48 Neb. 646 | Neb. | 1896
Prior to June, 1890, Nathan'B. Cotrell was the owner of a certain lot in David City, upon which there was a
It is elementary law that the transfer of a note secured by mortgage transfers the mortgage security to the purchaser without any assignment of the mortgage itself, and that where there are several notes secured by the same mortgage the assignment of one of the notes is an assignment of a proportionate interest in the mortgage. (Webb v. Hoselton, 4 Neb., 308; Studebaker Bros. Mfg. Co. v. McCargur, 20 Neb., 500.) By the assignment of one of the three notes by Cotrell to the plaintiffs they therefore became entitled to the benefits of the mortgage, and Cotrell was, after the assignment, without any authority to release the mortgage so as to deprive plaintiffs of their security. Nevertheless, the entry of satisfaction by the original mortgagee will protect a subsequent mortgagee in good faith without notice of the fact that the debt was assigned or the release unauthorized. (Whipple v. Fowlerr 41 Neb., 675; Mathews v. Jones, 47 Neb., 616.) In the case-cited certain earlier cases which might be taken to imply a different rule were distinguished. In addition to those cases the case of Bridges v. Bidwell, 20 Neb., 185, seems to afford some color to a contrary rule; but in that case the mortgage remained of record unsatisfied, and a third person, with such mortgage standing unsatisfied of record, took a joint conveyance from the mortgagor and the mortgagee. It is quite evident that the case proceeded upon the ground that the purchaser was charged with notice of the assignee’s rights from the fact that the mortgage appeared of record unsatisfied. We think, therefore, that the rule in Whipple v. Fowler, supra, is not in conflict with any other decisions and it should be ad
The plaintiffs complain that the court erred in permitting the supplemental answer to be filed. There was no error in this, because while the facts therein set up constituted no defense to the action, they did, as will now be stated, require the relief granted plaintiffs to be different from that which should have been granted in the absence of such facts. The plaintiffs urge that there was no proof offered in support of some of the averments of the supplemental answer; but the reply thereto, either by a failure to deny or by negatives pregnant, admits all the essential averments. The plaintiffs were not made parties to the foreclosure suit, and were not bound by those proceedings. The mere fact that they had notice of its pendency did not make them parties or bind them by the decree. This is elementary. The foreclosure and sale were therefore utterly ineffectual to bar plaintiffs’ mortgage. A junior mortgagee who has not been made a party to the proceeding foreclosing the senior mortgage has thereafter a right to redeem from such senior mortgage;
The judgment of the district court is reversed and the cause remanded, with directions to take an account of the amount due upon the Stoddar mortgage and to permit the plaintiffs to redeem.
Reversed and remanded.