99 Neb. 666 | Neb. | 1916
In 1889 Mary Jordan became the owner of 240 acres of land in Dakota county. She and her husband, John Jordan, lived upon and farmed the land. Debts were contracted which resulted in a number of judgments being rendered against both Mr. and Mrs. Jordan in favor of E. H. Monroe & Company and other creditors. On December 19, 1894, the Jordans, being old and incapacitated, made a disposition of their property among their children in such a manner as to secure for themselves a home for the remainder of their lives. They made and delivered to their sons, John Jordan, Jr., and Patrick Jordan, who had been farming the land as tenants, a warranty deed to the farm. In consideration for this conveyance a bond was executed by the sons in the sum of $2,000 which bound them to pay existing mortgages on the farm to the amount of $2,150 and interest, and also to pay $200 annually to their parents and the survivor, as well as to carry out other provisions for the old people. As a further consideration, separate notes, amounting in all to $3,300, were made by Patrick and John, each payable in six annual instalments to the seven other children, and secured by seven separate mortgages on the land. The notes to Michael are in evidence. There is testimony that the notes to the others were after-wards burned in a fire which destroyed the family residence. The deed and mortgages were placed on record on December 29,1894. The grantees took possession at once. On November 18, 1895, a creditors’ suit was begun in the district court for Dakota county by E. H. Monroe & Company against the grantees and mortgagees in these conveyances. The petition alleged the recovery of a judgment against Mr. and Mrs. Jordan, that the family settlement was in fraud of creditors, and prayed that the conveyances be set aside and the property sold to satisfy the judgment. At this time two of the children, Nellie Jordan and Michael Jordan, were minors under 14 years of age, and Winifred was a minor over 14 years old, all residing with their par
The service of summons upon Nellie and Michael was void, for the reason that no sendee was made upon the parents or guardian as the statute requires, and it may be conceded that the return was impeached as to service upon •four of the other children who then resided in Knox county.
Plaintiffs’ contention is that by reason of a conspiracy the decree was secretly rendered at a time when the case had been previously continued to a later term, and without notice to any of the plaintiffs; that at a later term the case was dismissed for want of prosecution, but the entry of this judgment on the trial docket was erroneously made in another case, and that Kamanski had no authority to appear for any other parties to the suit than Patrick Jordan and John Jordan, Jr. The record is voluminous and the facts are out of the ordinary. After a careful consideration of all the testimony (which must be analyzed and compared in all its parts in order to extract the truth, being
The plaintiffs charge that R. E. Evans, judge of the district court for Dakota county at the time the Monroe decree was rendered, “acting in collusion and conspiracy with the other defendants herein and other coconspirators heretofore named,” unlawfully and without authority permitted the decree to be fraudulently entered after the case had been continued. It is also charged that the conspirators alloAved the plaintiffs Patrick and John Jordan to remain in possession of the premises until December 23, 1905, Avhen Judge Evans “and Fred S.. Berry, his coconspirator,” procured an order of sale to be issued and a pretended sale Avas made to one Thomas A. Berry, who fraudulently pretended to be acting as trustee for the creditors. A number of other charges of fraud and collusion are made against these gentlemen. It is clearly shown by the testimony that at a subsequent time Evans (who had retired from the bench) and Berry, who Avere then acting for the creditors, Mr. Jay having died in the interim, offered, after the dismissal of the proceedings in the case of Jordan v. Hanson, to release all claim to the land if the Jordans would pay the amount of the judgments and costs, but this was never
It is urged that the Monroe decree is void for the want of service on the minor heirs under 14 years of age, since they were indispensable parties to the action. Indispensable parties are those who not only have an interest in the subject matter of the controversy, but (1) an interest of such a nature that a final decree cannot be made without affecting their interests, or (2) leaving the controversy in such a condition that its final determination may be wholly inconsistent'with equity and good conscience. Chadbourne’s Exr’s v. Coe, 10 U. S. App. 78; and cases cited in 15 Ency. PL & Pr. 611, 614.
Tested by this definition, did these minor heirs (1) have an interest in the controversy of such a nature that a final decree could not be made without affecting their interests? We are unable to see how a decree setting aside the deed to Patrick and John and the mortgages to the other parties defendant in favor of creditors could anywise affect the interests of these minors. Not having been brought into court, the decree was an absolute nullity as to them, and, so far as they are concerned, the deed to Patrick and John and the mortgages given to these children are valid and effectual. They have had no day in court with respect to the issue of their validity. Furthermore, the purchaser at the sale under the decree' became possessed by his purchase
Was the controversy in the Monroe case (2) left in such a condition that its final determination was “wholly inconsistent with equity and good conscience?” It is apparent that the omission of these defendants was not wholly inconsistent with equity and good conscience so far as the plaintiffs were concerned, and the presence or absence from the suit of these minors could not and did not affect the justice of the decree or the interests of the other defendants. If it had been known that the entire interests of all the children were not subject to the decree, the purchaser at the sale might not have heen willing to pay so high a price for the land, but this could not and did not affect the merits of the case. It was for the plaintiff in that case to decide whether it would proceed to decree under such circumstances, and the absence of these parties could affect adversely the plaintiff alone. It is not infrequent in cases of mortgage foreclosure that some party having an interest in the premises is not brought into the suit. This does not affect the validity of the foreclosure, but merely leaves an outstanding interest which the purchaser at the sale does not acquire. The decree was final and. effectual as to those before the court. These minor heirs, therefore, were not indispensable parties to the action, and the failure to bring them in by proper service does not affect the validity of the decree as to the other defendants.
It is urged that, because the decree set aside the deed and all of the several mortgages upon the entire 240 acres, it was indivisible. It is true this is its purport, but the decree was only effectual to do this in behalf of creditors alone. When the sale of the 80 acres satisfied the creditors’ claims, the decree had served its purpose, could operate no farther, and the deed and mortgages were as valid and effectual as if no such action had ever been maintained or decree rendered.
We have reached the same conclusion as did the district court. Its judgment is
Affirmed.