54 Neb. 773 | Neb. | 1898
In this action instituted in the district court of Clay county for the appellee, the bank, it was sought to obtain a decree that an instrument which was in form a deed of conveyance of real estate was in effect a mortgage. Its foreclosure was also prayed, that thereby satisfaction might be had of an indebtedness evidenced by a promissory note, the payment of which, it was asserted, was secured by what was pleaded as a mortgage. It was alleged of the note and its origin that the Grosshans had become indebted to one Peter Greiss in sums aggregating $800, and on September 1, 1893, executed and delivered to him the note pleaded in the action, as showing the indebtedness, the enforcement of the payment of which was sought herein. It was also stated that on September 1, 1893, “The said Peter Greiss, applied to this plaintiff for the purpose of discounting said note, and the defendants Johanna Grosshans, William Grosshans, Peter
“ ‘For value received I hereby guaranty the payment of the within note, and waive demand, protest, and notice of non-payment thereof. Peter Greiss.’
“Fifth — And in consideration of the foregoing the "plaintiff then and there discounted said note for said Peter Greiss, loaning him money thereon and extending him credit to the amount set forth in said note.”
The property described in the deed was of record, and, in fact, of the estate of Henry and Elizabeth Hoffman, deceased, of whom Johanna Grosshans was one of the heirs. The estate was in process of administration, and the property was in possession of the administrator, and no distribution had been made at the time of the execution of the deed nor the commencement of this suit. The pleas for Johanna Grosshans were coverture', that the note was evidence of a debt of the husband, for the payment of which she was in no manner or degree liable; that for her signature to the note there was an entire lack of consideration; that it was not made with reference to her separate property, trade, or business, and neither she nor her separate property derived any benefit
From the foregoing it is apparent that the decree was predicated on a finding of the truth of the facts alleged in the petition relative to the execution and delivery of the instrument in suit, the purposes of its creation, und the consideration therefor. It will no doubt have been noticed that the note was in terms payable to Peter Greiss, and the grantee named in the deed in question was M. L. Leubben, and there was no apparent connection between the two instruments. A careful examination of the. evidence convinces us that it is wholly insufficient to sustain the finding to the extent it involves and ap
Reversed and remanded.