66 Neb. 814 | Neb. | 1902
. The facts involved in this case may be stated summarily as follows: A suit was brought to foreclose a tax lien upon certain lands covered by a mortgage. No assignment of the mortgage appearing upon the record, the mortgagee was made a party and served with process. Decree of foreclosure was afterwards rendered, the mortgag-eei makingi default. Sale was had pursuant to such decree and. the property was purchased by one of the defendants, who thereupon put his deed upon record. Prior tc the foreclosure suit, the mortgage had been assigned to the present* plaintiff by sale of the note secured thereby, but no assign
The plaintiff’s first contention is based upon the decision in Goodwin v. Cunningham, 54 Nebr., 11. But an obvious distinction is to be made between that case and the one at bar. There, as here, the assignment was not of record, and the mortgagee, who was made a party and defaulted, had assigned the mortgage before suit was brought. But in that case the assignment was put of record before the sheriff’s deed issued under sale pursuant to the decree, whereas here the purchaser at the sale under the decree has recorded his deed, with no notice of the assignment, and the assignment still remains unrecorded. Assignments of mortgages are within the recording act. Ames v. Miller, 65 Nebr., 204. Hence it would seem clear that an assignee of a mortgage, whose assignment is not of record, is barred by a decree foreclosing a prior lien to which his assignor who appeared of record as owner of the incumbrance was a party, unless he records his assignment prior to the recording of a deed under judicial sale pursuant to such decree. Whipple v. Fowler, 41 Nebr., 675; Porter v. Ourada, 51 Nebr., 510, 514.
It seems clear, also, that the service upon the mortgagee in the tax-foreclosure suit is not sufficient to make the decree rendered therein effective to bar his right of redemption from the tax lien. The mortgagee was sued by his initials only. The summons served upon him does not contain the words “real name unknown,” as required by section 148, Code of Civil Procedure, and service was had by leaving a copy at his usual place of residence. We are of opinion that section 23, Code of Civil Procedure,* does not apply to such a case. That section provides that, in actions upon written instruments, whenever any of the parties to such instruments are designated by the initials of their Christian names, they may be sued by the names by which they are designated in the instrument. But the cause of action of the plaintiff in the tax-foreclosure suit, . as against the subsequent incumbrancer, was not a suit’ upon a written instrument, within the purview of such section. The plaintiff in the foreclosure suit and the
The period fixed by law within which the tax lien might be foreclosed had expired before the institution of the present suit, so that the further question arises whether, in view of the holding in Goodwin v. Cunningham, supra, the plaintiff should be required to redeem, or may maintain his foreclosure suit without so doing. We are not entirely satisfied with the decision in that case, so far as it denies the necessity of redeeming, and have no inclination to extend the rule to other classes of.cases. Goodwin v. Cunningham involved a mechanic’s lien. Section 4, article 1, chapter 54, Compiled Statutes,
Plaintiff, in his petition, makes no offer to redeem from the tax-foreclosure, but seeks a decree for sale of the land as though no such foreclosure had been had. Such is not his remedy. He should redeem from the foreclosure sale, and, upon redemption, sell the land for satisfaction of his lien. Without first redeeming, he can not maintain his suit as to the land.
We therefore recommend that the judgment of the district court be reversed, and the cause remanded, with directions to enter a decree finding the amount due plaintiff upon Ms mortgage, ordering the surplus proceeds of the tax-foreclosure sale in the hands of the clerk applied to the payment thereof, and dismissing the petition as to the purchaser at the foreclosure sale and those claiming through him. We further recommend that the costs be taxed to the appellant and the appellees other than McDowall and Ewing, and that the appellee Thomas E. McDowall recover his costs in this court.
Judgment accordingly.
Cobbey’s Annotated Statutes, see. 7103.