43 Neb. 711 | Neb. | 1895
On the 10th day of March, 1886, one Adolph Beyer was the owner of a tract of land in Buffalo county, and on said date he borrowed of one Thomas B. Tallant $200. As an evidence of this loan Beyer and his wife, Christina, on said date made and delivered to Tallant a promissory note for said sum of $200, drawing interest at the rate of
The district court found, and the evidence supports its finding, that Sophia M. Eggert was an innocent purchaser before due for value, in the ordinary course of business, of the notes and coupons and mortgage in controversy in this suit, without any notice of the fact, either actual or constructive, that Flury, the purchaser of the land, had in 1889 paid to Tallant, the original mortgagee, said mortgage debt. It appears from the record that whatever interest Beyer paid
In Webb v. Hoselton, 4 Neb., 308, it was held : “A bona fide purchaser, for value, of a negotiable promissory note, secured by a mortgage, before maturity and without notice, takes the mortgage as he does the note, discharged of all equities which may exist between the original parties;” and it was further held in this case that “ the mortgage is a mere incident to the debt, and passes with it.” (See, also, Moses v. Comstock, 4 Neb., 516; Sedgwick v. Dixon, 18 Neb., 545; Cheney v. Janssen, 20 Neb., 128; Daniels v. Densmore, 32 Neb., 40.) At the time Flury purchased the real estate of Beyer there was of record in the office of the register of deeds of the county where such real estate was situate not only the mortgage made by Beyer to Tallant, but an' assignment by Tallant of all his interest in that mortgage to one C. A. Eggert, of Johnson county, Iowa,
Counsel for appellant seem to think that the failure of Sophia M. Eggert to have recorded in Buffalo county the assignment made to her of the Beyer mortgage was such negligence on her part as should preclude her recovery in this case; that as one of two innocent parties must suffer, she should bear the loss rather than Flury, because her neglect to have her assignment recorded led Flury to pay the money to the original mortgagee. The facts in this record do not bring appellant within the protection of this rule. Flury himself is not an innocent purchaser. His loss is the result of his own negligence. He knew that Tallant, the original mortgagee, did not own this mortgage, and he made no effort whatever to ascertain who the owner of the mortgage was; nor did he remit to Tallant the amount of the mortgage debt in such a manner as to require him to surrender the notes, coupons, and mortgage upon his receipt of the remittance. (Stiger v. Bent, 111 Ill., 328; Windle v. Bonebrake, 23 Fed. Rep., 165.) In Burhans v. Hutcheson, 25 Kan., 625, it was held: “The bona fide holder of negotiable paper, transferred to him by indorsement thereon before maturity, and secured by a real estate mortgage, need not record the assignment of the mortgage, or bring home to the mortgagor actual notice of such assignment, in order to protect himself against pay
Section 39, chapter 73, entitled “Real Estate,” Compiled Statutes, 1893, {provides: “The recording of an assignment of a mortgage shall not in itself be deemed notice of such assignment to the mortgagor, his heirs or personal representatives, so as to invalidate any payment made by them or either of them to the mortgagee.” The argument of appellant is that by the provisions of this statute the fact that Tallant assigned the Beyer mortgage to C. A. Eggert and that such assignment was recorded in Buffalo county, yet, in the absence of actual knowledge of these facts, Beyer would have been justified in paying the mortgage debt to the original mortgagee and protected in such payment; and as appellant had succeeded to all the rights of Beyer and assumed the mortgage debt, he was justified in paying it to Tallant, the original mortgagee, and protected in so doing. But this statute must be strictly construed. It provides that the recording of an assignment of a mortgage shall not be deemed notice of such assignment to the mortgagor. Flury is not a mortgagor. He is a purchaser of this real estate and is not, therefore, within the statute. We do not certainly know where this law originated, nor the reason which led to its enactment. Such a statute is in force in California, Kansas, Minnesota, New York, Wisconsin, Wyoming, and perhaps other states of the Union. In Burhans v. Hutcheson, 25 Kan., 625, this statute, or one like it, was construed, and the court held that the statute should be interpreted as having application to mortgages standing alone or those securing debts or notes of a non-negotiable character only, and that it had no application whatever to mortgages securing negotiable paper. Without express statutory authority, an assignment of a mortgage is not entitled to be recorded, but by section 46, chapter 73, Compiled Statutes, 1893, a mortgage assign
Affirmed.