274 N.W. 494 | Neb. | 1937
This is an action for foreclosure of a real estate mortgage. In her petition plaintiff alleged, as required by statute, that no proceedings at law had been had for collection of the debt. Defendants denied that there was anything due upon the mortgage, and also denied the allegation that there had been no proceedings at law for collection of the debt. Trial of the issues resulted in a decree for defendants. Plaintiff has appealed.
The record reflects the following facts: March 2, 1925, defendants executed a promissory note for $7,000, due ten years after date, payable to one Frank Elming. This note was secured by the real estate mortgage in question upon defendants’ 40-acre farm. In the summer of 1932 Elming, the mortgagee, departed this life intestate, leaving his sister, the plaintiff, as his sole heir at law. At the time of the mortgagee’s death, partial payments had been made upon the note aggregating $2,500, leaving $4,500 of the principal unpaid. Plaintiff was appointed administratrix of her brother’s estate.
In September, 1932, defendant Vennerberg made application to plaintiff for a reduction in the amount of the promissory note secured by mortgage. He stated that unless some reduction would be made he would not pay anything further on the note, at least until it was due in 1935, and he also indicated his willingness to surrender the farm to the plaintiff unless she would be willing to make some
The evidence as to the 500-dollar reduction in the note is in conflict. Counsel for plaintiff now contend that plaintiff’s husband was never authorized to make the credit; that, at the time, the note still belonged to the estate of the mortgagee, and that no credit, representing a reduction in the amount of the note, could have been made without authority from the county court. The evidence shows that the estate of the mortgagee was finally settled December 8,
Plaintiff contends that there was no consideration for the credit, and that the debt could not be paid by less than the full amount due on the debt.
In Asmus v. Longenecker, 131 Neb. 608, 269 N. W. 117, this court held: “ ‘A valuable consideration may consist either in some right, interest, profit, or benefit accruing to one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other.’ Bouvier’s Law Dictionary, p. 613.”
In 13 C. J. 357, it is said: “The payment of a smaller sum in satisfaction of a larger is not a good discharge of a debt. * * * This rule does not apply, however, * * * where part payment is made before the debt is due, or at another place, or in a different medium than that required by the contract.” And in 13 C. J. 319, it is said: “Payment of interest in advance or before it is due is a valuable consideration. So also is the making of a payment on a promissory note before it is legally demandable.” We think thé
Plaintiff’s allegation that no proceedings at law had been had for collection of the;, debt secured by the mortgage was denied by defendants. Plaintiff offered no proof. This court has repeatedly held: “In an action to foreclose a real estate mortgage, when the allegations of the petition are denied, the burden is on plaintiff to make prima facie proof that no action at law has been instituted for the recovery of the debt.” Beebe v. Bahr, 84 Neb. 191, 120 N. W. 1021. See, also, Lyons v. Allen, 88 Neb. 41, 128 N. W. 652; Great Western Commission Co. v. Schmeeckle, 99 Neb. 672, 157 N. W. 612; Reed v. Good, 114 Neb. 777, 209 N. W. 619; Young v. Thompson, 114 Neb. 804, 210 N. W. 407. The lack of proof in this respect is sufficient to defeat a recovery by plaintiff in this action.
The record appears to be free from error. Judgment
Affirmed.