60 Neb. 135 | Neb. | 1900
When this case was here before, a judgment in favor of Murphy, the defendant below, was reversed and the cause remanded for further proceedings. Hare v. Murphy, 45 Nebr., 809. The opinion then filed contains a detailed account of the transactions out of which the litigation arose. At this time it will suffice to say that the plaintiff, Robert W. Hare, being the assignee and owner of a real estate mortgage, filed in the district court of Lincoln county his petition, in which he alleged that Murphy had purchased the premises covered by the mortgage and, in the deed of conveyance, had assumed and agreed to pay the mortgage debt. This allegation was denied by the answer. The cause was tried to a jury and resulted in a verdict and judgment in favor of the defendant. It appears from the evidence that the defendant had bar
The deed delivered did not express the agreement of the parties and Murphy was, therefore, warranted in refusing to accept it. If Callender was acting for Schuster, which seems probable, the return of the conveyance to the former was, beyond all doubt, an effective repudiation of the attempted transfer. There was certainly sufficient evidence to justify the jury in finding as they did, that, as between Schuster and- Murphy, the deed, although recorded, was without force or legal efficacy. As the rights of Hare are derivative and depend altogether on the transaction between Schuster and Murphy, it is quite clear that there can be no recovery in this case unless Murphy is, by the doctrine of estoppel, precluded from showing that the assumption clause is void because ' the deed was never vitalized by delivery and acceptance.
Affirmed.