128 Neb. 281 | Neb. | 1935
This was an action brought by the appellant to foreclose a real estate mortgage and secure a deficiency judgment from the appellees herein. On July 22, 1919, one Blanche J. Elwood executed a note for $14,000 and secured the same by a mortgage on the real estate involved in this
Appellant’s first contention is that he is entitled to a deficiency judgment for all the balance due. The record discloses that Baxter and his associates, the appellees herein, purchased the property involved here for the sum of $51,150. It was encumbered at that time by mortgages totaling $30,000, which were deducted from the purchase price. Appellant contends that these facts constitute an assumption of the mortgage indebtedness.
Appellant relies on the case of Rockwell v. Blair Savings Bank, 31 Neb. 128, from which we quote as follows: “The property was conveyed by a deed of .general warranty which makes no mention of any encumbrance. Austin Rockwell and Isaac Tebury were the only persons who gave testimony as to the terms of the agreement for the
A part of the case above quoted indicates that the liability for a deficiency was based on an agreement to pay the mortgage. This is in line with the subsequent holdings of this court. That part of the opinion that indicates a liability for deficiency where a mortgage is deducted from the purchase price is not in harmony with the decisions of this court. By deducting the amount of the mortgage and paying the balance in cash, the purchaser does not assume and agree to pay the debt. Recitations in a deed of conveyance that said deed is subject to a mortgage or that said mortgage is a part of the considera
Appellant contends that the extension agreement of July 22, 1924, entered into by Baxter as trustee for appellees, amounts to an assumption of the debt by the appellees. To this we cannot concur as there is no agreement to assume the debt contained' in the extension contract.
The appellant contends that appellees are liable for a personal judgment because of the written agreement entered into on January 5, 1928, which was signed by Helfrich and each of the appellees herein, the material part of which is as follows: “That said parties of the second part jointly and severally further agree to pay or cause to be paid, to the extent of the value of said premises, including the proceeds from the sale thereof and the income derived therefrom, to said H. L. Helfrich the interest as it falls due according to the terms of the said fourteen thousand dollar mortgage note, also the principal of said mortgage note at its maturity, as fixed by said extension agreement, and we further agree to pay to said H. L. Helfrich all other expenses and costs incurred or to be incurred by him in connection with this contract and in connection with the purchase and holding of said certifi
The appellees contend, however, that there is no. consideration for the agreement and that it is therefore void. We are of the opinion that there is a sufficient consideration to sustain it. The contract provides:
“That P. J. Tebbens may purchase said real estate at said sheriff’s sale, and receive the certificate of purchase therefor, which certificate of purchase said H. L. Helfrich agrees to have assigned to him by said P. J. Tebbens within five (5) days after said sale, on condition, however, that the parties of the second part provide and furnish to said P. J. Tebbens a sufficient amount of money to cover his bid for said property at said sale, which amount of money the parties of the second part agree to so furnish at said time.
“Party of the first part further agrees to hold said certificate of purchase as security for said fourteen thousand dollars indebtedness represented by said fourteen thousand dollar note, for the period of eighteen (18) months from the date of said certificate of sale, and in the event any other person or concern, within the time provided by statute, makes a premium bid or bids on said property, over and above the amount for which said property is sold at said sheriff’s sale, that said party of the first part will thereafter and within the time required by law, increase said premium bid or bids to an amount sufficient to protect said security under said certificate of purchase, and will thereafter take such action as the law requires to secure the confirmation of said sale and to secure a deed from the county treasurer of Douglas county, Nebraska, of said real estate, pursuant to said sale and confirmation.”
It will be noted that Helfrich agrees, not only to purchase the certificate of purchase, but he also agrees to hold the same for 18 months, protect against premium
The contract further provides: “Said party of the first part further agrees to assign and deliver said certificate of purchase over to said parties of the second part at any time, after he receives the same and prior to the time he receives the county treasurer’s deed for said real estate, upon payment by the parties of the second part or any of them of the amount then due said party of the first part on said indebtedness, and expenses, and further agrees to promptly execute and deliver to the parties of the second part his deed to said real estate after he acquires title to said real estate through said certificate of purchase, on condition that the parties of the second part or either of them then pay him the amount of money then due him on said indebtedness, and expenses.”
It will be observed that appellant agrees to assign all the benefits of his purchase to appellees either before or after the deed is issued by the county treasurer. It would appear from these portions of the contract that appellees have received a consideration for their promises made in the contract. Their property was about to be lost through a tax foreclosure and, under the arrangement made, appellant agreed to protect them from a tax sale at the bidder’s price instead of the redemption price that would have been required in order to redeem. The appellant has agreed to perform certain acts that benefited the appellees that he was under no obligation to perform. The fact that the appellant was benefited by the transaction is not material. If the appellees received any benefit, the consideration is sufficient. This court has held: “The requirement of a legal consideration to the validity of a contract arises out of the necessity or propriety of protecting the promisor against fraud and overreaching; but the law’s solicitude does not extend to the point of requiring the consideration to be of a specific character or amount, and
The appellees further contend that a deficiency judgment cannot be obtained in this case because of section 20-2141, Comp. St. 1929, as amended by chapter 41, Laws 1933, providing as follows: “When a petition shall be filed for the satisfaction of a mortgage, the court shall have the power only to decree and compel the delivery of the possession of the premises to the purchaser thereof.” This statute was passed with an emergency clause and was approved on August 26, 1933. The petition in the case at bar was filed on August 3, 1932, so that it was pending when the statute became effective. While the above statute does not contain a saving clause, such repeal did not affect the matters herein, as section 49-301, Comp. St. 1929, provides: “Whenever a statute shall be repealed, such repeal shall in no manner affect pending actions founded thereon, nor causes of action not in suit that accrued prior to any such repeal, except as may be provided in such repealing act.” The trial court therefore has the power in this case to grant the deficiency judgment.
The order of the district court sustaining the motion
Reversed.