74 Neb. 92 | Neb. | 1905
The record in this case recites, and the briefs and arguments of counsel discuss, a tangled web of circumstances of no slight dimensions and complexity, but we think that the legal rights of the parties are to be determined by a consideration of a very few of them, to which alone our attention will be confined.
On March 6, 1897, Emma S. Challberg and Olive M. Axelson were in the possession, and appeared by the public records to be the absolute owners .in fee, of a tract of land described in the pleadings. If any other person or persons had any right, title or interest, legal or equitable, in or to the property, or any of it, that fact was known only to such persons and to the parties named. On that day they executed a mortgage upon the lands to Fred P. McCormick to secure an indebtedness evidenced by their
It is not disputed or questioned that McCormick was a bona -fide mortgagee, plaintiff and purchaser for value in all that the term expresses or implies. There can be no doubt, tlierefore, that, upon the entry of the order of the confirmation, not afterwards impeached, he became the full and absolute owner of the entire equitable or beneficial title to the land in question; and it has been already decided by this court that a deed of mere quitclaim and release is sufficient to convey such title to the grantee therein. Leavitt v. Bell, 55 Neb. 57. The deed of McCormick to appellant is, however, an instrument of higher dignity than a deed merely of quitclaim, demise and release. By it the grantor expressly quitclaims and “conveys” the land, and by section 50, chapter 73, Compiled Statutes, 1903 (Ann. St. 10253), it is enacted that “every conveyance of real estate shall pass all the interest of the
On the 4th day of May, 1901, after the judicial sale had been confirmed and after the deed froto the purchaser to appellant had been executed and delivered and made of record, there was spread upon the real estate records of the county a writing subscribed by the defendant herein, Andrew Axelson, and purporting to have been made not only in his own behalf, but also on the behalf of his
To set forth the issues more at length, or the evidence at all, Avould be fruitless of benefit or advantage to any one. It is a familiar elementary principle, at least as old as any existing system of jurisprudence, that, in the language quoted and adopted by this court in Garland v. Wells, 15 Neb. 298, “a purchaser Avith notice from a prior purchaser who was entitled to protection as a bona fide purchaser without notice, is himself entitled to protection
It is therefore recommended that the judgment of the district court be reversed, and the cross-petitions dismissed, and the cause remanded, Avith instructions to enter a decree in conformity with the prayer of the plaintiff’s petition.
By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed, and the cross-petitions dismissed, and the cause remanded, xvith instructions to enter a decree in conformity Avith the prayer of the plaintiff’s petition.
Reversed.