64 Neb. 401 | Neb. | 1902
The appellee fthed his petition in the district court of Otoe county to foreclose a mortgage given by one Julia G. Edwards (now known as Mrs. Yager) to one Emma Morton to secure the payment of a promissory note for the sum of $350, with interest at 7 per cent, per annum. The mortgage covered lot No. 6, in block No. 109, in Nebraska City proper. The petition was in the usual form, and alleged that William F. Moran had some interest in the premises, and that Maude Moran, his wife, had an inchoate dower right therein, but that the right of the appellee was paramount thereto. The appellee took the mortgage from Emma Morton by assignment, and the note by proper indorsement, all of which was duly alleged in the petition. The answer of appellant, W. F. Moran, -was, in substance, that he was the owner in fee of the premises described in the mortgage; that Maude Moran is his wife. The answer also denied each and every allegation in said petition not admitted to be true. The answer further alleged that Julia Gr. Edwards (now Mrs. Yager) was the owner of the undivided three-fourths interest in-the said premises; that on May 14,1898, she conveyed all her right, title and interest in the premises to one Frank Gameral, and that said deed was duly recorded in the deed records of Otoe county bn May 18, 1898; that on May 16 Frank Gameral conveyed the said premises to the appellant; that, before purchasing said premises, appellant made diligent search
1. It is claimed that the court erred in sustaining the motion of the appellee to withdraw the rest, and allow him to introduce testimony in support of the allegation, that no proceedings at law had been had, or commenced for the recovery of the mortgage debt. It goes without saying that the court has full power to vacate, correct or modify its own judgments during the term at which they are rendered. This contention therefore reduces itself to the one question: Was it an abuse of the discretion of the court to sustain the motion of the appellee to set aside the rest, and allow further proof on a purely technical point? The appellant, in his brief, has suggested nothing to show that the court abused its discretionary powers. No authorities are cited in support of his contention, and we therefore hold that the matter was within the power and discretion of the court; that there was no abuse of such discretion, and there was no error in sustaining the motion.
2. The second proposition contended for is, that the appellant is an innocent purchaser for value, and without
3. It is contended that if appellant did not take the property as an innocent purchaser for value, free and clear of any and all liens, then he took it subject only to a lien of $70. Appellant claims that he exercised due diligence to ascertain the amount of liens upon the premises before he purchased the same. The testimony shows, however, that when he was informed by Jackson, who was the agent of the vendor, Mrs. Yager, that there was a lien upon the premises, known as the “Morton lien,” he instituted no sufficient inquiry to ascertain the amount of it. It is shown that the only person he inquired of was Mr. Jackson; that Jackson was not the agent of J. Sterling Morton, or of Emma Morton, or of the appellee. If Jackson acted in the capacity of agent for any one he was the agent of the appellant to make this inquiry and ascertain the amount of the lien. He inquired of J. Sterling Morton as to the amount of this lien, who stated that he would ask his sister, Emma Morton, who was the owner of the mortgage, what amount was due thereon. It appears that afterwards J. Sterling Morton, without comment, handed him a memorandum which showed the true amount to be $170, but, in reading it, Jackson made a mistake, and informed the appellant that the amount of the lien was $70; that thereupon appellant purchased the property, and had it conveyed by quitclaim deed to Gameral, who in turn quit-claimed it to him. It is further shown that appellant never saw the memorandum; that he knew nothing about it except what Jackson told him, who, as soon as he ascertained his mistake, informed appellant of that fact. Afterwards the mortgage was recorded, it not having been recorded prior to the purchase of the premises by the appellant. Some time after that, it was sold and assigned to the appellee, who commenced the foreclosure proceedings. The
4. It is further contended that the evidence was not sufficient to support the finding that no proceedings at law had been had or commenced to recover the debt secured by the mortgage. An examination of the record shows that the evidence established that fact, at least prima facie. No proof having been introduced to dispute it, we hold that the evidence was sufficient to sustain that particular finding. Under the well-established rule that where there is any competent evidence to sustain the findings and decree of the trial court in an equity case a court of review will not disturb them, we are constrained to hold that the evidence was sufficient to sustain the judgment and decree of the district court We therefore recommend that the same be affirmed.
By the Court: For the reasons set forth in the foregoing opinion, the decree and judgment of the district court is
Affibmbd.