79 Neb. 51 | Neb. | 1907
This action was brought by Harrah to redeem the property known as the “Brownell Block,” in the city of Lincoln, from an alleged mortgage held thereon by the defendant Smith. The district court, after a lengthy trial, entered a decree dismissing the plaintiff’s bill, and the plaintiff has appealed to this court.
The facts surrounding the transaction are contained in a bill of exceptions covering about 1,200 pages, and, while the circumstances attending the numerous transactions are somewhat complicated, the material facts which must govern in determining the case are neither numerous nor difficult of understanding. During the transactions which we shall now proceed to examine,
On June 27, 1903, Jackson surrendered his agency agreement, writing across the face thereof the following: “My agency for sale of this block, Brownell block, is hereby canceled and terminated,” and on the same date he executed and delivered to Smith the following: “Dear Sir: In'consideration of your canceling and surrendering to me two promissory notes given to you for money loaned me, one for $1,000, dated January 4,' 1901, bearing 8 per cent, and secured by a chattel mortgage on furniture; and one for $2,000, dated October 18, 1902, bearing 8 per cent., and the receipt from you in full for the book account you have against me of $1,044.14 for cash advanced and policies delivered, I hereby relinquish all interest or claim of every nature I hold or ever had in the Brownell Block by reason of the agency you gave me to sell said building, or otherwise, the said agency being hereby canceled and forever terminated from this date. H. O. Jackson. Witness: W. D. Reily.”
Another transaction will now have to be explained in order to show the facts relating to the plaintiff’s claim to an interest in the Brownell Block. At the time the trade for said block was consummated, Jackson was still
These are the principal features in the case, and, together with the oral testimony which will be considered as we proceed, sufficient for understanding our views of the controversy without reciting many immaterial facts and circumstances that have no real bearing on the rights
How it can be claimed that property taken in.full payment of a debt should still stand as security for that debt has not been explained to our satisfaction. The letters of Smith above referred to were written while the agency agreement was still in force, and while Jackson had such interest in the property as the agency agreement allowed him. Aside from this, when the agency agreement was made, Mr. Baird, a reputable attorney of Omaha, was
It being, as we think, fully established by the testimony offered by the plaintiff himself that Jackson had no interest in the property except such as he acquired by what is known as the agency agreement, it follows that, when in June, 1903, he surrendered for a valuable consideration all rights under that agreement, he ceased to have any interest whatever, and the plaintiff’s rights, if any he has, depend wholly upon the question of estoppel raised by his pleadings. Relating to this question, it may be said that plaintiff claims that at the time he took his quitclaim deed from Jackson he was led to believe from statements made by the defendant that Jackson was a mortgagor having the right to redeem the property upon payment of whatever might be due to Smith from Jackson. The evidence to support this claim arises principally from the fol
To our minds the facts are so strongly in favor of the decree of the district court that we have no hesitation whatever in recommending its affirmance.
By the Court: For the reasons stated in the foregoing opinion, the decree of the district court is
Affirmed.