272 N.W. 403 | Neb. | 1937
This is a suit in equity praying for specific performance of an alleged contract to assign a mortgage decree. The
The appellee, claiming to be assignee of a decree in foreclosure entered by the district court for Platte county, presents her petition in that court for leave to intervene and establish her title to such decree. The appellant, by special appearance, challenged the jurisdiction of the court, which was overruled, and appellee was permitted to appear by way of intervention in the foreclosure proceeding to establish title to and specifically perform her contract of assignment. The case was tried on the merits, resulting in a finding in favor of intervener on her petition, from which the First Trust Company, as successor-trustee, appeals to this court.
It is contended that the court erred in overruling the special appearance and permitting intervener to appear in the foreclosure proceeding to litigate her right to specific performance of the alleged contract of assignment.
Appellant argues that an application for intervention to be allowable must be filed before decree. In view of the prior holdings of this court, such position is wholly untenable. The courts recognize two methods by which intervention may be accomplished. One is statutory and is allowed as a matter of right, in which case the petition must be filed before decree. The other is a matter of equitable discretion growing out of the powers inherent in a court of equity. This existed prior to the enactment of the statute, and still exists independent thereof. In the latter case a court has jurisdiction to entertain the application at any time during the pendency of the proceedings if, in its discretion, it is essential to administer complete relief between all parties before it. Kitchen Bros. Hotel Co. v. Omaha Safe Deposit Co., 126 Neb. 744, 254 N. W. 507; State v. Farmers State Bank, 103 Neb. 194, 170 N. W. 901; Brown v. Brown, 71 Neb. 200, 98 N. W. 718; Engdahl v. Laverty, 110 Neb. 672, 194 N. W. 862.
The appellant, on the 7th day of November, 1934, ob
Suits to foreclose mortgages must be brought in the county where the real estate or some part thereof is situated. This doctrine is so well established that it is not necessary to quote either the statute or the decisions relating thereto. Section 20-403, Comp. St. 1929, provides that actions to compel specific performance of a contract for the sale of real estate may be brought in the county where the defendants or any of them reside.
In a foreclosure proceeding where the statute requires the suit to be brought in the county where the land is situated, the court may acquire jurisdiction over the parties to determine their interests in the subject of the controversy whether it involves title to the real estate or ownership of the mortgage lien. The word “may” as used in the specific performance statute does not mean “must,” and suits for such relief may be brought in any county where the parties are properly before the court. Pollard v. Larson, 115 Neb. 136, 211 N. W. 998; Miller v. Ruzicka, 109 Neb. 152, 190 N. W. 216.
The appellant, by statute, was required to select its forum in Platte county in order to subject the real estate to the satisfaction of the mortgage lien. This was the only
Appellant further contends that the evidence does not establish a sufficient meeting of minds to constitute a contract of assignment.
The appellee owned tax liens and a second mortgage on the real estate involved, and is also a sister of the owner of the equity of redemption. Appellant is successor-trustee to the Lincoln Trust Company, which was the original mortgagee. It appears that certificates of participation in the original mortgage debt were sold by the mortgagee to various investors who, for the purpose of this record, will be referred to as bondholders. Mr. Schlaebitz is the managing trust officer of the successor-trustee.
The facts relied upon to constitute such a contract consist mostly of correspondence. It appears that on March 20, 1935, the appellee through her attorney wrote a letter to appellant stating that she would put up $10,000 cash for an assignment of the bondholders’ interest in the mortgage decree. On March 22 following the appellant replied stating that the proposition would be submitted to the bondholders for their consideration, acceptance or rejection, informing
Our interpretation of the correspondence and the testimony on this point is that the original letter of appellee to pay $10,000 merely opened negotiations for the purchase of the decree. The reply thereto stating that the bondholders would not consider anything less than. $12,500 constitutes the first offer. .When appellee made the counter-proposal to pay $11,400, she thereby rejected the offer, and unless subsequently renewed, the original offer, as a matter of law, would be considered withdrawn.
Every contract is the result of an offer and acceptance thereof. The law requires the acceptance to be identical upon every point with the offer or there is not sufficient meeting of minds to amount to a binding obligation. Detroit Copper & Brass Rolling Mills v. Wise, 297 Fed. 460; United States v. Carlin Construction Co., 224 Fed. 859; Roberts v. Cox, 91 Neb. 553, 136 N. W. 831; Melick v. Kelley, 53 Neb. 509, 73 N. W. 945.
Where one to whom an offer is made makes a counter-proposition of different terms and new conditions, such counter-proposition amounts to a rejection of the offer.
A counter-proposition to an offer amounts to a rejection of the offer and a substitution therefor of the counter-proposition. In such case the original offer loses its vitality and is no longer binding upon the party making'it. The party submitting the counter-proposition cannot, of his own option, revive and accept the original offer which he has rejected. Lewis v. Johnson, 123 Minn. 409, 143 N. W. 1127. It will be observed that there can be no contract unless the minds of the parties have met and mutually agreed. Since appellant stated its position in answer to the appellee’s first negotiations to be willing to accept not less than $12,500, the appellant occupies the position of the offerer and appellee that of offeree. The appellee making the counter-proposal of $11,400 amounts to a rejection of the offer, which destroys all its vitality unless it can be said it is subsequently renewed. Even though it may be argued that appellant’s attitude in the letter of May 29, 1935, wherein appellee was informed that the bondholders were still insisting on being paid the sum of $12,500 amounts to a re-offer, the oral testimony fairly establishes that after making the counter-proposal of $11,400 appellee made another counter-proposal of $12,000 which, had this been a renewal of the original offer, would likewise amount to a rejection thereof.
From the most liberal construction which can be placed upon the facts presented by the record, we are constrained to hold that, when appellee wrote her final letter, claiming to accept appellant’s original offer, the appellant’s offer had ceased to have any legal existence, and, as a result, there was nothing left to accept upon which the minds could meet to constitute a binding contract.
The courts hold that a revivor of a rejected offer is as essential a part of a contract as the original offer in the first instance. Lewis v. Johnson, supra.
The trial court erred in finding appellee to be the owner of the decree in foreclosure. The part of the decree over
Affirmed in part and reversed in part.