55 Neb. 13 | Neb. | 1898
Mary' J. Cleland and Isaac G. S. Cleland are husband and wife and for some years prior to the commencement of this action occupied the real estate here in controversy as a family homestead, the title thereto being in Mrs. Cleland. In 1889 Cleland borrowed from the Hamilton Loan & Trust Company $6,500, giving as security therefor two mortgages on this property, executed by himself and purporting to have been signed and acknowledged by his wife. The money thus obtained was intended to be used, and in fact was used, in paying off mortgages on the premises then existing and of unquestioned validity. Afterwards the loan and trust company
We entirely agree with appellant that her signature to the mortgage in question was forged and that the notarial certificate of her acknowledgment was false. These facts are indisputably established by the proof. Nevertheless, the decree of the district court is right and must be affirmed. It is an inflexible rule that a party seeking relief in equity from a judgment taken against him by default must exhibit a defense to the action and also show that such judgment is the result of fraud, accident, or mistake, unmixed with fault op negligence on his part. A judgment will not be set aside on the application of a party who has, by his own laches, failed to avail himself of an opportunity to defend. This salutary rule rests on principle and authority, and its rigid enforcement is necessary for . the repose of society, by
But appellant contends that sbe was justified in assuming that tbe action in wbicb sbe was served with summons was brought to foreclose tbe Deitz mortgage and that, therefore, sbe was not negligent in failing to appear and defend. Tbe case of Young v. Morgan, 9 Neb. 169, is instanced in support of this contention, but we do not think it is in point. In that case it appears that Mrs. Young bad signed a note in favor of tbe plaintiffs in tbe action, and when sued sbe refrained from making a defense, having good reason to believe that her genuine obligation was tbe basis of tbe suit. In tbe language of Maxwell, J., delivering judgment, “Tbe plaintiff bad tbe right to presume that tbe note with her genuine signature was tbe one upon which tbe suit was instituted, and it was not necessary to suppose that tbe crime of forgery bad been committed by affixing her name to notes of wbicb sbe bad no knowledge.” Besides, in that case it was alleged in tbe petition and admitted by tbe demurrer that tbe plaintiffs knew when tbe judgment was taken that tbe notes in suit were mere forgeries. In tbe case at bar it seems that tbe Hamilton Loan & Trust Company bad no knowledge prior to tbe
Affirmed.