88 Neb. 627 | Neb. | 1911
From a decree of the district court for Box Butte county, dismissing plaintiff’s suit for the foreclosure of a mortgage upon the southwest quarter of section 27, township 27, range 50, in said county, plaintiff appeals.
The material facts are that in August, 1889, defendant Paul Fisher obtained a loan of $500, from the American Loan & Trust Company, for which he gave his first mortgage bond payable August 1, 1894. To secure this bond Fisher and his wife executed to the trust company a mortgage upon the land above described. September 2, 1889, the trust company assigned the bond and mortgage to plaintiff by written assignment which was never acknowledged or recorded. Subsequently, the trust company went into the hands of a receiver, appointed by the United States circuit court. September 21, 1894, the receiver of the trust company, under an order of court, executed to plaintiff a written -assignment of the mortgage which recited that the same was given “for the purpose of perfecting an unacknowledged assignment dated September 2, 1889.” This assignment was not recorded by plain
As to the second point, we held in Ames v. Miller, 65 Neb. 204, that an assignment of a real estate mortgage is an instrument affecting the title to real estate, within the purview of our recording act; and in Gillian v. McDowall, 66 Neb. 814, we held: “An assignee of a mortgage whose assignment is not of record is barred by a decree foreclosing a prior lien in a suit to which his assignor, who appeared of record as owner of the incumbrance, was made a party, unless he records his assignment prior to the recording of the deed under judicial sale pursuant to such decree.” Under these holdings the second point must also be decided adversely to plaintiff.
Our holdings in the above cases have not been overruled or departed from and must now be considered as the settled law of this state. The service in the tax foreclosure suit upon the American Loan & Trust Company, the mortgagee of record at the time that suit was instituted, was personal service in due form. The assignment of plaintiff was not recorded until many years after defendant had obtained and recorded his sheriff’s deed and gone into possession of the lands thereunder. No attempt was ever made by plaintiff to redeem from the tax sale within the statutory period of two years, nor at any time until the commencement of this suit. All rights under his mortgage are therefore barred, and the judgment of the district court in dismissing his suit was right. Under this holding we think the other points discussed in plaintiff’s brief are immaterial.
The judgment of the district court is therefore
Affirmed.