the mortgagee, entered into possession of the mortgaged premises with the consent and permission of Mrs. Bond, the mortgagor, and collected the rents and applied the same on the mortgage debts, taxes, insurance and repairs. We consider it plain that under the facts, as found, Mrs. Bond could not have recovered rents from the defendant, since her consent to its acquiring possession of the property created an exception to the general rule above stated relative to the rights of mortgagors. Did the granting of permission of the mortgagee to take possession of the premises prevent the plaintiff from re
In the brief of defendant it is argued that an action in assumpsit will not lie against the defendant, as the relation of landlord and tenant did not exist between it and the plaintiff. We do not controvert this doctrine. It is sufficient to say that the action is tort and not assumpsit. See Lundgren v. Crum, 47 Nebr., 242. If the plaintiff had been in lawful possession as mortgagee, then it would have been entitled to deduct from the rents the amounts necessarily expended for taxes, insurance and repairs; but it can not withhold moneys to pay these items, since it was a trespasser, seizing the property without the consent of Clark, the then owner of the premises. See Mahoney v. Bostwick, 30 Pac. Rep. [Cal.], 1020.
For the reasons stated the judgment of the district
Reversed and remanded.