40 Neb. 686 | Neb. | 1894
This is an appeal from a'Meficiency judgment rendered against the appellant Wasmer. The transcript is very incomplete as to the proceedings prior to the motion for judgment. Counsel have stated many facts in the briefs as to which the record is entirely silent. It appears that in November, 1890, the plaintiff began the action against Juliette Moore, George H. Moore, Charles Wasmer, and the wife of Wasmer, to foreclose a mortgage, made by the Moores to the plaintiff. In addition to the usual averments it was charged that Wasmer had purchased the mortgaged premises since the giving of the mortgage and in his purchase thereof assumed, agreed to pay, and became responsible for the payment of the mortgage debt. Neither the summons or return, subsequent pleadings, nor decree appears in the transcript. We must, therefore,
1. The first objection is based upon the proposition that the
2. The second objection is based upon the failure of the petition to pray for a deficiency judgment. The prayer was “for a finding of the amount due on said claim and for a decree of foreclosure, an order of sale of the said property to satisfy the said claim, and for such other and further relief as is just and equitable.” Whether a deficiency judgment can be allowed under a prayer for general relief is a question not free from doubt, and its solution is rendered more difficult, rather than aided, by such authorities as we have been able to find. It would seem that under the general rule that a prayer for general relief permits the allowance of any relief applicable to the case and not inconsistent with the particular relief demanded, such a prayer would be sufficient to authorize the rendition of a judgment for the deficiency. The courts have, however, exhibited a tendency to depart from this general rule in such eases, but their decisions are largely based upon statutes more or less differing from those of this state. Counsel contend that the case of Brownlee v. Davidson, 28 Neb., 785, implies that no special prayer for a deficiency judgment is necessary. We cannot see in that case any such implication. On the contrary it does appear clearly from that case that at some stage of the proceedings the plaintiff must ask for a deficiency judgment before error can be predicated upon failure to allow it. This is the only authority cited in the briefs. We have, however, pursued the investigation somewhat further.
In Foote v. Sprague, 13 Kan., 155, the petition asked for a foreclosure and sale, and that execution should be issued for the balance. A personal judgment was rendered. The supreme court held that where the prayer was no more defective than in that case it might be amended at any time, and upon petition in error would be considered as amended.
In Wisconsin the statute permits a deficiency judgment only where it is demanded. In Ollinger v. Liddle, 55 Wis., 621, a prayer for execution for any balance was held sufficient to meet the requirement of the statute.
In Kentucky, under a prayer for foreclosure and general relief, it was held in Hansford v. Holdam, 14 Bush [Ky.], 210, that the rendition of a deficiency judgment was erroneous where the defendant made no defense to the action; but this was because a statute provided that if no defense be made the plaintiff cannot have judgment for any relief not specifically demanded. This principle would seem quite clear.
In New York the statute is similar to that of Kentucky, and the cases in that state usually cited as holding that a special prayer is necessary are based upon the statute, and intimate that where a defense is made the rule would be different. (Simonson v. Blake, 20 How. Pr. [N. Y.], 484; Peck v. New York & N. J. R. Co., 85 N. Y., 246.)
The result of these cases seems about as follows: In Ohio we have a dictum that the general prayer is sufficient;
3. The petition does state a cause of action against Wasmer. It avers that Wasmer became a purchaser of the property, in his purchase assuming, agreeing to pay, and becoming responsible for the payment of the debt alleged. These averments bring the case within the rule stated in Cooper v. Foss, 15 Neb., 515.
4. The note to secure which the mortgage was made was for $1,000, wilh interest at ten per cent per annum from date. It bore date March 23, 1886. It was stipulated upon the hearing that the amount found due in the decree was $1,561. The property sold for $524. The plaintiff is a building and loan association, apparently operating under chapter 16, sections 145 to 148r, Compiled Statutes. It appeared that when the Moores borrowed the money $550 was at once repaid to the association for stock; that the stock was pledged to the association as additional sécurity; that subsequently other payments had been máde. The question of the constitutionality of the statutes referred to is not argued in this case and we will not consider it. What the defendant claims we understand to be, first, that making proof of the face of the note with interest, without allowing credit for the moneys repaid the association, amounted to a fraud which vitiated the decree; and, secondly, that the association holding the stock should be required to exhaust it before enforcing Wasmer’s personal liability. Upon the first point it is sufficient to say that in the proceedings resulting in the deficiency judgment there was a new accounting regardless of that had upon the foreclosure, and Wasmer thereby obtained all the relief to which he was entitled because of the excessive finding in the decree. The property did not sell for enough to pay what was justly due, so that taking that fact in connection
5. The last objection made is that the proceeding was premature. The note was made payable on or before March 23,1892, with the following provision: “The payer has the option of paying the interest as above at the end of each year or of having it added to the principal to draw thereafter the same rate of interest.” The mortgage, as alleged in the petition, provided that if the mortgagors should fail to pay the money when due, or to pay taxes or insurance, or to pay the dues and fees on the stock as they became due, then the plaintiff might elect to pay the same and. declare the whole amount due and payable at once. The default alleged was the failure to pay dues and fees upon the stock, and it must be presumed that the court found upon proper evidence that there had been such default. The writer was at first of the impression that where the note is absolute and the mortgage contains such a provision, the provision should be restricted to the remedy by foreclosure, rendering the debt due for the purpose of foreclosure only, but leaving the maturity of the debt for the purpose of enforcing the personal liability to be determined, by the note itself. The adjudications do not, however, bear out this view. In this state it has been determined that in.de
Judgment aepiemed.