99 Neb. 672 | Neb. | 1916
This action was brought to foreclose a mortgage by Friedricke Schmeeckle and Gottlieb W. Schmeeckle on 160 acres of land. The mortgage was given to secure the payment of a promissory note for $2,700, signed by Friedricke
This concluded the testimony. A decree of foreclosure was then rendered which contains the following finding: “The court further finds that Friedricke Schmeeckle is dead, and that before such death she conveyed all her interest in said land to her husband, Gottlieb Schmeeckle.” Errors of law occurring at the trial and that the judgment is not sustained by sufficient evidence are assigned. That portion of the decree which finds that Mrs. Schmeeckle had conveyed her interest to her husband before she died is unsupported by the pleadings or the evidence. The mortgage was properly received in evidence, since, being acknowledged, it proved itself. Rev. St. 1913, sec. 6210. Construing the language of the offer of the note technically, it was offered only for the purpose of comparison of the handwriting. It is apparent, however, that counsel meant that,
There was a failure of proof as to the fact that no other action had been brought for the recovery of the debt secured by the mortgage, except as to the court in which the action was pending. This allegation was denied in the answer. In this state of the pleadings, proof that no such action had been begun was essential. Beebe v. Bohr, 84 Neb. 191, and cases cited.
The heirs or representatives of Mrs. Schmeeclde were not parties to the suit. All interested parties should be brought in.
The judgment of the district court is
Reversed.