61 Neb. 575 | Neb. | 1901
The appellee, as plaintiff, began an action in equity in the district court for Olay county, the object and purpose of which were to foreclose a lien which it claimed upon certain property, a portion of which is situate in the county in which the action was brought and a portion in the adjoining counties of York and Hamilton. Such lien arose by virtue of a quitclaim deed, alleged to. have been executed by appellants Grosshans, conveying the interest of Johanna Grosshans, the wife of William Grosshans, in the real estate of her deceased father. It
It is urged by the appellants that the opinion on the first appeal is decisive of the question, and that the decree should again be reversed. This contention would probably be correct if the testimony in both cases were the same. While we are not now advised as to the state of the evidence upon which the first appeal was reviewed, we find from an . inspection of the present record that a great deal of additional and material evidence was introduced on the second hearing, and because thereof, we ar' to consider the present appeal upon the record now before us, uninfluenced by the prior decision.
It is said in the second paragraph of the syllabus in
By its petition the plaintiff’s right to the relief prayed for is based upon substantially the following allegations: That appellants Grosshans Avere indebted to one Peter Griess in the sum of $800, evidenced by their promissory note in his favor; that the payee, desiring to discount the note Avith the appellee bank, the same Avas effectuated by the payee guaranteeing its payment, and the payoi's executing a quitclaim deed to the interest of Johanna Grosshans in her deceased father’s real estate described therein, which, while the form was that of a deed of conveyance, was in fact intended to be and was taken as security for the note mentioned; whereupon, and in consideration of which, the note was discounted with the appellee bank, who paid to the payee the proceeds arising therefrom; default in the payment of the note with prayer for equitable relief.
In answer to the petition, as we construe it, the appellant, Johanna Grosshans, pleaded a defect of parties, and a misjoinder of causes of action; an admission that she signed the note, alleging that it was as surety only; a denial of some of the formal allegations of the petition,
part thereof Avith reference to the conveyance being procured by fraud. Dinsmore & Co. v. Stimbert, 12 Nebr., 483. State v. Hill, 47 Nebr., 456. The allegation that if the deed is in existence, its execution was obtained by fraud, either by the plaintiff or by some other person, is too general to be construed as an allegation of fact upon which fraud may be predicated, and is only a conclusion, upon Avhich no finding of the procurement of the execution of the instrument to have been by fraud could be based; hence, the statement must be disregarded under the well-known rule that facts relied on to constitute fraud, to be available, must be specifically pleaded and proven. Arnold v. Baker, 6 Nebr., 134; Aultman v. Steinan, 8 Nebr., 109, 113; Hamilton v. Ross, 23 Nebr., 630; Tepoel v. Saunders County Nat. Bank, 24 Nebr., 815; Kansas & C. P. R. Co. v. Fitzgerald, 33 Nebr., 137; Crosby v.
The evidence, as adduced on the trial, tends to prove that the Grosshans were indebted to the bank in the sum of $1,590, upon which the Peter Griess mentioned was liable as surety; that to indemnify the surety there was a transfer of certain property owned by the Grosshans in the city of Harvard, and occupied by them as a homestead; that on this homestead was procured a loan of $1,000, the proceeds of which, or some portion thereof, Avere applied to the reduction of the $1,590 indebtedness, the transaction when completed leaving a claim to the amount involved in this contrewersy yet due. As evidence of this indebtedness, a new note for that amount by the Grosshans was executed with Griess as surety, and as further security the appellant, Johanna Grosshans, executed in Griess’s favor what was termed a release of her interest in the estate of her father, who was then deceased. The release, while informal, appears to have been executed as security to Griess because of his liability for the indebtedness of Grosshans. As a part of the same transaction, Griess reconveyed the homestead to Johanna Grosshans, which had before been held as security by him. After these arrangements had continued for about a year, the transactions forming the basis of this action Avere entered into, a neAV note being given to Griess, discounted to the bank, and the formal quitclaim deed executed by the Grosshans and Peter Griess and wife for the interest in the estate, as before mentioned. While the evidence is not entirely satisfactory as to the object and purpose for Avhieh the quitclaim deed was executed, we are disposed to the view
It is urged by appellants that under the will- of the deceased the property went to his executors, in whom the legal title was vested, and not to his heirs, and for that reason no title-vested in them which could be mortgaged or made the subject of sale under foreclosure proceedings. Without determining this question, we only need to say that if such be the case, the appellants are not prejudiced, and, therefore, have no ground for complaint. Pinkham v. Pinkham, 61 Nebr., 336.
It is also argued that appellee bank, being a national bank, is prohibited from taking real estate as security for a concurrent loan, and we are cited to the Revised Statutes of the United States, section 5137, in support of the same. The rule regarding such transactions, as we understand it, is, first, that the parties thereto can not be heard to deny the right of the bank to enforce the j)rovisions of the mortgage (State Nat. Bank v. Flathers, 12 So. Rep. [La.], 243),and that the violation of the statute mentioned is a matter purely for the United States government; and where security on a contemporaneous loan has been taken, the same may be enforced, notwithstanding the provisions of the statute cited. National Bank v. Matthews, 98 U. S., 621; National Bank v. Whitney, 103 U. S., 99; Swope v. Leffingwell, 105 U. S., 3.
A x>hm in abatement of prior suits pending in York and Hamilton counties on the same cause of action was ini< rposed, and the action of the trial court in proceeding to trial irrespective of the proof of the pendency of
The decree of the district court should be affirmed, which is accordingly done.
Affirmed.