89 Neb. 93 | Neb. | 1911
Lead Opinion
A general demurrer was sustained to the defendant’s answer and judgment oh the petition rendered in favor of the plaintiff, and the petition in intervention was stricken from the files. The defendant and intervener have appealed.
The plaintiff brought the action to “remove the cloud cast” by a mortgage of defendant upon a quarter section of land in Sheridan county. He alleged in his petition that in 1902 a judgment was rendered in justice court in Richardson county against one Buckminster and his wife in favor of certain persons not now parties to these proceedings, and that the judgment was transcripted to the district court for Richardson county, and afterwards, in December, 1904, to the district court for Sheridan county, and thereby became a lien upon the said quarter section of land, which was the land of the said Buck-minster that execution was issued on the said judgment and was by the sheriff of Sheridan county levied upon the said land, which was sold upon said execution according to law on the 20th day of May, 1907, and was purchased at said sale' by the plaintiff; that the sale was afterwards confirmed by the district court and a deed executed to the plaintiff by the sheriff on the 18th day of June, 1907, which deed was duly recorded, and that by these proceedings the plaintiff became “vested with the absolute title in fee simple to the lands.” The petition then alleges that, after the lien of said judgment had attached to the land, the defendant Mary Gehling procured a mortgage on the land for the sum of $600 and
The answer is not artistically drawn. It appears to rely upon two defenses: That plaintiff himself had two several mortgages upon the land that were prior to the lien of the judgment under Avhich he purchased it, and that a third mortgage Avas given to obtain the money Avith which to pay off plaintiff’s mortgages, the proceeds of which were used for that purpose, and that the defendant’s mortgage was in turn given for money loaned by defendant to pay the third mortgage, and the proceeds thereof were so used, so that the defendant’s mortgage ought in equity to be adjudged prior to plaintiff’s lien. The allegations of the answer upon this point, after describing defendant’s mortgage, are “that with the proceeds of said $600 said John W. Buckminster on the 20th day of April, 1907, paid said A. E. Buckminster his said note and mortgage, and A. E. Buckminster executed a release of said mortgage; * * * that said $600 which was borrowed of this defendant as aforesaid was used to pay off the mortgage recorded in book 10 on page 110 of mortgage records of said Sheridan county, which mortgage is more particularly described in the preceding paragraph of this amended answer.” It is also alleged in the ansAver that the plaintiff kneAV of these facts, and knew that this money borrowed of the defendant was used to pay off the mortgage, which was given to pay the mortgages Avhich he himself held. The second defense is that, when the plaintiff purchased the land at execution sale, he knew that the three prior mortgages had been paid with the proceeds of the defendant’s mortgage, and, as the record did not disclose the fact of the payment, he was able to and did procure the three prior mortgages to be deducted as liens by the appraisers, thus enabling him to purchase the land for a fraction of its real value, and upon a lien that appeared upon the records to be prior to defendant’s mortgage, thereby perpetrating a
For these reasons, the judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed,
Concurrence Opinion
I concur in so much of the above dissent as refers to the attempted intervention by John W. Buckminster.
Dissenting Opinion
dissenting.
My understanding of the answer of the' defendant, Mary Gehling, and the conclusions to be drawn from its allegations differ from those expressed by the majority. I am of opinion that the answer fails to state facts sufficient to entitle the defendant to any relief by way of subrogation. It appears that the intervener, John W. Buck-minster, allowed the land in question to be sold at the plaintiff’s execution sale without protest or objection, and at that time made no homestead claim to the same. By the allegations of his petition he has not shown that he has any such interest in the controversy between, the plaintiff and the defendant, Mary Gehling, as would give him the right to be made a party by intervention. Therefore the order of the district court striking his petition of intervention from the files was right.
As I view the pleadings, the judgment of the district court should be affirmed.