Farrell v. Bouck

72 Neb. 875 | Neb. | 1904

Oldham, C.

This was a suit in equity instituted by plaintiff in the district court for Dixon countv for the purpose of reinstating and enforcing in favor of plaintiff, Michael Farrell, a real estate mortgage, which it was alleged had been canceled and released of record through a mistake of fact. The original action was begun in the year 1894, and has been twice reviewed by this court. At the first hearing of the cause in the district court, a judgment was rendered in favor of plaintiff for the relief prayed for in his petition. This judgment was reviewed on appeal in this court in the case of Farrell v. Bouck, 60 Neb. 771, and the judgment of the district court was reversed and the cause remanded, because “the cause of action pleaded was not, on the trial, established by the proof.” On a rehearing this opinion was adhered to in an opinion by Norval, C. J. Farrell v. Bouck, 61 Neb. 874. During the pendency of the action on the first appeal, defendant Ryan departed this life, and the cause was revived against his personal representative. When, a new trial was had in conformity with the judgment of this court on the first appeal, plaintiff amended his petition, charging in addition to the false representations of defendant Ryan the further allegation that he had been deceived and misled by the representations of defendant Bouck into releasing the mortgage, without making a full examination of the records of Dixon county. On issues joinéd on this amended petition, the court found for the defendants, and plaintiff brings the cause here for review on appeal.

The material facts underlying the controversy are that in May, 1894, plaintiff Farrell and defendant Ryan signed a note, as sureties, for defendant Bouck, who was the father-in-law of plaintiff Farrell. Defendant Ryan had a mortgage, executed by defendant Bouck on a lot and small store-house in the village of Allen, Dixon county, assigned to him for indemnification of his suretyship on the note. At or near the time this note matured, plaintiff Farrell agreed with his father-in-laWj defendant Bouck, that he would pay off and satisfy the note, if defendant Bouck would deed him the village property covered by Ryan’s, mortgage. This Bouck agreed to do. Farrell notified his cosurety Byan, who assigned him the indemnifying mortgage. After procuring the assignment of the mortgage, plaintiff took a warranty deed to the premises, duly executed by defendant Bouck and wife, and paid the note. In a short time after this he went down "to Ponca, the county seat of Dixon county, and asked the county clerk, who was ex officio register of deeds of the county, to make an examination of the title of the village property described in his deed. The clerk did this, and found the property clear of all liens, so far as the records of his office disclosed, except the mortgage which had been assigned to plaintiff. Plaintiff then went to the county treasurer and had an examination made of the tax liens. He then released his mortgage and filed his deed for record, without making any examination for judgment liens in the office of the chirk of the distinct court of the county. It afterwards developed that, at the time the mortgage was released and the deed filed for record, them was a judgment lien in favor of defendant Byan and against defendant Bouck on record in the office of the clerk of the district court. It was for the purpose of having the mortgage reinstated, and the release canceled, and this judgment lien in favor of defendant Byan declared a subsequent and junior incumbrance, that this action was instituted. The only material difference in the testimony adduced at the last hearing and that reviewed on the former appeal is that, at the last hearing of the cause, the court excluded all evidence offered tending to show that defendant Byan liad stated to plaintiff that he had no other lien against the land of defendant Bouck, except the mortgage which he transferred to plaintiff. It was for lack of this testimony and a finding thereon that the cause was reversed at the first hearing; and the evidence offered on this question at the last hearing was excluded by the trial court on the ground that it was a conversation with a dead man. On appeal we cannot examine any errors of the trial court in the. admission or exclusion of testimony, but rather try the case de novo on the testimony admitted. Under'this view, we cannot see how we can avoid the rule of the law of the case as determined between the parties on the first hearing in this court as now controlling this action. It is true that at the last trial plaintiff, under the allegation of his amended petition, introduced evidence tending to show that defendant Bouck told him, plaintiff, when he delivered the deed to him, that there was no other liens that he knew of against the property, except the mortgage; but the evidence shows that plaintiff did not rely on this representation alone; but that, on the advice of one Kearney, he Went to the county seat of the county to have an examination made for liens against the property, and that he did make a partial but incomplete examination of the records for such information. At the former hearing (61 Neb. 874), we said: “One who, through culpable inertness, fails to make inquiry when it is his duty to do so, is not in a position to have a release of a mortgage canceled on the gi’ound of mistake.” We are therefore of the opinion that the judgment of the trial court on the evidence admitted is in strict conformity with the law of this case as established on the first hearing in this court; and we recommend that it be adhered to and the judgment of the trial court affirmed.

Ames and Letton, CC., concur. By the Court:

For the reasons stated in the foregoing opinion, the judgment of the trial court is

Affirmed.