67 Neb. 249 | Neb. | 1903
At and prior to December 14, 1895, Nathaniel B. Falconer was engaged in the mercantile business in Omaha, Nebraska, and was the owner of a leasehold interest in a business property in that city. The lease was made July 1, 1890, and was for a term of fifty years, upon rent reserved equivalent to $3,850 per annum, payable in quarterly instalments of $962.50 each. The lease provided, among other things, that the lessee should pay all taxes during the term, keep the property insured, make all necessary repairs, and rebuild in case of fire. On October 14, 1895, Falconer failed, and gave mortgages on his leasehold interest in this property to secure certain creditors for the following amounts: George A. Wilcox (first-lien), $13,067.42; M. E. Smith & Oo. (second lien), $886.-
On May 16, 1900, the plaintiff in this cause of action, Edward P. Hatch, sole trader under the name and style of Lord & Taylor, and owner of the fourth and seventh mortgage liens, instituted the instant suit in the district court for Douglas county, setting out in his petition his ownership of the fourth and seventh mortgage liens, the amounts alleged to be due thereon, and asking for an accounting and decree of foreclosure, and also setting up the agreement between the several mortgagees substantially as above set forth, and alleged that the time fixed for the trusteeship of defendant Wilcox had expired, and asked for an accounting with Wilcox for the money collected and disbursed during the time of Ms trusteeship, and that a receiver be appointed by the court to take charge of the property and collect the rents, and for all other equitable relief. James McCreary & Co., the owner of the fifth and eighth mortgage liens, above set forth, answered the petition, setting up their mortgage liens, and joining in the prayer for an accounting and for a receiver,
Harriet N. Kilpatrick filed an answer to this petition, alleging her ownership of the Wilcox mortgage; the' amount due and unpaid thereon; that it was the first mort
Thomas Kilpatrick and Thomas Kilpatrick & Co. filed a joint answer, denying the averments of plaintiff’s petition for the appointment of a receiver, alleging that the premises were rented at full value; that the rent was promptly paid each month to Harriet N. Kilpatrick; that it was prudently and punctually applied to the preservation of the property; all to. the advantage and security of herself and all other parties in interest. The answer then alleges the making and transfer of the mortgages given to M. E. Smith & Co., Tootle, Wheeler & Motter and Sherman, Cecil & Co. to Thomas Kilpatrick by procurement of Thomas Kilpatrick & Co., and prays that any decree that may be rendered in the cause be so framed as to find and fix the priority of the several mortgages held by plaintiff and the several defendants, and the amount due thereon, and for all other equitable relief.
Plaintiff filed a reply to the answers of Harriet N. Kil-patrick and the joint answer of Thomas Kilpatrick and Thomas Kilpatrick & Co., in the nature of a general denial.
The application for a receiver was denied and the cause tried to the court, which found that the premises had been rented for their full rental value during all the time they were under the control of defendants Wilcox and Harriet
An examination of the evidence contained in the bill of exceptions shows that the findings of the learned trial judge of the facts in this cause are fully supported by the testimony; consequently, the only question to he determined is whether or not the law has been properly applied to the facts in the judgment rendered. The appellant's prayer for a foreclosure of his mortgage and an accounting with the mortgagee in possession was granted, and the complaint in his brief is directed against the relief granted the senior mortgagees on their cross-petitions, his contention being that Thomas Kilpatrick & Co. was the tenant of the junior mortgagees Lord & Taylor and James McCreary & Co., that as such tenant it had no right to purchase through Harriet N. Kilpatrick and Thomas Kilpatrick the adverse title of the senior mortgagees to the ground-rent lease, that when it did so these purchases should be con strued as having been made for the use of the landlord, and that at most the holders of these senior mortgages should only have been allowed, as against their landlords, the junior mortgagees, an accounting for the amount they had actually paid for the senior mortgages. It seems to us that this contention is wholly unfounded in principle. It proceeds on the theory that Wilcox, in the first instance, got control of the mortgaged premises by virtue of the contract which he entered into with his junior mortgagees, when in fact he got possession of the property by consent of the mortgagor, and no contract that he might have made with the junior mortgagees of this ground-rent lease could have, given him possession of the mortgaged property. He
From this vieAv of the case it folloAVS that Thomas Kit Patrick & Co. Avas the tenant of Wilcox and his assignee as first mortgagee in possession, and that it was not the tenant of any of the subsequent mortgagees. It is also apparent that Thomas Kilpatrick, even if he acted at the instance and request of Thomas Kilpatrick & Co., did not do anything adverse to the interest of the junior mortgagees when he purchased the two senior mortgages, for it could make no difference to the junior mortgagees who the owners of the senior mortgages were. The junior mortgagee had a right, if he so desired, to redeem from these mortgages and be subrogated to the rights of the senior mortgagees, no matter' who the owners Avere. He also had
The question of the necessity of a receiver for the pm tection of the mortgaged property pendente lite was tried on conflicting testimony to the trial court and the issue found against the contention of the appellant. We therefore conclude that the judgment of the trial court is fully sustained by law, and we recommend that it be affirmed.
For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.