84 Neb. 60 | Neb. | 1909
The facts in this case are fully stated in the former opinion, 82 Neb. 315. In that opinion it was held that the defendants weje mortgagees in possession, and that, since plaintiff had not tendered or offered to pay the amount of the mortgage debt, he could not maintain ejectment. A motion for rehearing was filed, accompanied by a request that, if the court still held upon a rehearing that the defendants were mortgagees in possession, the plaintiff might be permitted to amend his petition so as to offer to pay the amount properly due under the mortgage. A rehearing was allowed, the case argued and submitted to the court, as augmented by the adoption of the constitutional amendment, and is now before us for decision. In the view the court takes, it becomes necessary to consider several points argued, but not decided, at the former hearing.
From this resume of the former holdings of this court it appears that, while the doctrine of Aultman, Taylor & Co. v. Obermeyer and Johnson v. Vandervort, supra, that a deed direct from husband to wife is void- in law, has never been directly repudiated or the cases overruled, the fact is that in every case for the last 25 years in Avhich the validity of such conveyance has been attacked it has been held that such a deed, in the absence of fraud, was valid in all respects, and conveys the entire estate, both legal and equitable. The Avriters of the opinions have clung to the verbal husks of the old rule, while in fact it was ignored in the action taken and the decision made. The rule of Furrow v. Athey, supra, announced in 1887, that the deed “is just as good” without the intervention of a trustee, has been followed ever since that opinion was written, and is the law of this state. This is common sense, and is in accordance Avith the modern tendency to disregard the fictions and technical niceties and distinctions of the common law. While the language of the
The defendants assert that it was “the land itself” that was sold, and not the life estate, but this cannot be true. The interests alone of the parties to the suit were sold. To hold otherwise would be to deprive one of property without due process of law. The purchaser at a foreclosure sale must advise himself of the title he buys, and when the real owner of the fee is not made a party he cannot deprive him of any of his rights by the purchase. Schmideke took possession under the sheriff’s deed, as he was entitled to do. Eugene Currier died October 17,1901.
A number of other questions are discussed in the brief, and have been considered by the court, but under the conclusion reached it is unnecessary to notice them.
The judgment of the district court is affirmed as to all of the defendants except Walter Schmideke, without prejudice to a proper action to recover possession. As to Walter Schmideke, the judgment of the district court is reversed and the cause remanded for further proceedings.
Judgment accordingly.