290 N.W. 444 | Neb. | 1940
This is a foreclosure suit. The Federal Farm Mortgage Corporation instituted proceedings on its second mortgage, and Arthur A. Bohn set up his first mortgage by petition in intervention. The trial court decreed foreclosure of both mortgages. Louisa C. Fischer, the mortgagor’s mother, who tried to establish a lien on the property, under an annuity agreement, superior to the rights of intervener Bohn, and Elizabeth Fischer, the mortgagor’s wife, who sought to claim that the mortgage of intervener Bohn had a void acknowledgment and so was not a homestead lien, have appealed.
Two questions are controlling: (1) Did the annuity agreement existing in favor of Louisa C. Fischer create a charge or lien upon the property? (2) Was intervener’s mortgage, on homestead property, acknowledged before a notary public who was disqualified, and so void?
Since a vendor’s lien has never been recognized in this state (Edminster v. Higgins, 6 Neb. 265), the payments under the annuity agreement would not constitute a lien in favor of defendant Louisa C. Fischer unless some right was reserved by her in the property at the time of the conveyance or unless a separate lien was created by manifest intent and agreement. A provision in a deed of conveyance for the payment of an annuity to the grantor is ordinarily held to constitute a charge or lien upon the land by way of reservation. Pinkham v. Pinkham, 60 Neb. 600, 83 N. W. 837; Bankers Life Ins. Co. v. Ohrt, 131 Neb. 858, 270 N. W. 497. A reservation will similarly be held to exist where a deed and a contract for an annuity are executed simultaneously as part of the same transaction and the contract is
The right of Louisa C. Fischer to a lien in this case depends therefore solely upon the terms of the separate annuity agreement. Since no reservation is involved, the language used in the agreement must be such as would be sufficient in any independent instrument to create a lien on the property. A mere promise in writing to pay an annuity, as part of the consideration for a conveyance, is not enough. An intention to constitute the land as security for the performance of the annuity obligation must clearly appear (3 Tiffany, Real Property (2d ed.) 2748, sec. 661), and where, as here, third party rights are involved, this necessarily can be done only by the use of language effectual to create an actual lien. The annuity agreement in this case contains no such language, and the trial court therefore properly held that it was not a lien on the land.
The remaining question is whether intervener Bohn’s mortgage was acknowledged before a disqualified notary public, so as to render it void as a homestead lien. The notary public was F. J. Dankers, who was a stockholder in and cashier of the First National Bank of Madison, Nebraska. Defendants contend that the bank was originally the real mortgagee under Bohn’s mortgage, or that it at least had such a direct interest therein as to disqualify Dankers to act as notary public, and that the acknowledgment was accordingly void.
We cannot agree that the bank ever was the actual mortgagee. Ed Fricke, another officer of the bank, who engaged in the mortgage loan business on the side, had placed the
The loan papers in this case appear to have been executed on August 30, 1930. Bohn did not have his money available until September 10, 1930. Fricke meanwhile had the mortgage recorded and at the same time prepared and apparently executed an assignment in favor of Bohn. The assignment was not delivered to Bohn, however, or recorded until September 10. As an accommodation to the parties, the bank advanced the $7,500, although the evidence does not indicate whether this was done as a charge against Bohn or Fricke, or how it was carried. In any event, Fischer’s testimony shows that he knew the bank was not making the loan to him, nor did he consider that it had any interest in the mortgage. So far as the record indicates, the bank never held the note or Mortgage in its possession or ever claimed any rights thereunder. On September 10, Bohn paid the bank the amount of its advance together with interest thereon. The burden rested on defendants to establish that the bank was the actual mortgagee, and the circumstances set out do not sustain the burden of this contention.
Defendants further contend, however, that the bank had a direct interest in the loan transaction, by reason of the fact that it was paid $3,900 out of the proceeds, and that in this situation Danker’s interest as a stockholder disquali
In Quesner v. Novotny, 116 Neb. 84, 215 N. W. 796, it was held that a notary public who is likewise a stockholder and an officer of a corporation is not disqualified from taking the acknowledgment to a homestead mortgage merely' because part of the proceeds thereof are to be used to pay an indebtedness owing the corporation, where the latter is not an actual party to the mortgage either as the named mortgagee or as the holder of a beneficial interest therein. There is some logic in the contention that a pecuniary interest in the making of a mortgage ought to be as disqualifying as an interest in the instrument itself or in the enforcement thereof, but it is our duty to adhere to the rule adopted in Quesner v. Novotny, supra, since, in a situation such as this, instruments have undoubtedly been drawn in reliance upon the court’s previous declarations, including perhaps the mortgage involved in this case.
Defendants cite Wilson v. Griess, 64 Neb. 792, 90 N. W. 866, and say that it cannot be distinguished from the present situation. In that case, however, the First National Bank of Sutton, which held a note from another bank for collection, took a mortgage upon the debtor’s homestead, naming the other bank as mortgagee but including in its amount some indebtedness which he owed the First National Bank. It was properly held that the First National Bank thus had a beneficial interest in the mortgage itself, and that one of its stockholders and officers was accordingly disqualified from taking the acknowledgment as notary public.
Defendants rely, also, upon Anderson v. Cusack, 115 Neb. 643, 214 N. W. 73, but that case similarly is not in point. There a note and homestead mortgage were taken in the name of the president of a bank as collateral security for some indebtedness which the mortgagor owed the bank. The president obviously never had any personal rights in
In the present case, the First National Bank of Madison neither was the named mortgagee nor did it have any interest in the enforcement of the mortgage,by virtue of a beneficial interest thereunder.
We have discussed the controlling questions upon their merits and have ignored the procedural hurdles attempted to be raised with respect to our consideration of them. This makes unnécessary the consideration of any of the other questions presented in the briefs.
The trial court properly allowed foreclosure of intervener Bohn’s mortgage.
Affirmed.